Absolute permanent disability is the degree that limits a person to carry out any type of profession or trade, not just the one they performed. To grant it, Social Security and the courts assess how the disease affects the real ability to work continuously, not just the clinical diagnosis. The problem appears when the pathology does not leave signs to the naked eye, that is, conditions such as refractory chronic migraine, in which the pain is incapacitating but the person retains mobility and a normal appearance, are usually left out of the medical court’s report in the first assessment.
That is exactly what happened to a client of Víctor Arpa (@abogadovictorarpa), a labor lawyer specialized in disabilities, who has obtained recognition of her absolute permanent disability after the initial denial of Social Security. “We have obtained absolute permanent disability for a client due to migraine,” the lawyer announces in a video published on his social networks. It details that the worker had been living for years with migraines so severe that no treatment could alleviate them.
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Before explaining the outcome of the case, Arpa describes the daily life of the affected person. Light, noise and stress caused him intense crises, and hospital emergencies followed one after another. She had tried infiltrations, botox and different new medications, without any regimen being able to stabilize her. Despite this history, the first administrative ruling was forceful. “The worst thing is that Social Security told him that he could work,” says the lawyer.
This initial refusal is common in pathologies that cannot be seen. The Disability Assessment Team (EVI), which is the INSS body in charge of proposing the degree of disability, usually relies on objective evidence (x-rays, blood tests, measurable functional scales). With refractory chronic migraine (the term “refractory” means that no treatment can control it), imaging tests are normal and the limitation is recorded only in the clinical history and neurology reports.
The criteria that the court applied to revoke the denial
After the administrative denial, the case reached the court, which finally resolved it in favor of the worker. And that is where Arpa explains that the woman had been suffering from chronic refractory migraines for years, suffered more than 15 days a month with severe pain and, in her own words transmitted by the lawyer, “many days she could not concentrate, nor endure the light, nor follow normal schedules.”
“You don’t have to be immobile to have absolute disability. If you can’t work with continuity, performance and normality, there is also disability,” says Arpa. This idea connects with the line followed by social courts in invisible pathologies such as fibromyalgia, chronic fatigue, major depressive disorders or refractory migraines. The higher degree of disability requires proving that the worker cannot maintain a minimum work performance on a sustained basis, even if he or she retains physical mobility and the external appearance of normality.
What does this pension mean for the worker?
The recognition of absolute permanent disability has two specific economic consequences regulated by the General Social Security Law. On the one hand, the pension is equivalent to 100% of the worker’s regulatory base, compared to 55% (or 75% from age 55) of total permanent disability. On the other hand, it is exempt from personal income tax, which converts the gross amount into a net amount in the income tax return and significantly increases the purchasing power compared to other contributory pensions that are taxed.
Unlike the total, which only disqualifies you from the usual profession, the absolute disqualifies you from any job. Royal Decree 1300/1995 regulates the procedure, and Social Security reviews the grade every two years unless the opinion establishes another period.
For Arpa, this resolution is relevant because it shows that invisible diseases can also fit into the highest degree when the condition is well documented by neurology and the treatments have proven to have failed. “If you too have been suffering from pain, fatigue or an illness that no one understands for years, do not normalize suffering,” the lawyer concludes.