Justice assesses whether farmer is fat in rural retirement actions

An excerpt addressing the BMI (Body Mass Index) of farmers who ask in court for rural retirement from the INSS (National Social Security Institute) has been used repeatedly in judgments of the Federal Courts of the 5th Region, which covers states in the Northeast .

In at least three cases, the text indicates that, in order to be a rural worker, the insured could not be overweight, as physical activity and low calorie content would lead him to be thin. The report had access to sentences that brought the passage in their judgments, with exactly the same words. In two of the cases, the benefit was denied. In another, there was a concession.

The cases obtained are from Pernambuco, Rio Grande do Norte and Paraíba, two of them using the Appeals Panel. The passage is repeated in the sentences, draws attention and has provoked controversy.

“Still on physical characteristics, the special insured person enjoys favored legal treatment, through the granting of social security benefits, in the amount of a minimum wage, regardless of payment of contributions, because the exercise of subsistence agriculture does not allow him [sic] financial surplus, this directly implies the restriction on the purchase and, consequently, the consumption of food, which reduces the daily caloric intake. This, combined with the exercise of strenuous physical work, leads to a low body mass index – BMI (resulting from the ratio between weight and height) in this type of worker”, he says.

In the most recent case, from 2022, the reporting judge denied rural retirement to the worker who appealed to the Rio Grande do Norte Appeals Court and, after citing the controversial passage, used other reasons to justify the denial. “The beginning of the material evidence is insubstantial and the oral evidence was unfavorable”, he says in the sentence, after taking the testimony of the insured.

In another case, from 2020, after citing the excerpt about the BMI, the judge reporting the appeals court of Pernambuco granted the rural benefit, taking into account the insured’s arguments. “It is verified that the author has a very low level of education, having difficulty identifying months and period of time, but he explains in a concatenated way his activity in the swidden, explaining with clarity of details and correction the steps of his work”, says Is it over there.

In a recent decision, taken last week, in the city of Patos, in Paraíba, the judge of the Federal Special Court denied the right to the benefit, and cited the excerpt about the insured’s BMI. Before indicating issues related to body mass index, however, the judgments bring another passage, also on the physical characteristics of rural workers.

“It is known that the physical characteristics of the individual depend both on the genotype and on the environmental conditions to which they are exposed. At this point, it is natural and expected that people undergoing manual labor outdoors [sic]like agriculture, have calluses on their hands and sunburned skin.”

Lawyers criticize use of physical characteristics

For lawyer Rômulo Saraiva, columnist for Sheet, the use of the physical characteristics of the insured in the sentences is a “path of injustice”. “There is no requirement in the legislation for you to receive the social security benefit according to your look. In the case of rural benefits, unfortunately, there is an exacerbation in using the phenotype of the farmer, rancher, shellfish gatherer, rubber tapper and fisherman as a basis for a sentence”, he says.

“It’s absurd to have to keep evaluating if the skin is very burnt or white, if there are expression wrinkles consistent with those who work in the fields, if the hand is very calloused or if you are overweight or in the ideal BMI. that may have an endorsement of rural time from remote times, although its current physical appearance is different”, says Saraiva.

Lawyer André Luiz Vasconcelos, specializing in rural pensions, from the Trio Rural page on Instagram, says that it is common, in cases of requests for rural retirement, for judges to judge based on the appearance of the insured person. “There are those who do it in a disguised way, but it is common for us to enter the hearing and the judges look at the insured person from head to toe, establishing an understanding just by appearance.”

Vasconcelos explains that there are several rural activities that do not correspond to the “imaginary of a country man”, as in the case of those who work in the extraction of milk, manufacture of cheese and in the transport of utensils, among others, and are not exposed to wear and tear.

For him, decisions based on physical characteristics can especially harm women, who perform activities considered lighter. “They are left with the lighter ones, such as making food, taking care of food, storing tools on the way to and from the swidden and they don’t have calluses on their hands.”

Another issue that Vasconcelos points out is about the idea of ​​poverty of the rural man. “There is an absurd reasoning, that the farmer has to be poor to the point of not being able to buy the food needed to nourish the body, creating the stereotype that he is the ‘wretched of the countryside’. This idea of ​​poverty has been broken for a long time. The farmer has the right to live well, send his child to a private school and choose the food he will eat”, he says.

Rural retirement is an INSS benefit paid to rural workers aged at least 55 years old for women and 60 years old for men. It is necessary to prove a minimum grace period of at least 15 years in rural activity.

Justice says that excerpt is theoretical part

Sought, the Federal Court in Paraíba stated that the section that deals with the BMI of rural workers “is not used as an argument for defining the sentence”, but is used as a theoretical part “destined to explain abstract concepts”.

On the decision of Patos, the agency emphasizes that the same judge had rendered, on Thursday morning (19), three other decisions granting rural benefits to the insured, all of them with the same passage, “which, in no way, prevented the granting of the benefit to the authors”.

Regarding the ruling in the Rio Grande do Norte lawsuit, the Federal Court in the state says that, “at no time”, was the IMC’s argument applied to support the decision. “It is common for sentences handed down in the first instance to have passages referred to in the vote. This artifice is necessary to ‘set up’ the case analyzed here.”

The Federal Court in Pernambuco states that the decision to which the report had access “confirms the sentence in favor of the author, which guaranteed the right to receive the rural retirement benefit that had been denied by the INSS” and, for that, transcribes part of the of the decision in which the passage appears. “Transcription is a common procedural technique,” he says.

The TRF-5 (Federal Regional Court of the 5th Region) informs, in a note, that the decisions taken in the aforementioned cases were of “three magistrates of the 5th Region, made up of 217 federal judges, whose jurisdiction is composed by six states of the country: Alagoas , Ceará, Paraíba, Pernambuco, Rio Grande do Norte and Sergipe”.

The court also states that “judges act under the principle of the functional independence of the judiciary”.