Court will decide whether INSS can cut disability aid and retirement

The STJ (Superior Court of Justice) will decide whether the INSS (Instituto Nacional do Seguro Social) can cut disability retirement or sick pay granted by means of a lawsuit after an administrative examination carried out by a doctor from the institute itself.

The matter is in Theme 1.157, under the rapporteurship of Minister Herman Benjamin, and will be judged as a repetitive appeal, which means that the decision taken will apply to all cases of this type in the country.

There is no date for the trial yet. According to the STJ, there are at least 213 cases with different decisions. The others are stalled —stopped— waiting for the final definition. The higher court did not report the amount.

On the one hand, there is an understanding that, as it is a decision taken in court, the disability benefit can only be cut if the INSS files a review action. On the other hand, there are those who believe that the review can be done administratively, with a cut in income, after expertise.

Disability retirement is granted to insured persons who are permanently unable to work. Sickness aid is released for those who have a temporary disability. In both cases, policyholders may undergo periodic administrative review.

In the disability benefit, however, there are exceptions that prevent income from being cut. There are three: the insured person aged 60 years or older, the person with HIV or those aged 55 and over and receiving disability benefits for at least 15 years.

For lawyer Adriane Bramante, president of the IBDP (Brazilian Institute of Social Security Law), the topic is controversial, but the tendency is for the review made at the post to be validated in court. “The INSS has the prerogative to review, to summon the insured for a new examination and, if it is found that he is no longer incapable of work or disability, he has the right to discharge him”, she says.

“If it depends on the Justice to discharge, I think the issue of operationalization of the benefit will be compromised. Although there is a judicial report proving the permanent incapacity for work, the permanent is actually relative”, he says.

Roberto de Carvalho Santos, president of Ieprev (Institute of Social Security Studies), also believes that the STJ should validate the administrative review.

The failure, says the specialist, is when there is an error in the expert analysis carried out by the INSS, with a cut of a benefit granted in court, but which should still be paid, since the insured is still sick. “What often happens is that the INSS summons a person who had a judicial benefit and does not report to the official report, does not analyze this report and attests to the improvement of the person, who ends up returning to Justice and gets the benefit back. “

Lawyer João Badari, from the Aith, Badari and Luchin office, states that he advises his clients to seek the Judiciary only if the incapacity persists and there is evidence of an error by the expert or the INSS itself when cutting the benefit.

“The main cases that we go to the Judiciary are when the benefit was terminated in the fine-tooth comb and it was terminated due to an expert examination that verified the ability to work, however, analyzing all the recent medical documentation, it shows that he is incapable of work and needs to be away for treatment”, he says.

Benefit cancellation is provided for by law, says AGU

In a note, the AGU (Advocacy-General of the Union), which defends the INSS in court, states that the social security law provides for the cut of benefits after review. “The benefit is conditional, and must be paid while the incapacity to work is maintained”, says the agency.

“Thus, the INSS defends the possibility of administrative cessation of retirement due to permanent disability [antiga aposentadoria por invalidez] judicially granted after regular medical examination.”

For Francisco Eduardo Cardoso Alves, vice-president of the ANMP (National Association of Expert Doctors), there is no harm to the citizen who has the judicial benefit cut off after review by the INSS. “The principle of reviewing judicial benefits is not to face the decision of the Justice, but to review whether the same conditions of the past, when there was the decision of the Justice, still remain present”, he says.

“The disability benefit is considered by the Justice itself a precarious right, changeable, because it deals with health. The state of health today may not be the same as tomorrow.”

Federal medical experts have carried out periodic fine-tooth combs, which began in 2016, under Michel Temer. According to Alves, at the time, of every ten benefits reviewed, eight were terminated. The focus was precisely on pensions and legal aid.

Among the cuts, the expert recalls the case of an insured who obtained the disability benefit in pregnancy, due to hypertension, and continued receiving the income for 14 years. “We estimate that half of the insured persons on leave, who had their benefits terminated, were employed. There was a case of an insured person on leave due to a gait problem, but who ran a marathon”, she says.

A study by FGV (Fundação Getulio Vargas) on the PRBI (Program for Reviewing Benefits for Disability) shows that from 2016 to 2019 there were savings of more than BRL 85 billion with cuts.

In 2016, when the review began, out of a total of 1.8 million sick pay, 563,800 had been granted more than two years ago, with no scheduled discharge date, according to FGV.

2022 fine-toothed comb slashed 85% of benefits

INSS data show that, in 2022, of 11,704 benefits reviewed, 9,909 were cut, which represents 85% of the total. According to the institute, although the legal provision for the fine-tooth comb is in effect until December 31 of this year, the PRBI is suspended.

Since 2019, with the approval of law 13,846, of June 18, 2019, there is a provision for the government to review other benefits, including social security, assistance, labor and tax.