Data de início da incapacidade administrativa e judicial: qual deve prevalecer na concessão do benefício por incapacidade temporária?

Abstract

In the year 2022, 1.902.095 temporary incapacity benefit cases were protocoled in the Federal Justice. After the action is protocoled, the insured are submitted to a judicial expertise to analyze whether they are incapable and establish the beginning of the incapacity on the date the examination was carried out or even certify that the worker is not incapable. Even if the incapacity and its start date have already been established in the administrative process. Therefore, the objective of this monograph is to understand which incapacity start date should prevail when granting benefits for temporary incapacity, when there is a discrepancy between the administrative and judicial incapacity start date. For this, the method used was bibliographic and documentary research. Primary and secondary sources were analyzed, thus articles, doctrines, laws and the jurisprudential position on the topic were examined. Furthermore, this monograph is qualitative in nature and seeks to produce in-depth information on the subject. Regarding the objectives, this is exploratory research and aims to produce in-depth information about the problem. Finally, it was concluded that in the concession of benefits due to temporary incapacity, when there is a discrepancy between the start date of the administrative incapacity and the judicial incapacity, the date most favorable to the insured must prevail, in accordance with the principle of in dubio pro misero. Besides that, in the absence of probative elements that contest the start date of incapacity fixed by the Pension Autarchy, this must be considered when granting the benefit, given its presumption of legitimacy.