Within the comprehensive social security system – Law 100 of 1993, the different ways of accessing pension economic benefits have been regulated for those workers who have made contributions to social security throughout their working lives, outlining various scenarios that may occur to request the recognition of the benefit.
Among its scenarios, we have old-age pension, survivor's pension, disability pension, and family pension. In this space, the framework for this study will be the disability pension as a reference to address one of the main requirements to access the economic benefit, that is: Loss of Work Capacity.
Within the sphere of disability pension, as its name indicates, it is that benefit recognition granted when the affiliate to the comprehensive social security system has suffered an accident, whether of common or occupational origin, that has limited their ability to perform their work with a percentage equal to or greater than 50%. Such loss must be certified by an occupational physician.
The certification or document where the physical or sensory limitation of the affiliated worker is recorded is called the Loss of Work Capacity Rating – PCL. Therefore, the PCL should be understood as that medical procedure by which the worker's inability to perform their work activities under normal conditions is evaluated.
As a general rule, the entities that conduct loss of work capacity examinations in Colombia are the EPS (Health Promoting Entities), ARL (Occupational Risk Administrators), Colpensiones, and the Regional and National Disability Rating Boards, being considered as the quintessential evidence to determine the degree of disability as support to access the economic benefits of the disability pension system of Law 100 of 1993.
However, the Supreme Court of Justice in its Labor Cassation Chamber, through Judgment SL1069 of May 15, 2024, expanded the spectrum regarding the entities that can conduct the loss of work capacity examination of affiliated workers, in light of the request and fulfillment of the requirements to access the disability pension, since it considered other means of evidence, apart from the PCL issued by the aforementioned entities, to access the recognition of the economic benefit.
The case examined by the Supreme Court involved a worker who requested the annulment of the assessments issued by the ARL, the Regional and National Disability Boards, and consequently the recognition of a loss of work capacity that resulted in a percentage greater than 50%, issued by a different entity.
Within the first instance proceedings, the claims of the lawsuit were denied, considering the labor judge that the evidence provided by the plaintiff differs from the examinations conducted by the rating boards, thereby diminishing its evidentiary value. Now, in the second instance, the Tribunal focused the legal debate on determining whether it is appropriate for the ordinary justice system to deviate from the loss of work capacity assessments by the respective boards within the recognition of the disability pension and, consequently, to give evidentiary value to those examinations submitted in compliance with the legal requirements of Decree 1507 of 2014, under the principle of concentration of evidence and sound discretion for the formation of judgment, regarding the determination of the degree of loss of capacity of the worker in the performance of their duties. The Tribunal resolved to revoke the first instance decision, so that instead, the loss of work capacity certified by an entity different from those already known would be recognized.
From the above, within the cassation appeal, the Supreme Court stated that the assessments made by the respective boards, both regional and national, can be contested before labor judges, who are competent to examine and determine the facts that contextualize the disabling condition established in the assessment. Thus, the court may, by virtue of the evidentiary debate, question its content and give greater weight to another scientific evidence that generates a higher degree of conviction, since it highlights that the loss of work capacity assessments of the boards are not binding on the judge.
Therefore, the Supreme Court did not annul the second instance decision, considering that the Tribunal acted in law by revoking the ruling and recognized the loss of work capacity assessment different from the entities indicated, considering that the plaintiff fulfilled the burden of proving the existence of the reduction in their ability to perform their work.
This jurisprudential precedent – SL1069 of May 15, 2024, opens a new panorama for the processing and recognition of disability pensions, as it allows workers who suffer some degree of disability to access economic benefits using examinations that confirm the physical or sensory reduction of the affiliate, even if these are issued by entities other than the regional and national boards, generating two scenarios, both positive and negative.
As a positive effect, it reinforces the position of evidentiary freedom that the parties have to prove the facts and claims of the disability pension request, having the power to provide the PCL by private entities, complying with the requirements established in Decree 1507 of 2014.
On the other hand, as a negative circumstance, by having a range of possibilities for the plaintiff to provide medical examinations of loss of work capacity, in search of the recognition of the economic benefits of the social security pension system, in the absence of full control of these medical certifications, it undermines the financial stability in the recognition of the disability pension, since the interested party may use any evidence, and the judge, by departing from the legal evidentiary rules regarding medical opinions, may see the principle of legitimate trust affected, understood as the loss of credibility of natural and legal persons to evolve in a stable and predictable legal environment.