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Supreme Court Confirms That Disability Assistance Can End Automatically After 120 Days, Without Need for New Expertise, But Insured Maintain Right to Request Extension if Inability Persists.
The Supreme Federal Court unanimously confirmed the validity of the scheduled discharge in disability assistance, reported the Brazil Agency on Monday (21).
The Court acknowledged that the benefit for temporary incapacity can have a Benefit Cessation Date (BCD) defined at the time of granting, and when there is no express deadline, automatic cessation occurs after 120 days, excusing a new assessment.
This understanding preserves the possibility of extension at the request of the insured, with no maximum limit on extensions, as long as the request is made within the indicated timeframe.
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What Becomes Effective with the Decision
The plenary endorsed that, in practice, the INSS can set the end date for disability assistance and the return to work without requiring the insured to undergo a new medical evaluation on that date.
It was also established that if no deadline is mentioned in the granting act, the benefit ends in 120 days from the grant, unless there is a timely request for an extension.
The request maintains protection while the Administration re-evaluates the incapacity.
Possibility of Date Earlier Than 120 Days
In addition to the standard deadline when there is no BCD, the STF recognized the legitimacy of the INSS to estimate a date earlier than 120 days for scheduled cessation, according to the clinical picture and the elements of the administrative process.
Thus, the discharge can be anticipated when there is a technical indication, without prejudice to the insured’s right to request the continuation of the benefit.
How the Thesis and Legal Foundation Were Established
The case was judged in Extraordinary Appeal 1.347.526 (Theme 1.196), with general repercussions recognized, and was reported by Minister Cristiano Zanin.
In the winning vote, he stated that the adoption of the BCD is a legislative option of material social security nature, aimed at rationalizing the system and efficiently using expert capacity.
The rapporteur emphasized the temporary nature of disability assistance and highlighted that setting a timeframe prevents undue payments and helps reduce waiting lines for evaluations.
The established thesis states that there is no violation of Articles 62 and 246 of the Constitution by providing an estimated deadline in §§ 8 and 9 of Article 60 of Law 8.213/1991, as amended by MPs 739/2016 and 767/2017, later converted into Law 13.457/2017.
Origin of the Process and Controversy in Sergipe
The appeal was filed by the INSS against a Federal Court decision in Sergipe, which had dismissed the scheduled discharge in favor of an insured and ordered a new assessment.
The local controversy involved, among other points, the claim that the issue could not be addressed by provisional measure.
By reforming this understanding, the STF considered the rules that updated the Benefits Law constitutional and consolidated the national application of the rule.
What the Insured Needs to Do to Maintain the Benefit
When the BCD is indicated in the granting act, the insured must observe the date and, before it arrives, submit a request for extension through INSS channels, attaching updated medical documentation.
In the absence of a deadline, the reference becomes the milestone of 120 days from the grant.
Without the request in a timely manner, the payment is automatically terminated, even without a new assessment, as validated by the STF.
Practical Effects for Social Security Management
The consolidation of scheduled discharges tends to standardize procedures and streamline management of benefits for temporary incapacity.
By reducing assessments solely aimed at confirming discharge dates, the measure frees up capacity for initial analyses and complex cases.
Nevertheless, the right to re-evaluation remains intact when there is a request for extension, with maintenance of support if incapacity persists and is proven.
The Role of the Rapporteur’s Vote
In the understanding expressed by Cristiano Zanin, the provision of a deadline does not eliminate social protection, as the insured can continue to request the continuation of the benefit whenever necessary.
The establishment of the BCD was treated as an instrument of predictability and combating undue payments to those who have already recovered their work capacity, without preventing individual cases from being re-examined in light of new medical elements.
What Changes for Ongoing Processes
By establishing a thesis with general repercussions, the Supreme Court guides lower court decisions in similar cases.
Processes that discussed the need for mandatory expertise for each termination tend to follow the new parameter, recognizing the possibility of automatic termination by scheduled date or, in its absence, by the legal period of 120 days.
At the same time, requests for extension remain the appropriate avenue to demonstrate the continuity of incapacity.
Point of Attention: Communication and Deadlines
From now on, the communication to the insured about the BCD and the deadlines to request an extension gains importance.
Clear guidelines reduce the risk of cuts due to the expiration of deadlines and prevent premature returns to work in situations of incapacity.
It is up to the INSS to specify the dates and procedures.
In turn, the worker must monitor the benefit and act before the end, presenting updated reports and assessments.
In Summary, How the Flow Remains
Once disability assistance is granted, the Administration can set the BCD. If there is no indication, the 120 days rule applies. When the date arrives, the benefit automatically ceases without new assessment.
If incapacity persists, the insured requests an extension and undergoes administrative re-analysis, which may maintain payment for successive periods.
This arrangement was deemed constitutional and of social security material nature by the STF.
With the decision in effect and the thesis established, what will be the main challenge: ensuring accessible information so that no one misses the extension deadline or structuring the service so that the analysis of requests progresses without delays?
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