STJ defines rule for retiree to ask for review after labor action

The STJ (Superior Court of Justice) decided that the period of ten years to request the review of the benefit to the INSS (National Social Security Institute) after obtaining funds in the Labor Court starts counting after the final and unappealable decision of the labor action.

The decision was taken last Wednesday (24), in the trial of Theme 1,117. As it is a repetitive appeal, the thesis defined will apply to all processes of the type in the country. The actions that have been stopped, awaiting judgment, will be processed again, but only after the judgment is published.

The discussion in court was to define whether the statute of limitations — a ten-year period for reviewing the benefits to the INSS — counted from the final decision on the labor lawsuit or whether it would only take effect after the total settlement of the amounts.

Representatives of the insured argued that the validity would start to count after the settlement, so that the retiree could be sure of the amounts received and, thus, could ask for the correction of the benefit, a thesis that was not accepted.

The final decision puts an end to a stalemate that lasted a few years. Despite the existence of jurisprudence in the STJ on the subject in favor of the term being valid from the date on which the labor action becomes res judicata, some judges were in favor of this definition and others gave decisions counting the statute of limitations from the settlement of the amounts.

With the trial, all processes will follow the same understanding. According to Gisele Kravchychyn, lawyer and director of judicial action at the IBDP (Brazilian Institute of Social Security Law) who represented the entity in the STJ, the Court standardized its position.

The INSS, however, was defeated, as it defended the understanding that the decadence, in these cases, counts from the granting of the beneficiary’s retirement.

Decision benefits retirees and pensioners

According to Gisele, the decision benefits retirees who sued the former employer and won the right to labor funds after ten years of retirement. It should also benefit pensioners whose retiree died before the Labor Court process was concluded.

However, the review is not valid for all policyholders. Before making the request, it is necessary to look for a lawyer specialized in Social Security who will do the calculations to know if the inclusion of the labor budget in the benefit is worth it.

“This decision ensures that the delay [para pedir a revisão] waiting for a result will not harm the worker”, he says.

How to request a review from the INSS

The review request must be made through the Meu INSS app or website, or by phone, at Central 135, which is open from Monday to Saturday, from 7 am to 10 pm. Anyone who requests a correction based on a victory in a labor lawsuit must present, in addition to identification documents, a copy of the entire process.

Know how to apply:

1. Access the My INSS app or website
2. Enter your CPF number and click “Continue”; then, enter the registered password and click “Enter”
3. On the home page, in the search bar, write “Review”
4. Click on “Review” and, on the next page, go again over the word “Review”
5. The system will ask you to update your contact details; click update
6. Check the information and change data if necessary. If everything is ok, click “Next”
7. The INSS will issue alerts to explain that, whenever it requests a review, the entire calculation will be reviewed and it is possible that there will be a reduction in the benefit and even loss of entitlement.
8. Click on “Next” on the next screens and, when possible, fill in the data requested by the system and send the documentation
9. At the end, click finish and write down or print your protocol number

Understand how correction increases retirement

Whoever sues the former employer and wins the action in the Labor Court has advantages in retirement from the INSS. If you get a higher salary, you will be entitled to a higher social security contribution, which can generate a better benefit. If the contribution was already collected by the INSS ceiling, the inclusion of labor funds will not increase the retirement.

On the other hand, those who earn the right to an employment relationship can increase their contribution time. In this case, the insured may also be able to earn more. The longer the INSS is proven, the better the retirement calculation, even more so after the pension reform.