A 66-year-old worker with both legs amputated has seen how Social Security denied him permanent disability due to severe disability because he had reached the legal ordinary retirement age. The Superior Court of Justice of Aragon agrees with Social Security, since he had exceeded the legal retirement age and met the requirements to collect the delayed retirement pension.
The man was working in construction and then as a salesperson at ONCE. He began a temporary disability in June 2022 due to a chronic ulcer in an extremity, which led to a long hospital stay with numerous surgical interventions. Finally, he was diagnosed with grade four chronic ischemia in both legs, which forced doctors to first perform the amputation of the left lower limb in December 2023 and, months later, the amputation of the right lower limb in April 2024.
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In this sense, Social Security initiated the file to recognize his permanent disability in January 2024, but it was denied, since he had reached retirement age on the date of the causative event.
After this, he requested the retirement pension that was recognized and approved by Social Security in April 2024 as a delayed retirement (which occurs beyond the ordinary age), even applying the additional percentage of 4% for having remained active beyond the ordinary age.
In parallel, he presented a claim for the denied permanent disability with the aim of having his severe disability recognized from June 2022, with a regulatory base of 1,642.92 euros plus a supplement of 963.90 euros, or if this were not the case, the absolute degree, which is also 100% of the regulatory base.
When both the Social Court of Zaragoza and then the Superior Court of Justice of Aragon went to court, both ruled in favor of Social Security.
Permanent disability cannot be recognized upon reaching retirement age
The TSJ and according to the Ministerial Order of January 18, 1996 (can be consulted in this BOE) explains that when the opinion of the Disability Assessment Team (EVI or Medical Court) is issued, the temporary disability is extinguished, that is, in January 2024. By then the affected person was already 67 years and seven months, above the 66 years and two months that, in his case, marked the legal retirement age.
From there, article 195.1 of the General Social Security Law comes into play, which establishes that a permanent disability derived from common contingencies cannot be recognized when, on the date of the causative event, the person has already reached the ordinary retirement age and meets the requirements. In this case, both conditions are met, since in addition the worker was already enjoying a delayed retirement, so that the path of severe disability is legally closed.
Regarding this ruling, it must be understood that Social Security did not want to deny the disability because he had no right, but because he had already reached the ordinary retirement age and therefore should have access to the retirement pension that corresponded to him.
Although the worker alleged that other rulings allowed flexibility in these cases of disability, the court stressed that it was referring to a very specific case of reduction coefficients for disability and that in no case does it alter the general rule that prevents opening a new permanent disability right when the ordinary retirement age has already been met and consolidated.