Retirees due to INSS disability get full benefit in court

The Federal Special Courts of the South of the country have established an understanding in recent decisions that the calculation of disability retirement after the 2019 Social Security reform is unconstitutional. As a result, policyholders have obtained, in court, the right to a greater benefit.

In at least three cases —two of them from the Court Appeals Panel in Rio Grande do Sul and one from the TRU (Regional Uniformization Class) of the Federal Special Courts of the 4th Region of the country, which covers Paraná, Santa Catarina and Rio Grande do Sul— the judges understood that the insured with permanent disability cannot earn less than 100% of the average salary in their disability pensions, today called permanent disability pensions.

The Social Security reform, which came into effect on November 13, 2019, determined a general calculation for INSS (National Social Security Institute) pensions: 60% of the average salary plus 2% for each year that exceeds 15 years, in the case of women, and 20 years for men.

Before the constitutional amendment 103, disability retirement paid 100% of the average salary, regardless of contribution time, that is, a full benefit was paid. As a result, the reduction in the income of those who need to permanently withdraw from the labor market can reach 40%.

Today, only in cases where the disability results from an accident at work or from occupational or occupational diseases, the calculation remains the same as before the retirement.

According to the INSS, in February this year, 3.5 million disability pensions were paid across the country, according to the latest data from the agency.

In one of the requests for uniformity accepted by the TRU, the decision was that “even after the advent of EC nº 103/2019, the value of the initial monthly income of the non-accidental permanent disability retirement must continue to correspond to 100% of the simple arithmetic average of salaries contribution”, as provided for in the second item, third paragraph of article 26.

In the most recent decision, the group established the following thesis, based on the report of the judge Daniel Machado da Rocha: “the value of the initial monthly income of the retirement due to permanent non-accidental disability continues to be 100% of the simple arithmetic average of the contribution salaries contained in the basic calculation period”.

In this case, the calculation of the average salary for the benefit granted after retirement will take into account all contribution salaries since July 1994 or since the beginning of the contribution, whichever is later.

Calculation of sick pay is more advantageous

According to the lawyer specialized in Social Security, Bruna Bairros Cadoná, from the Kravchychyn Advocacia e Consultoria office, the decisions taken in the South of the country are pioneering and bring a greater protection vision to the insured.

According to her, the unconstitutionality has been understood because, with the calculation of the reform, the insured person who has a permanent disability pension receives less than those who are now temporarily unable to work, earning the sickness benefit.

“Whoever has assistance for temporary incapacity receives 91% of your average and, when you have greater incapacity, it generates a lower benefit value. This understanding does not exist for the Constitution, as it violates principles of reasonableness, proportionality and irreducibility”, he says. .

Another point is the difference in calculation according to what caused the incapacity, such as in cases of work-related accidents or occupational or occupational diseases.

Supreme Court must decide whether there is unconstitutionality

For lawyers heard by the Sheet, the case should reach the STF and be part of the group of other actions that already discuss the unconstitutionality of some points of the Social Security reform. Today, the theme is present in two ADIs (Direct Actions of Unconstitutionality), which deal with civil servants.

Adriane Bramante, president of the IBDP (Brazilian Institute of Social Security Law), says that there is disproportionality between the calculation of sickness benefit and disability retirement, as if it were the fault of the insured person to need the permanent benefit. “The insured has no choice. Nobody chooses to be sick, to be unable to work,” she says.

Roberto de Carvalho Santos, president of Ieprev (Institute of Social Security Studies), explains that the broad discussion needs to be admitted in the STF as a case of general repercussion. “The tendency is for this to go to the standardization group and then to the Supreme Court, as it is really a constitutional issue.”

Rômulo Saraiva, columnist for Sheet, recalls that a similar decision reached the Supreme Court, but in an individual action, which does not benefit all workers. On the occasion, Minister Rosa Weber guaranteed the victory of the insured, determining the calculation at 100% of the average salary.

For João Badari, from the Aith, Badari and Luchin office, the calculation used today in the benefit, in addition to being unconstitutional, is very harmful to the insured, since, in the case of men, they would only receive 100% of their average salary with 40 years of contribution. . For women, it is necessary to have 35 years of INSS.

Priscila Arraes Reino, from Arraes & Centeno Advocacia, considers that there is no justification for treating policyholders differently, solely due to the nature of the incapacity. For her, this point of the reform violates several principles.

“From isonomy, since the reason used for unequal treatment is not valid, proportionality —it is not proportional insofar as permanent incapacity will often have a lower benefit than temporary incapacity—, is unreasonable and still violates the principle of irreducibility that It’s a pension,” he says.

In a note, the AGU (Advocacy-General of the Union) states that “on the mentioned subject, the AGU has been working on ADIs 6336 and 6384, working on the preparation of the defense and the pertinent judicial guidance. We emphasize, however, that there are no decisions yet about them”.​

When to go to court?

Bruna Bairros says that the sooner the insured can sue the Judiciary against the calculation that reduces their benefit, the better. However, to go to court, it is necessary to ask for a review of the benefit at the INSS first, as determined by the STF, even knowing that there will be a denial.

“I always advise like this, if you had your retirement granted due to permanent disability, make the request for review, asking to review, especially if the date [da incapacidade] before the renovation”, she says.

In this case, there are judicial decisions that also guarantee greater benefit to those who already had a disability before the Social Security reform, received sick pay and, with the worsening, started to earn a disability pension, but with a disadvantageous calculation.

Although in the INSS and in the courts it is possible to apply for a review without a lawyer, the specialist does not recommend it. “Even if you don’t need a lawyer, I would advise you to seek out a specialist lawyer.”

The reason, according to her, is that in addition to demonstrating that there are already decisions guaranteeing the victory of policyholders, this type of judicial review debates the Federal Constitution, which the policyholder alone may not be able to argue. “And the Constitution is kind of subjective, you have several principles, including the principle of human dignity.”

Who is entitled to disability benefits?

Sickness allowance and disability retirement are two of the main disability benefits paid to INSS insured persons. In the case of the first, now called temporary incapacity aid, the release is made when the worker is temporarily unable to perform remunerated activity.

In retirement due to permanent disability, the release of income is made when there are no conditions for returning to the labor market, that is, the professional is permanently disabled. The decision on the type of benefit, however, is up to the INSS medical expert.

The sick insured must schedule an examination through the portal or website Meu INSS. On the day scheduled for the forensic examination, it is necessary to prove the disease, with reports, exams and prescriptions from the doctor. A new government measure provides for bringing back the possibility of indirect expertise, at a distance, with the presentation of the certificate via the internet.