The calculation of the complement on the severe disability in cases of work-related injuries, assessment of the sentence of the Supreme Court of date 28/06/2018 - unification of doctrine 174/2017 sentence 692/2018
The starting point of the following legal reflection is the actual article 196.4 of the Legislative Law of the Social Security Act, Legislative Royal Decree 8/2015 of 30 October, to whose literal tenor us indicates: “If the worker was qualified as major invalid, will have right to an annuity according to that established in previous sections, increasing its amount with a complement, set aside for that the invalid can remunerate to the person that it attends him. The amount of the above-mentioned complement will be equivalent to the result of summing 45 per cent of the minimum base of contribution in force at the time of the fact responsible for and 30 per cent of the last contribution basis of the worker corresponding to the contingency which derives the situation of permanent disability. In no case the special complement will be able to have an amount lower than 45 per cent of the perceived pension, without the complement, by the worker”
Well, some Chambers for Social And Labour Matters of the High Courts Justice, came assuming the calculation made by the INSS in the meaning of multiplying for 14 monthly payments and to divide between 12 the result of summing 45% of the minimum base of contribution in force at the time of the fact responsible for and 30% of the last contribution basis of the worker, corresponding to the contingency which derives the situation of permanent disability.
However, the Sentence of reference comes to maintain that the correct thing is to take in the literalism of the Act, collected in the article 139.4 (actual 196.4) of the Legislative Law of the Social Security Act, that it only foresees the operation sumatoria above-mentioned previously, but without multiplying for 14 and to divide between 12, insofar as in the event of work-related injuries, extraordinary pays are included so much in the calculation of the benefits base as in the concepts included in the aforementioned addition, necessary to calculate the complement.
The Tall Court comes to solve, unifying doctrine, that is only had to take into account the literalism of the standard (article 3.1 of the Civil Code), as well as that “nothing is said with respect to that the amount of the complement has to understand referring to the one-year amount”, as a yes is established in the same precept for other matters.
This rebellion is manifestly transcendent for the correct management of financial assistance by the Collaborative Mutual Societies with the Social Security Institute.