A OCORRÊNCIA DA PRESCRIÇÃO NOS ACIDENTES E DOENÇAS OCUPACIONAIS/DE TRABALHO

Abstract

This paper addressed the issue of prescription in compensation actions arising from a work accident or occupational disease. From a narrative literature review, it was possible to identify the main doctrinal and jurisprudential understandings on the topic. Prescription is the loss of claim, that is, the right to demand something in court, due to the passage of time. In the case of compensation actions arising from an accident at work or occupational illness, the applicable statute of limitations varies depending on the date of the accident and the date on which the action was filed. Until the promulgation of Constitutional Amendment nº 45/2004, the jurisdiction to judge these actions belonged to the Common Court. During this period, the applicable statute of limitations was three years, provided for in art. 206, § 3, V, of the Civil Code. After the promulgation of the aforementioned Constitutional Amendment, the jurisdiction to judge these actions passed to the Labor Court. During this period, the applicable statute of limitations is two years, provided for in art. 7th, XXIX, of the Federal Constitution. However, there are situations in which the automatic application of the statute of limitations provided for in the Federal Constitution may lead to an unfair conclusion. In these cases, a transitional rule may be applied, which provides for a statute of limitations of three years from the date of the accident. The initial term of the statute of limitations is also the subject of doctrinal and jurisprudential divergence. The predominant jurisprudence of the Federal Supreme Court considers that the statute of limitations for filing an action for compensation for an accident at work begins to run on the date on which disability retirement is granted. However, there are also court decisions that set the initial end of the statute of limitations on other dates, such as, for example, on the date of the decision to grant retirement due to disability or on the date of the final and unappealable decision in a previous action, in which recognized the existence of an occupational disease and the right to a provisional guarantee of employment. In conclusion, the statute of limitations applicable to compensation actions arising from an accident at work or occupational illness is complex and depends on several factors. It is important that workers and their lawyers are aware of these rules to prevent their rights from being harmed by the statute of limitations.