Víctor Arpa, a labor lawyer specialized in permanent disability, has explained that “if you have a L5-S1 herniated disc and you have a physical job, it is likely that you can get a permanent disability.” That is, whether in the degrees of total or absolute, especially in those workers who must make efforts in their work.
The permanent disability pension is a benefit designed to financially protect those workers who, due to an accident or illness, cannot return to work, either partially or totally, as stated in article 193 of the General Social Security Law.
There are four degrees, of which the total is the one that disqualifies one from the usual profession, although with the possibility of working in another activity compatible with the limitations, and the absolute is the one that does not allow one to work in anything, in addition to there being other differences between total and absolute permanent disability.
Permanent disability due to a L5-S1 disc herniation
The L5-S1 disc herniation affects the disc that is between the last vertebra of the lumbar area (L5) and the first of the sacrum (S1), the triangle-shaped bone that connects the spine to the pelvis. For Arpa, “the L5-S1 is the hinge of the body, it connects your lumbar spine with the sacrum.”
“When the disc ruptures or shifts, it can compress nerves and cause lower back pain, sciatica, loss of strength and difficulty walking or standing,” explains the lawyer. “This limits almost any job,” he says.
Now, each case is different, and Social Security looks at how the hernia affects the worker when doing his job. This is so, since Social Security does not have a list of diseases to recognize a permanent disability, since what it looks at is how that illness affects the worker.
For example, Social Security had denied disability three times to a domestic worker with a herniated disc and the nerves in that area damaged on both sides (bilateral L5-S1 radiculopathy), operated on without success, but the Superior Court of Justice of Cantabria said that she did have the right, since she could not make beds, scrub floors or carry buckets. On the other hand, the TSJ of Madrid denied it to a hairdresser with wear and tear on her spine and protrusions (bulging discs) in L4-L5 and L5-S1, because she could walk normally and work standing up.
The types of disabilities that can be recognized
Arpa explains that, for Social Security to recognize disability “you have to demonstrate two things. That the pain is intense and persistent despite all the treatments and that your limitations are permanent.” Furthermore, the law requires that these ailments can be objectively verified, with medical reports and tests.
If the hernia is considered a common disease, Social Security requires that you have contributed a minimum amount of time. Workers registered at age 31 or older are asked for a quarter of the time that has passed since they turned 20, with a minimum of five years, and a fifth of what is required must be within the last ten years. If the injury comes from an accident, a minimum contribution is not required from those who are discharged.
It is possible that, after requesting permanent disability, it will be denied, so you must file a claim and if it is denied, go to court. Regarding this, Arpa points out that his office has achieved “favorable rulings even after other cases were rejected.”
Regarding how much is charged for permanent disability due to a herniated disc, Arpa details that if it is a total permanent disability, “55% of your regulatory base is charged or 75% if you are over 55 years old.” Keep in mind that, if the disability comes from a common illness, this cannot be less than the current minimum pension, as stated in article 196 of the General Social Security Law.
Social Security gives this 20% increase, since it is understood that at 55 years of age and with a disability it is more difficult to find work. Now, if you find a job, you lose that increase, but it is regained when you are unemployed again. This supplement was collected last year by almost half of the pensioners who receive total disability (331,922 of the 677,337 pensions), according to data from the National Social Security Institute to which they have had access. NewsWork.
A court forces Social Security to give a pension of 520.03 euros for absolute permanent disability to a home help assistant with a ‘failed back’
Social Security pays 24 monthly payments of the regulatory base at once to workers with partial permanent disability, who only pay income taxes for 70% of that compensation.
Arpa gives an example with a regulatory base of 1,500 euros. “We are talking about about 825 euros to 1,125 euros per month forever,” he points out. In the case of absolute permanent disability, 100% is charged, that is, “you would charge 1,500 euros per month,” explains the lawyer.