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Judgment Removes Decay and Requires INSS to Recalculate Benefit Based on Labor Action Closed in 2011, Ensuring Retroactive Differences Since Granting.
A recent court decision brought new hope for retirees who believed they no longer had a chance to review their benefits. The judge in charge of the case ruled that the INSS review a retirement granted in 2006, incorporating amounts recognized in a labor action that was only finalized in 2011.
The central point is the 10-year decay period provided for in the social security law. In general, the INSS understands that this period begins to count from the granting of the benefit. However, the magistrate, supported by Theme 1117 of the Superior Court of Justice (STJ), recognized that when there is a subsequent labor decision that alters the contribution salaries, the period only begins to count from this definitive decision — and not from the initial retirement date.
Timeline of the Process
The insured retired on January 19, 2006, for contribution time.
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Years later, he filed a labor action against former employers, requesting the recognition of salary amounts not included at the time.
This action was partially upheld in 2008 and finalized on August 3, 2011, when the amounts owed to Social Security were calculated and collected.
Only on July 26, 2021, did the insured file the revisional action requesting that these labor amounts be incorporated into the calculation of the Initial Monthly Income (RMI).
The INSS alleged decay, but the judge dismissed the argument based on the recent understanding of the STJ, ensuring that the request was within the legal deadline.
Practical Effects of the Decision
The court ordered the INSS to:
Recalculate the retirement, including the amounts recognized by the Labor Court;
Pay all retroactive differences since the date of granting, in 2006;
Cover court costs and attorney’s fees, set at 10% of the amount of the condemnation.
Another crucial point was the application of Summary 102 of the National Uniformization Commission (TNU), which establishes that the financial effects of the revision retroactively date to the date of the initial request for the benefit.
In practice, this means that the retiree will receive not only the monthly increase but also a substantial amount of back pay corrected for inflation and including interest.
What Is at Stake for Other Insured Individuals
This case paves the way for thousands of retirees in similar situations.
Many workers have won labor actions that recognized salary differences not considered by the INSS in the calculation of their retirement.
The court decision reaffirms that the 10-year period to request a review only begins to count from the finalization of these labor actions.
That is, even those who have been retired for more than 10 years may have the right to a review, provided that the revisional action is filed within the period counted from the final labor decision.
This interpretation protects the insured, as it is only after the labor dispute has ended that it is possible to accurately calculate the contribution salaries that should make up the benefit.
Consequences for the INSS and the Social Security System
The decision represents a warning for the INSS, which may face an increase in the volume of revisional actions.
For the agency, this means significant financial impact, as retroactive revisions can involve substantial amounts.
On the other hand, for the insured, the measure reinforces the idea of social justice, correcting historical distortions in the calculation of benefits.
Moreover, the decision underscores the importance of joint action between social security and labor law.
Many retirees refrain from seeking a review because they believe the deadline has already expired, when, in fact, they still have the right to recover amounts and increase their monthly income.
The case shows that recent decisions from the STJ are opening new possibilities for reviewing old retirements, provided there are subsequent labor actions that recognize salary differences.
For the insured involved, the result was the guarantee of a greater benefit and the payment of all back pay since 2006.
And you, do you think it’s fair that the INSS review deadline only starts counting after the labor decision? Leave your opinion in the comments — we want to hear from those who have been through a similar situation or know someone in that condition.
Gostaria de saber sobre o artigo 29. Que na realidade também foi calculado errado desde 2002. E o governo não fala mais nada sobre essa correção.
Me chamo Adriana Botelho de Souza, o trabalho que me levou a me aposentar por uma queda em acabou c/ minha carreira foi em 1993 ,em 2017 o INSS, me puxou o tapete,me passou o pente fino, com depressão, contropatia patelar no grau iv ,tendente da pata de ganso, artrose, Hérnia de disco, e etc, tive um advogado que não lutou por mim, passei necessidades pois ganhava 200e poucos reais, agora eu recebo salário mínimo, eu sempre fui humana ,tratava todos por igual, amorosa, só perguntar ,quem era Adriana Botelho na Sta de misericórdia de Rio Novo, me passou o pente fino ,passo por dificuldades, pois viver c/ salário mínimo não é fácil, perícia tinha que ter câmeras nas salas, eu sou prova viva, já passei por muitas humilhações, peritos desumanos, arrogantes, se deixar ,da na xará da gente, eu já denunciei uns ,pois luto pelos meus direitos e tenho muita fé em Deus, que vou ter tudo que me tomaram injustamente, estou muito feliz por me desabafar, já estou lutando contra a injustiça que me fizeram, rezo todos os dias ,para que o perito ou perita ,que estiver com o meu caso ,me dê causa ganha, pois sempre amei o fazia,corri risco de vida, lutamos pra ter um adicional noturno, insalubridade.