23

Nov

2022

The problem of relapses in temporary incapacity processes

The problem of relapses in temporary incapacity processes

There are occasions when a worker who has been discharged from temporary incapacity (TI) has to apply for sick leave again because he/she has the same ailment. When this happens, we are talking about sick leave due to a relapse.

 

The concept of relapse, from an occupational point of view, is defined in article 169.2 of the General Law on Social Security

 

A relapse in the same process of temporary incapacity shall be considered to exist when a new medical leave occurs for the same or a similar pathology within 180 calendar days following the effective date of the previous medical discharge. Periods of relapse are calculated for the purposes of the maximum period of temporary incapacity and its possible extension.

There are occasions when a worker who has been discharged from temporary incapacity (TI) must reapply for sick leave because he/she has the same ailment. When this happens, we are talking about sick leave due to a relapse.

The concept of relapse, from an occupational point of view, is defined in article 169.2 of the General Law on Social Security, which establishes that:

A relapse in the same process of incapacity is considered to exist when a new medical leave occurs for the same or a similar pathology within 180 calendar days following the effective date of the previous medical discharge.

Therefore, if more than 180 days (6 months) have passed since the date of the medical discharge, it would be a different temporary incapacity (TI), even if it is due to the same ailment, and we would not be talking about a relapse. Or also, if the 180 days have not elapsed and the new sick leave is due to a completely different pathology or cause to the one that had caused the initial sick leave.

For the purposes of calculating the maximum duration of the TI, is it considered a relapse if the worker, after being discharged for recovery and returning to work, is again discharged for the same ailments that caused the previous sick leave?

In this case, the previous period will only be taken into account if no more than 180 days have passed between the medical discharge and the next medical leave.

If more than 180 days have passed since the previous process, whether the injuries are the same, it would be a new examination and, in the case of common illness, 180 days of contributions in the last 5 years would have to be accredited.

In the case of different injuries, even if 180 days have not elapsed, a new examination would also be necessary, and the above-mentioned requirements would have to be met.

The patient must undergo a new medical examination and meet all the necessary requirements for receiving temporary incapacity benefit, such as, for example, proof of at least 6 months of contributions in the previous 5 years in the case of a common illness. In the case of occupational accidents or illnesses, no minimum contribution period is required.

Temporary incapacity limits

The limit for temporary incapacity is 365 days, with the INSS being able to grant an extension of 180 days, up to 545 days.

In TD processes that do not exceed 365 days, the competent body to consider that there is a relapse will be,

– The Mutual Insurance Company in the case of occupational contingency, occupational disease or accident at work.

– The family doctor if the sick leave was due to a common contingency, i.e., common illness or non-occupational accident.

– Once the 365 days of sick leave have elapsed, the INSS will be the only body responsible for issuing a new medical leave.

For the calculation of these maximum durations, the periods of relapse will be considered, which will be cumulative. For the purposes of determining the duration of the benefit, periods of relapse in the same process shall be considered.

When a worker has been denied permanent incapacity and subsequently relapses, the INSS will be the only competent body to issue a new medical leave for the same or a similar pathology.

With regard to counting the 180 calendar days for it to be considered a relapse, these will begin to be counted from the decision to deny permanent incapacity. An exception is made in the case where the refusal of permanent incapacity is preceded by the worker’s request for the initiation of proceedings.

What happens if the relapse occurs once the 545-day threshold has been exceeded?

Once the right to temporary incapacity benefit has expired due to the expiry of the period of 545 calendar days, with or without a declaration of permanent incapacity, entitlement to temporary incapacity benefit for the same or a similar pathology can only be generated if a period of more than 180 calendar days has elapsed, counting from the resolution of the permanent incapacity, provided that the worker fulfills the requirements for this, counting only the contributions made from that resolution onwards.

Receipt of benefit

As it is a relapse, you must treat this leave as if it were a continuation of the previous one. In other words, the non-payment of benefit during the first three days of sick leave and the employer’s obligation to pay it from the fourth to the fifteenth day are only taken into account once. Therefore, if the previous sick leave lasted for less than three days:

– If the previous sick leave lasted less than 15 days (e.g. 10 days),   your employer will only have to pay the benefit for five days in the   event of a relapse (for this purpose, the first day of sick leave due to   a relapse will be the 11th day, so you will pay the benefit from the   11th to the 15th day).

– If the previous sick leave lasted more than 15 days, your employee   will be entitled to the benefit from the first day of the relapse,   which   will be paid by the INSS. And if the previous sick leave lasted   more   than 21 days, your employee will be entitled to receive 75%   of the   regulatory base from the first day of TD due to relapse.

Communicate the relapse via the RED system. If you draw up the pay slip taking into account the above, but do not notify the fact that it is a relapse, as well as the new regulatory base, the TCs that you will present the following month will not coincide with the TI data that you have communicated in the RED system (you will declare in the TCs that the payment of the subsidy is at the Social Security’s expense, while the Social Security will apply the initial sections of the TI ex officio).

What happens if, at the time the worker “relapses”, she is not working for the company because the employment relationship was terminated prior to this through unfair dismissal?

Considering the current Social Security regulations and the jurisprudence of the Supreme Court, the temporary incapacity previously granted to the worker would be processed due to a relapse.

This is so, as the established requirements are met, namely that the relapse was caused by the same or a similar pathology within 180 calendar days of the date of the initial medical discharge (4 April 2022), when there was an employment relationship between the company and the worker in question, even though on the date of the aforementioned relapse it had been terminated.

In this sense, according to the Supreme Court ruling of 1 April 2009, once the employment relationship has ended, the worker will continue to be entitled to receive the financial benefit for temporary incapacity because of a relapse, provided that the initial sick leave occurred when the employment relationship was in force. Thus, it is worded as follows: “in the case of a possible “relapse” in the same TD process [because the maximum duration period has not been exhausted and because there has been no intermediate work activity for more than six months], the event causing the same must be situated on the date on which the initial sick leave occurred, so that it is to this last date that the concurrence of the requirements of registration with the Social Security and sufficient sick leave must be referred; The non-existence of income on the date of the subsequent leave [due to lack of registration with the Social Security] and the nature of a substitute income which corresponds to the subsidy cannot be validly argued. (…) What is really being repaired [with the TD benefit in such a situation of non-registration] is the worker’s situation, which prevents him from accepting suitable offers of employment, or simply from working”.

Along the same lines, the Supreme Court ruled in the Appeal for Unification of Doctrine, no. 4415/1999, on 5 July 2000, determining the following: “a worker who suffers a relapse of his or her condition is entitled to the benefit, even if it occurred within six months of being discharged after recovery and despite the fact that at the time of the relapse he or she was not working or registered with the Social Security, provided that he or she had been working when the accident occurred and had received the corresponding benefit”.

For further information, please consult with Labour counselling