See professions that have special INSS time in Justice

Workers may find it difficult to recognize the time of special service with the INSS (National Social Security Institute), and the Courts are often used to obtain it. Workers exposed to harmful agents on a regular and permanent basis or from activities with risk to life, as well as certain professional categories, may be entitled to work performed before April 28, 1995.

The report researched decisions of TRFs (Federal Regional Courts) that were favorable to workers in 2022 and recognized special service time or the right to special retirement. There are cases of doctors, guards, drivers and workers in the electrical sector, for example. The INSS may appeal to higher levels in part of the decisions.

The selected examples should not be seen as a guarantee that similar cases will achieve the same result, says an expert, but serve as a reference of what can be sought in Justice and what workers are achieving in their lawsuits.

“It may be precedent, north for another decision to be that way, but the judge is not obliged to follow that decision”, says Adriane Bramante, president of the IBDP (Brazilian Institute of Social Security Law). The expert says that only qualified precedents are binding, as in the case of repetitive appeals by the STJ (Superior Court of Justice) or matters judged under general repercussions by the STF (Supreme Federal Court).

The lawyer specializing in social security and special retirement law Taís Santos says that precedents are widely used in judicial requestsi, even if there is no guarantee, and that there are divergences in the Justice for requests for recognition of special time.

“A part of the Justice understands that, if the agent is harmful, but it is not included in the list of regulatory decrees, it should not be recognized as special. Others understand that even if it is not in the decree, if the expertise proves that it is a harmful activity , is entitled to this recognition.”

In addition, there are peculiarities linked to each activity and case. “If the request was denied by the INSS, seek a specialist in social security law to understand the best way forward”, recommends the lawyer.

Decisions by professional category in TRFs

Before the law 9,032, of April 28, 1995, some professional categories automatically qualified for special retirement (called presumption of insalubrity). The list of professions is extensive, including doctors, firefighters, metalworkers and teachers.

Thus, for periods worked before the law, proof of having exercised one of the professions on the list is sufficient. Check out examples of cases recognizing this right in Federal Regional Courts in 2022:

Doctor

• The decision of the 7th Panel of the TRF-3 (Federal Regional Court of the 3rd Region) recognizes the right and can no longer be appealed. The profession is among those entitled to recognition of the special activity before 1995, given the contact with patients or infectious materials
• The same justification applies to laboratory doctors (pathologists), laboratory technicians, dentists and nurses, for recognition of periods of activity prior to law 9032

farm driver

• He worked in the transport sector, in a poultry company establishment. His duties were to direct and transport loads, considered corresponding to that of a truck driver.
• The period had been recognized as a special activity by the 3rd Federal Social Security Court of São Paulo, but the INSS appealed
• The decision in favor of the insured is from the 10th Panel of the TRF-3

Decisions for exposure to harmful agent

As of 1995, there is no longer any presumption of insalubrity. The worker is entitled to the recognition of the time of special service if there is exposure to harmful agents in permanent, non-occasional or intermittent work, proven in the PPP (Profile Social Security).

There is a list of harmful agents, but this list is considered exemplary, not exhaustive — that is, there are recognitions for cases that are not on the list, but it is proven that the activity put the worker’s health at risk.

What the Court Decided

See examples of decisions recognized in TRFs in 2022 with the criterion of exposure to the harmful agent:

healthcare industry driver

• The driver transported patients to municipal health units and external trips, assisting in the removal of patients using stretchers for locomotion
• The length of service was recognized as special due to exposure to bacteria and viruses, as evidenced by the PPP (Professional Social Security Profile), on a regular and permanent basis, between 1993 and 2016. In the decision, it is stated that in the PPP there was “express mention of permanent exposure to biological agents”
• The decision is from the 8th Panel of the Federal Regional Court of the 3rd Region

subway movement officer

• Worked as a maintenance assistant, warehouse assistant and subway movement officer
• It had special activity recognition for exposure to electricity greater than 250 volts. In the decision, it is stated that the minimum exposure to high electrical voltages already offers a potential risk of death to the worker, so it does not need to occur during the entire working day to allow recognition of special service.
• Habitual and permanent exposure to aromatic hydrocarbons, harmful agents of compounds such as gasoline, diesel, alcohol, paints and solvents, was also recognized. With carcinogenic potential, they are entitled to a special count regardless of their concentration
• The decision is from the 10th Panel of the TRF3

silkscreen printer​

• Worked from 1997 to 2015 as a silk screen printer, also known as serigraphy, exposed to toluene (aromatic hydrocarbon), as stated in PPP
• Toluene is considered a carcinogen, guaranteeing special service life regardless of its concentration
• Decision of the 10th Panel of the TRF-3

energy company worker

• Worked with exposure to electrical voltages greater than 250 volts, considered a special condition because there is an innate danger to exposure, even if it is intermittent
• INSS filed an appeal with the INSS, stating that electricity is a dangerous agent, not unhealthy, and that there was no regularity and permanence of contact with electricity above 250 volts in the activity
• The decision is from the 2nd Panel of the Federal Regional Court of the 1st Region

watchman and watchman

For the period prior to April 28, 1995, the INSS classifies the activity of watchman or guard as special if it involves the use of a firearm.

For activities carried out to date without a firearm, the TNU (National Class of Uniformization, of Federal Special Courts) established the thesis in May that the activity is special, regardless of the use of a firearm, provided that there is proof of the equivalence of the working conditions, by any means of proof.

Bramante claims that this proof is extremely difficult. “It is recommended that the insured file an administrative appeal to have the period until 1995 recognized as special, given the statement 14 of the Social Security Appeals Council.” The council is a judgment body for administrative appeals, and statement 14 says that the position of the guard, watchman or watchman is independent of the use, possession or possession of a firearm.

Among the judgments awaited in the area is the Supreme Court, which will decide whether it is possible to grant a special pension to guards and guards who prove exposure to harmful activity with risk to life for a period after 1995, even after the Social Security reform. The topic has general repercussions.

Special time of endemic agents

Another topic under discussion is constitutional amendment 120, of May 5, 2022, which establishes that community health agents and agents to combat endemic diseases will have special retirement “due to the risks inherent to the functions performed”.

Adriane Bramante affirms that there is discussion whether or not this definition is constitutional and regulation will be necessary, with criteria for analysis and procedure. “Article 201, paragraph 1 of the Constitution, states that the classification by professional category or occupation is prohibited, and here comes the amendment and includes health agents, which is a professional category.”

For Gustavo Bertolini, from ABL Advogados, it will be necessary to observe how the Judiciary will behave, but the purpose of the rule must be taken into account. “I believe that [o intuito] has been to clarify that community workers are exposed to biological agents, even if not on a regular and permanent basis, and are on the front line with risk of contamination.”