Background
Luciana Altafini Batista, a municipal psychologist, sought a medium-rate occupational-hazard allowance from the beginning of her service. She initially worked at a specialized center for people experiencing homelessness and was transferred to Itapira Municipal Hospital in August 2021. A court-appointed expert found that she had routinely encountered people with infectious diseases, including tuberculosis, hepatitis, and COVID-19, and that personal protective equipment did not eliminate the biological risks.
The trial court awarded the allowance from the beginning of Batista’s work, and the appellate court affirmed. The Municipality of Itapira argued before the Superior Court of Justice that PUIL 413/RS prohibited payment for periods preceding the expert report. After the reporting justice granted reconsideration on clarification motions but ultimately denied the municipality’s special appeal, the municipality filed an internal appeal.
The Court’s Holding
The Second Panel unanimously denied the internal appeal. It held that an occupational-hazard allowance is payable while a public employee remains exposed to harmful agents and that a court may distinguish PUIL 413/RS when concrete, conclusive technical evidence establishes the working conditions during the earlier period claimed.
PUIL 413/RS bars retroactive payment based merely on a presumption that hazardous conditions existed before an expert report. Here, however, the expert evidence established habitual biological exposure throughout Batista’s relevant employment and found that protective equipment did not eliminate the risks. The lower court therefore permissibly awarded the medium-rate allowance from the start of the proven exposure rather than from the report’s date. The Superior Court also concluded that changing the commencement date would require reconsidering the evidentiary record, which is barred in a special appeal by STJ Súmula 7.
Key Takeaways
- An expert report may support payment for an earlier period when it concretely and conclusively establishes that hazardous exposure existed during that period.
- PUIL 413/RS prevents retroactive awards founded on presumed past conditions, not awards supported by specific technical proof of those conditions.
- The commencement date of an occupational-hazard allowance may present a fact-bound question that the Superior Court of Justice cannot revisit on special appeal under STJ Súmula 7.
Why It Matters
The decision clarifies that the date of an expert report does not invariably control the financial commencement of a Brazilian public employee’s occupational-hazard allowance. The decisive issue is whether reliable technical evidence proves actual exposure during the earlier period.
Municipal employers and public employees should therefore focus on the scope and specificity of the expert evidence. A report that reconstructs prior working conditions with concrete findings can justify an allowance from the beginning of proven exposure without treating hazardous conditions as merely presumed.