A análise da constitucionalidade do cálculo da renda mensal inicial do benefício por incapacidade permanente após a reforma previdenciária (EC nº 103/2019)

Abstract

This paper analyzes the constitutionality of art. 26, §2, III of Constitutional Amendment No. 103/2019, which deals with the calculation of the initial monthly income of the permanent disability benefit, through the presentation of justifications for and against the social security reform, as well as arguments that indicate the constitutionality or material unconstitutionality in the text of the referred provision. Furthermore, the discrepancy between the value of the social security benefit of the non-accidental permanent disability benefit in relation to the same benefit of an accidental nature is highlighted; the abrupt reduction of the initial monthly income in cases of conversion of the temporary disability benefit into a permanent one is emphasized; and, the current behavior of the Judiciary is presented in the face of countless controversies on the topic under discussion, emphasizing the possibility of filing lawsuits to review the initial monthly income of the benefit in question, based on the attempt to retroact the determination of the date of onset of incapacity to a time prior to the social security reform, in order to obtain the granting of the beneficiary's salary in accordance with the previous regime and more advantageous to the disabled insured. The methodology of the approach applied is deductive, seeking to examine the constitutional norm in question, from a qualitative perspective and, as an auxiliary, the historical and comparative methods were used. In addition, research techniques and instruments are used, such as indirect documentation, based on consultation of scientific articles, monographs and doctrines; and documentary documentation, based on research in specific legislation and decisions of legal proceedings from the most varied Brazilian instances and courts. After analyzing the arguments presented, it is found that there are numerous plausible justifications capable of demonstrating the presence of unconstitutionality in the norm set forth in art. 26, §2, III of Constitutional Amendment No. 103/2019.