Justice sets rules for special retirement of workers exposed to noise

Workers exposed to variable noise and seeking special retirement from the INSS (National Institute of Social Security) obtained a victory in court to obtain the benefit more easily.

In judgment this Thursday (18), the STJ (Superior Court of Justice) defined the criteria to measure the level of noise to which these professionals were exposed during their professional activity and which can guarantee them the special benefit.

The divergence existed because, in Justice, the courts applied different understandings on the subject. In many cases, a simple average was used to calculate noise when there were different levels of noise. However, the rule harms the worker. The STJ’s decision is to use an average by specific method, which is more advantageous for the professional.

For periods of special service time after 2003, it was defined that the variable noise calculation will be done by the method known as NEN (Normalized Exposure Level), a weighted average that takes into account the exposure time and the noise volume during professional activity.

In the decision, the rapporteur of the action, Minister Gurgel de Faria, further determined that, if the special activity is only recognized in the Judiciary and there is no indication of the NEN in the PPP (Professional Social Security Profile) or in the LTCAT (Technical Report on Environmental Conditions of the Work), a technical expertise will have to be done and the noise peak criterion will be considered, that is, the highest noise level. The cases of companies that have already closed and that have not informed the NEN can be included in this scenario.

Faria highlighted that, after the enactment of Decree 4.882/2003, the reference to the standardized exposure level criterion became mandatory in the LTCAT and PPP, which “evaluates the noise level and the time of exposure to the insured at a level higher than the sound pressure of 85 decibels, in order to allow the activity to be computed as special,” he says.

“For periods of time of special service prior to the publication of the aforementioned decree, which changed the regulation of Social Security, it is not necessary to require the demonstration of the NEN, since the proof of time of special service must comply with the legal regulation in force on the occasion of the performance of activities”, said the reporting minister.

Attorney Adriane Bramante, president of the IBDP (Brazilian Institute of Social Security Law), believes that the understanding of the STJ is beneficial. This is because, before this decision, there were situations in which the Court calculated the noise using the simple average.

According to Adriane, at the administrative level, that is, outside the judicial sphere, the INSS (National Social Security Institute) adopted as a criterion the least noise of exposure. “In Justice, the National Uniformization Class, when there was variable noise, adopted the arithmetic mean [simples]”, he comments.

For the minister, if there is no correct definition of how this measurement should be made, the worker is harmed. “It is inappropriate to assess the specialty of labor by adopting the calculation by the simple arithmetic mean of the different levels of sound pressure, because it is a criterion that does not take into account the time of exposure to the harmful agent during the working day. As it is not in vogue the exposure time, could a person be subject to a certain period of 100 decibels and another of 20 decibels and it would give 60 decibels of average and it wouldn’t be right [à aposentadoria por tempo especial, que exige mínimo de 85 decibéis]”, said Gurgel de Faria.