There are many workers who reach a year of sick leave due to temporary disability without Social Security sending them a discharge letter. Until recently, those 365 days were the date that required appearing before the medical tribunal to try to extend the benefit. That ended with the entry into force of Royal Decree-Law 2/2023, which made the extension automatic up to 18 months (545 days). Ignacio de la Calzada, a labor lawyer and known on social networks as @un_tio_legal_, explains in a video how this extension works now and, above all, when it is advisable to go ahead and directly request permanent disability without waiting for the end of the leave.
The first thing the lawyer clarifies is the basic rule that many workers are still unclear about. “As you all know, medical leave lasts a maximum of 12 months in the ordinary period and can be extended up to 18 months, but here as long as it is presumed that you can be cured,” explains De la Calzada.
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The six-month extension is not an unconditional right, but is granted to those who still have a reasonable expectation of improvement. The General Law of Social Security (available in this BOE), in its article 169, includes it in writing and transfers exclusive control of the leave to the Social Security Medical Court from the first year.
This is how you automatically enter the six-month extension
The next point that the lawyer addresses directly affects the worker’s pocketbook and nerves, because it eliminates a procedure that for years generated doubts and prolonged silences from the Administration. “Workers who have been on medical leave for 365 days, which is the ordinary period of medical leave, and do not receive a letter giving them discharge, automatically go to the extension up to 18 months,” he recalls. The benefit is not interrupted nor does its amount change during this extra period. It remains at 75% of the regulatory base, exactly the same as in the last section of the ordinary year, and the company continues to act as delegated payer until that period ends.
During these six additional months, the Social Security Medical Court evaluates the worker’s clinical evolution and decides whether to extend the sick leave, grant discharge or recognize a disability pension. “They may decide to discharge you or not depending on your situation, where it has to be assessed if there is a forecast of a cure, if it is simply that it is dragging on because perhaps you have something pending, some intervention, and in those six months you can recover,” details De la Calzada.
When can you request permanent disability without waiting for the 18th month?
The least known nuance of the video is also the most useful for the worker with a long process. “If your injuries are permanent and irreversible, what you have to consider is the moment to request permanent disability, and it is not necessary to exhaust all the medical leave,” warns the lawyer. The idea goes against a widespread belief according to which one must necessarily wait for the 545-day limit to start the file. The regulations allow us to go ahead when a key circumstance occurs that De la Calzada himself explains in detail.
“The only thing you need to exhaust to be able to request a permanent disability is all the possible existing treatments. If, after the year, you see that you have exhausted all the treatments, that the only thing you have left is, for example, pain, that the pain is nothing more than a consequence of an injury, a permanent disability can be initiated,” he points out. This means that a worker who has undergone surgery, rehabilitation, physiotherapy or pharmacology without functional recovery is now in a position to request a pension, without having to rush the calendar until day 545.
The lawyer connects it with the procedure that Social Security activates ex officio when the 18th month is reached. “Social Security in some cases reaches 18 months and it is from there, at that moment, when it says, I discharge you or I give you a permanent disability. If it discharges you it is because it presumes that there is already a cure or that it has done everything possible for you. So, you can also request it at that moment, but you can go ahead of time because the law establishes it,” he explains.
The Disability Assessment Team has, in this ex officio procedure, a maximum period of 90 days to resolve between three paths, something that lawyer Pablo Ródenas also explains. The first is medical discharge with return to work; the second, the additional extension of 180 days if the medical inspectors detect a real expectation of improvement; and, the third, the permanent disability pension in any of its degrees.
De la Calzada does not end the video without giving legal advice. “If you spend more than 365 days, you will automatically go to extension. And furthermore, if you see that your injuries are already permanent, irreversible and chronic and have no forecast of improvement, you can request a permanent disability,” he concludes. And he signs, as in each of his videos, with the tagline that he has turned into his own brand: “don’t let them fool you.”