To address the topic of this article, it is pertinent to indicate that work capacity is the ability and capacity that a person has to perform a specific work activity or job, for which they are remunerated.
This loss of work capacity occurs when the worker, as a result of an illness or accident, loses part of their abilities or skills to carry out their work activities.
For this reason, the assessment of the loss of work capacity is the mechanism or procedure that allows knowing, determining, and assessing the percentage of loss of work capacity suffered by the worker or the person subject to assessment or evaluation.
Now, in the first instance, this opinion must be issued by the pension fund, the occupational risk administrator, or the health provider entity, depending on the origin or type of illness or accident, and it may be requested by any person or entity related to or interested in the worker's work capacity.
However, Decree-Law 19 of 2012, which regulates the assessment of the state of disability, established in its second paragraph that one of the competent authorities to determine the loss of work capacity are the insurance companies that assume the risk of disability and death.
This is because the beneficiary and entitled party to request, only once, the compensation for permanent disability caused by a traffic accident must provide the final assessment opinion of loss of work capacity, issued by the competent authority in accordance with the provisions of Article 142 of Decree-Law 019 of 2012, specifying the percentage of loss of work capacity.
It should be clarified that if the applicant does not agree with the percentage assigned by the entity, they must express their disagreement within the following 10 days, and the entity must refer them to the Regional Board for Disability Assessment within the following five days, whose decision may be appealed before the National Board for Disability Assessment, which will decide within a period of 5 days. In this regard, the regulation on the recognition of compensation for permanent disability due to traffic accidents may be requested from the Mandatory Traffic Accident Insurance (SOAT), as they have the legal obligation to conduct the examination of loss of work capacity and assess the degree of disability of the insured, aimed at accessing the compensation for permanent disability covered by the SOAT.
Daniela Ballen J. – AZC CONSULTING ATTORNEY