Premature Medical Discharge by the ART: What to Do if You Are Not Cured
If the ART (Aseguradora de Riesgos del Trabajo, your employer's workers' compensation insurer) granted you a medical discharge and ordered you back to your job while you are still in pain, still limited, or simply not healed, you have to file a "Divergencia en el Alta" — a formal challenge to the discharge — before the SRT (Superintendencia de Riesgos del Trabajo, the federal workers' compensation regulator) within 5 business days. A lawyer is mandatory in that procedure, and the point of it is to force the insurer to reopen your medical treatment and restore the benefits it cut off.
Which of these situations are you actually in?
- Discharge with no disability, but you are still in pain: the ART closes your file and sends you back to work. You demand, through a "Divergencia en el Alta", that they reopen the case and treat you until you are fully recovered.
- Discharge with a disability percentage assigned: the ART admits you were left with permanent impairment and put a number on it. Here the discharge is not the fight — the percentage is, through a "Divergencia en la Determinación de la Incapacidad" (challenge to the disability rating), so that your compensation is fair.
- Rejection of the accident or occupational disease: the ART never discharges you, because it refuses to treat you at all. It argues your condition is an "enfermedad inculpable" (a non-work-related illness) or denies that the accident happened. That is a different procedure: a workers' comp claim rejection case.
Immediate action checklist (first 48 hours)
If the ART's discharge strikes you as unjustified or premature, follow these steps exactly:
- 1. Do not sign in agreement: if they push the discharge form at you, sign it and write by hand "EN DISCONFORMIDAD - SIGO CON DOLOR" (in disagreement — I am still in pain). Keep your copy.
- 2. See your own doctor or go to an emergency room: you urgently need a physician to examine you and issue a certificate stating your current symptoms and prescribing rest or the tests that are still pending.
- 3. Notify your employer: hand that certificate to your employer — keep a signed, dated copy — stating that despite the ART's discharge you are not physically fit to resume your duties and you are requesting sick leave.
- 4. Call a specialist labor lawyer: the "Divergencia en el Alta" has to reach the Medical Commission before the procedural deadline runs out. That is not a filing to improvise on your own.
Did the ART just discharge you when you know you are not ready?
Send us a photo of the ART's discharge certificate on WhatsApp. We review your situation and tell you what to do next, straight away:
Send your ART discharge on WhatsApp (11 2604-4758)1. The Divergencia en el Alta procedure
The "Divergencia en el Alta" is the administrative and legal procedure an injured worker must bring before the SRT when they disagree with the medical discharge the insurer granted them.
Its main purpose is to force the Medical Commission to carry out a fresh, impartial clinical examination and to order the ART to take you back as a patient, providing the medical, surgical and pharmacological care you are still missing.
Hard deadlines: act fast
Although the technical rules allow a claim to be brought later, the safe move — the one that preserves every right you have — is to file within 5 business days of formally receiving the ART's discharge. Letting months go by makes it far harder to prove the causal link between the accident and the pain you still have today.
Why a lawyer is mandatory
To open any procedure before the Medical Commissions, the law requires the worker to be represented by a licensed attorney. That rule exists so you do not face the insurer's doctors and lawyers alone: it levels the field across the whole procedure, from the documents you file to the medical review hearing itself.
2. Your job and your salary while the claim is pending
One of the first things workers worry about is what happens to their attendance record and their pay while the SRT studies the case — because the ART stops the wage-replacement benefit (ILT, temporary work disability pay) the moment it discharges you, and the employer starts demanding you back at your post.
Non-work-related illness leave
The correct legal route to protect both your job and your income is to take temporary non-work-related illness leave ("enfermedad inculpable", Art. 208 LCT — the Employment Contract Law). You justify your absences with certificates from your health plan or your own physician. During that leave the employer is required to pay your normal salary until the Medical Commission rules. If the SRT later orders the ART to take you back, that period is retroactively reclassified and charged to the insurer.
3. The Medical Commission's ruling
After reviewing the private medical evidence you submitted and examining you in person at the hearing, the Medical Commission issues its decision:
- It rules for the worker: it orders the ART to revoke the discharge immediately, reopen the claim and cover the treatment you still need in full.
- It rules for the ART and upholds the discharge: if the SRT's doctors confirm you no longer need treatment, your lawyer appeals to the Comisión Médica Central or goes directly to the labor courts, so that a court-appointed medical expert reviews the case.
What NOT to do after a premature discharge (critical mistakes)
- Do NOT go back to work if your body cannot take it: returning out of fear of being fired will aggravate your injury and hand the ART the argument that you were cured, or that this new pain came from something else.
- Do NOT go to SECLO first: Law 27,348 makes the SRT's Medical Commissions a mandatory, exclusive prior step. Filing a lawsuit or opening a SECLO case first gets rejected for failure to exhaust the administrative route.
- Do NOT let your medical certificates lapse: if you are not working, every day away must be backed by your own doctor. Otherwise your employer can dock your pay or dismiss you for cause, claiming you abandoned your job.
Frequently asked questions about the ART's medical discharge
What do I do if the ART discharged me but I am still in pain and not healed?
File the Divergencia en el Alta with the SRT immediately, within 5 business days, to force them to keep treating you. Do not sign the discharge in agreement.
Do I have to go back to work once I have filed the divergence claim?
If your own doctor or your health plan's doctor says you are not fit, do not go back. Give that medical certificate to your employer and take temporary non-work-related illness leave while the SRT resolves the divergence.
How long do I have to challenge the ART's discharge?
The ideal and recommended window to file the Divergencia en el Alta with the SRT is 5 business days from the date you received formal notice of the medical discharge.
What documents do I need to open the divergence claim?
Your ID (DNI), the discharge form the ART issued, recent private medical certificates showing you still need treatment, and the supporting medical tests and imaging.
Will my pay be docked while I wait for the SRT to rule?
If you properly justified your absence with certificates from your health plan or your own doctor, your employer is legally required to pay your full salary under non-work-related illness leave (Art. 208 LCT) until there is a ruling.
Do I have to bring a lawyer to the SRT's Medical Commission?
Yes. Legal representation is mandatory — and free for the worker — throughout every procedure and hearing before the SRT's jurisdictional Medical Commissions.
What happens if the Medical Commission upholds the ART's discharge?
Your lawyer appeals to the Comisión Médica Central, or takes the case directly to the labor courts so that a court-appointed medical expert reviews it. An adverse ruling at the first commission does not end your claim.
Can I skip the Medical Commission and sue the ART straight away?
No. Law 27,348 makes the SRT's Medical Commissions a mandatory prior step. A lawsuit or a SECLO filing brought before exhausting that administrative route will be rejected.
What is the difference between challenging the discharge and challenging the disability rating?
Challenging the discharge (Divergencia en el Alta) demands that the ART resume treatment because you are not healed. Challenging the rating (Divergencia en la Determinación de la Incapacidad) accepts that treatment has ended but disputes the percentage of permanent impairment — and therefore the amount you are paid.
Related procedures and legislation
- Work Accidents and ART Claims Full guide to compensation, disability ratings and the Medical Commissions.
- Glossary: Non-Work-Related Illness Leave (Art. 208 LCT) How to protect your salary when the ART refuses to treat you.
- Free Labor Telegram (Law 23,789) How to send formal, provable demands to your employer and to the ART.
- ART Rejection of an Accident or Illness What to do when the insurer denies your occupational disease or accident.