The National Institute of Social Security (INSS) announced that people with disabilities, serious illnesses or temporary or will possibly have to pay the fees for the medical examinations, if there is no proof in court regarding the inability.
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According to the proposal, the losing party in the lawsuit will have to pay for the medical expertise carried out by the INSS, which fights for the permission of assistance benefits. The rule will not apply to those who have judicial gratuity.
According to Marco Aurelio Serau Junior, who is a lawyer, professor at UFPR (Federal University of Paraná) and Ieprev (Institute of Social Security Studies), this project creates an economic impediment for policyholders. “It is something that must be rethought in Congress. There are already several barriers and obstacles for INSS insured persons in court. And this bill makes access to the Judiciary more expensive, especially for policyholders, who in most of these cases are underprivileged and incapable”, he criticizes.
In addition, certain requirements are required regarding claims for disability benefits, such as, for example, detailing the disease, a specific contradiction in the expert report. “It causes a limiting perspective of access to Justice”, says Serau.
As for lawyer Ruslan Stuchi, a partner at Stuchi Advogados, the proposed plan goes against the Constitution. “The Federal Constitution guarantees access to Justice, regardless of whether or not the person has the money to pay the cost of the process. Even if approved, this project should create a discussion about its validity in the Judiciary itself”, he evaluates.
Stuchi adds that an individual who goes to court to gain access to the INSS benefit is already in a difficult situation. “In those cases where the insured person is weakened or with some difficulty that makes him unable to carry out his activities, he resorts to the Judiciary, variably, in extreme situations, when he is no longer receiving a salary or benefit social security. And in many cases, the benefit was suspended due to INSS administrative errors. That is, in a vulnerable financial and health situation ”, he warns.
For lawyer João Badari, a partner at the Aith, Badari e Luchin Advogados law firm, the measure may be unfairly applied to some policyholders. “We often see cases where the insured person is unable to carry out his activity, but the expert does not attest to his incapacity. In other cases, the insured does not have the financial condition to take reports and examinations to the expert. And that can further limit access to justice,” he says.
Celso Joaquim Jorgetti, partner at Advocacia Jorgetti, states that “the bill approved by the Chamber of Deputies is a true legal aberration and uses article 98 of the Code of Civil Procedure as a basis, an Ordinary Law hierarchically inferior to the Constitution Federal. And making the citizen have his right to access Justice directly hurts the principle provided for in item XXXV of Article 5 of the Federal Constitution of 1988, which is a right fundamental. This right guarantees all Brazilians the possibility of access to the Judiciary and Justice”, analyzes the lawyer.
“Every person has the right to a hearing, with guarantees and within a reasonable time, by a judge or competent, independent and impartial tribunal, previously established by law”. convention. “As the bill, which originated in the Federal Senate, was approved with several amendments, it must return to that House and, in my opinion, it will hardly be maintained as approved by the Chamber of Deputies” he stresses Jorgetti.
