The cut in sick pay paid by the INSS (National Social Security Institute) can be challenged and revised if the insured is able to prove that there was an error on the part of the municipality at the time of the reassessment. Understanding the dynamics of the concession process, the institute’s rules and requirements is the way to recover the payment.
O Now It consulted experts to identify ten types of errors that may have occurred and that led to the cut or suspension of the benefit for temporary incapacity, the former sick pay, which is granted when the insured is unable to work.
The law guarantees that payment must be maintained for as long as the incapacity persists. If, by chance, the insured does not recover his ability to work, which is assessed in the medical expertise, the benefit must be transformed into disability retirement.
“Often, the insured is surprised by the cut in the benefit and doesn’t know what to do. He thinks it’s a definitive and irreversible situation, but it’s not like that. If there was any error, the insured is entitled to the benefit”, says lawyer Janius Arêdes, from the Arêdes Advocacia office.
The worker has a period of up to 30 days, after the result of the expertise, to contest the result with the INSS. It is necessary to present evidence to justify that the cut was improper. The assessment will be made by the Social Security Appeals Board.
“The evidence that the insured needs to have depends on the reason that led to the court, but generally, all the documents he manages to gather about his health and professional activity are important evidence”, says lawyer Alessandro Carvalho, from the Alessandro law firm. Carvalho Lawyers.
For Carvalho, due to massive calls from policyholders for reassessment, mistakes can happen and the worker needs to be careful not to be harmed. In addition to the administrative review, the worker can file a lawsuit in a Special Federal Court or in the TRF (Tribunal Regional Federal) in his region.
During the course of the judicial process, the insured will undergo a new inspection, carried out by a medical professional appointed by the Judiciary. “Judicial review is faster, but the policyholder needs to have a basis for their action,” he says.
“The experts chosen by the Justice have a great technical knowledge about the assessment of work capacity. They are able to carry out an in-depth analysis of whether the insured can or cannot work. In the process, the medical reports, medications and the worker’s health condition are also evaluated”, says Carvalho.
Those who opt for administrative review, at the INSS itself, also need to surround themselves with a lot of evidence and documents. “The cuts are not indisputable, although there is a tendency for the INSS to maintain the opinion of the in-house doctor”, explains lawyer Rômulo Saraiva, from the office Rômulo Saraiva Advogados Associados.
“The idea is also to present, in the administrative appeal, reports, exams and prescriptions that can convince the revisionist expert that the INSS doctor may have been wrong”, he adds.
According to Carvalho, in the last seven or eight years, there has been a period of greater rigor and austerity in the analysis of granting and reviewing sick pay. “Often, the increase can be undue due to the logic of the need to reduce spending on Social Security”, he assesses.
Wanted by Now, the INSS states that the role of the institute and the Undersecretary of the Federal Medical Expertise in granting, maintaining and reviewing the benefits is “entirely guided by what is established in the legislation, always seeking the recognition of the rights of citizens who demonstrate to comply with the requirements established therein” .
The reassessment of benefits, according to the institute, is a procedure provided for in the concession rules and is not related to an expense reduction policy. Data from the institute show that, between January and July 2021, the total number of disability benefits terminated was 5.4% lower than in the same period in 2020.
Disability benefit | how to recover
- Policyholders who receive benefits for temporary disability from the INSS, such as sick pay, are being
- summoned for a reassessment of the concession
- The fine-tooth comb can lead to a cut in social security income, but there are other situations in which this can also occur. Now shows you what to do to win back aid
Check out ten cutting situations and what to do
1 – Pente-fino
What to do:
- In this case, there are two ways to try to retrieve the cut aid
- One of them is to file an appeal against the expert’s decision after receiving the result
- Another is to wait 30 days after the result of the expertise and ask for the benefit again
If the INSS continues to deny the income, it will be necessary to file a lawsuit
2 – Documentation failure
- The insured may lose the benefit if, in the reassessment, the INSS has any doubts about the documentation presented in the concession
- The lack of any document or incomplete data in reports, work papers and exams, among others, may also be questioned.
What to do:
- The insured must resolve the pending issues to recover the social security income
- In this case, the ideal is to file an appeal, presenting the correct documentation
3 – Medical report refused
- In the reassessment, the INSS may consider the insured’s medical report to be inadequate
- This can happen if, when analyzing the paperwork, there are failures such as the lack of a stamp and the number of the physician’s CRM (professional registration), or failure in the signature
What to do:
- When filing an appeal, the worker must submit a new medical report with the specifications required by the INSS
- If you cannot get a new document, due to difficulties in scheduling a new appointment, it is possible to file a lawsuit in court
4 – Scheduled discharge without renewal request
- When sick pay is granted, the insured will have a scheduled medical discharge based on their illness
- If he is not recovered, he must request renewal of the benefit within 15 days before the end of the aid.
- If you do not do this, the INSS will cut the income
What to do:
- If you are still disabled, the insured will need to make a new request for sickness benefit
5 – Expert considers that the insured is fit for work
- If the expert decides to discharge the insured, but the worker considers that the expertise was not carried out correctly, it is possible to try to reverse the decision
What to do:
- In this case, the insured can make a request for reconsideration or file a lawsuit against the INSS in the Federal Court
6 – Absence on the day of the examination
- The insured who is absent on the day of the reassessment examination because he forgot, became ill or delayed due to traffic jams or other reasons, may try not to lose the benefit
What to do:
7 – Contribution below the minimum number
- The sick worker must have at least 12 contributions to be entitled to sick pay
- The rule applies to those who request the non-accident benefit, that is, common assistance, which is not linked to illnesses or work-related accidents
- If you do not meet this condition, there is no right
What to do:
- If you can prove that the INSS assessment is wrong, the insured can open an administrative procedure to get the aid
- You must present proof that you have the 12 minimum contributions necessary to get the benefit
8 – Loss of Insured Quality
- The quality of insured is the condition of every worker who pays the INSS on time.
- If the INSS considers that the worker has lost this condition, the sick pay may be cut
- Even if there is a period without paying contributions, the beneficiary can maintain their insured status if they are in the so-called grace period.
- This period is the number of months or years that the worker is entitled to social security benefits without paying the INSS, if he has already been a taxpayer
- It ranges from three months to three years, depending on the time the INSS was paid and the professional’s condition (whether he had a formal contract or was self-employed, for example)
What to do:
- The worker must present documentation that proves his quality of insured
- If you had a formal contract, you must send photos of the registration date, how much time was registered, in addition to the paperwork with the date of dismissal
9 – Social status was not considered
- In general, the INSS medical expertise is not required to consider the social status of the insured
- This is because, in cases of disability benefit, what is assessed is the ability to work
- However, if the citizen understands that his/her financial situation is very important for the granting of the benefit, he can try the income in court
What to do:
- The worker can file a lawsuit against the INSS in Justice without a lawyer, in the Special Federal Court
- In this case, the total value of the action must be up to 60 minimum wages, which gives BRL 66,000 this year
10 – In case of arrest
- The law says that the benefit can be terminated if the insured is arrested
- However, if he is released and continues with the disability that guaranteed him the assistance, the benefit must be reactivated
What to do:
- In this case, the insured will have to file a lawsuit
- The insured who had the benefit suspended or terminated may enter the Social Security Appeals Board, with the presentation of evidence, through an appeal request, that is, appealing from the court
- The insured has a period of up to 30 days to appeal after the result of the medical examination
- The order is made through My INSS (application or website) or at Central 135
- The insured can file a lawsuit in the Special Federal Court with a limit on the amount of arrears is up to 60 minimum wages
- If the arrears are more than R$ 66,000, it is necessary to hire a lawyer and seek the common social security court
Sources: lawyers Rômulo Saraiva, Alessandro Souza and Janius Arêdes (Arêdes Advocacia)