Turkey: Moral And Material Compensations Arising From Occupational Accidents And Professional Diseases

WHAT IS AN OCCUPATIONAL ACCIDENT?

According to the definition generally accepted by the doctrine and the Court of Cassation, an occupational accident is an accident that the employee has suffered as a result of an incident that occurred suddenly from the work the employee performed for the employer or an external reason due to work engaged in while the employee was under the control of the employer. In this context, it will be seen as critical that the work accident occurs due to a sudden event in the distinction between work accidents and occupational diseases. For this reason, if the incident increases the mental and physical disorder of the employee over time, it will be necessary to talk about an occupational disease, rather than a work accident.

WHAT IS A PROFESSIONAL DISEASE?

An occupational disease is defined as a temporary or permanent illness that may be a physical or mental disability, which the insured suffers due to a recurring reason of the nature of the work the insured engages in or performs, or due to the operating conditions of the work. The most important difference that distinguishes occupational diseases from other diseases is that it occurs due to production work.

SOURCE OF EMPLOYER'S LEGAL RESPONSIBILITY

Our legislation imposes some obligations on the employer regarding occupational health and safety. The legal relationship established between the employer and the employee based on the employment contract imposes corresponding responsibilities and obligations. While the employee fulfils his duty of loyalty to the employer, the employer must ensure the occupational health and safety of his/her employees in addition to protecting and safekeeping the employee.

NOTIFYING AN OCCUPATIONAL ACCIDENT TO SSI AND THE RESPONSIBILITY OF AN EMPLOYER IN THIS REGARD

Work accidents must be reported by the employer to the authorized law enforcement officers and to the Social Security Institution ("SSI or Institution") within 3 (three) working days. If the accident is not reported to Institution, the employee who has an accident will not be able to receive the aid and allowances provided by SSI. However, if the incident is determined to be a work accident and the situation is reported to SSI, even if the employer has not reported the accident, the employee will receive the incapacity allowance provided by Institution.

In the event that a work accident is not reported, the employer will also incur losses, because the first sanction by the employer for not reporting the accident to Institution is an administrative fine, and another result is the collection of the temporary incapacity allowance paid by the SGK to the insured employee working under 4/a by Institution from the employer.

In addition, if a work accident has occurred with the intention of the employer or due to an action against the requirements of occupational health and safety without the intention of the employer, in this case, the payments made to the employee by the SSI are revoked to the employer.

Pursuant to article 4 of the Labor Courts Law numbered 7036, it is stated that it is obligatory to apply to the SSI before filing a lawsuit in disputes arising from the Social Insurance and General Health Insurance Law numbered 5510 and other social security legislation.

In addition, according to the verdict of the Supreme Court Assembly of Civil Chambers dated 14.03.2019 and numbered 2015/21-3101 E. – 2019/299 K. that illustrates; "Material compensation lawsuits to be filed against the employer due to a work accident are based on the principle of eliminating the damage that is not covered by the aids and incomes provided by the SSI.", we are of the opinion that applying to SSI before filing a lawsuit and filing a lawsuit according to the result of the application will be in favour in any case.

TYPE OF COMPENSATION THAT MAY BE REQUESTED

As per the provisions of article 417/3 of the Turkish Code of Obligations numbered 6098 ("TCO"), the compensation for the damages suffered by the employee and his/her relatives in case of death in the event of a work accident resulting in the employee's death or violation of bodily integrity, which accrued by the employer's breach of its obligations stipulated in the legislation, shall be claimed from the employer by reason of based on the provisions of non-conformity to the contract. In addition, according to the requirements of articles 53 and 54 of the TCO, in case of death or injury, tort clauses can also be relied upon. Accordingly, in case of bodily harm, treatment expenses, loss of earnings, loss due to the decrease or loss of working power, loss due to the breakdown of the economic future may be claimed by the employee, and in case of death, additional funeral expenses and the losses suffered by those who are deprived of the support of the deceased may be requested to be compensated for this reason.

Although the employee does not have a permanent disability due to the accident, the financial losses experienced during the periods when he cannot work temporarily due to being away from work for a certain period are covered by the SSI from the temporary incapacity allowance. For the cover, the accident that occurred in the relevant workplace must be labelled as a work accident by Institution and the employee must be temporarily unable to work during the rest period specified in the reports of the physician or health board authorized by Institution.

Permanent incapacity for work, on the other hand, is a permanent decrease in the workforce of the employee as a result of a work accident. In this case, in order for the employee to benefit from the permanent incapacity allowance, it should be determined by Institution Health Board based on the reports received from the health boards authorized by the SSI that the earning power of the employee in the profession has decreased by at least 10%.

Another type of compensation that will arise when death occurs as a result of the accident is compensation for deprivation of support. Since the deceased's dependents will be deprived of the support of the deceased as a result of the death due to a work accident, this compensation is demanded by the relatives of the deceased. The idea in compensation for deprivation of support is that if the deceased had continued to live, his support for his dependents would be continued.

In addition to material compensation items, it is usual for the employee or his relatives to suffer moral damage as a result of a work accident, and the compensation for non-pecuniary damage is not covered by the SSI. For this reason, employees and their relatives who have had a work accident can claim non-pecuniary damages from the employer, and this demand can be brought forward together with the demand for material compensation against the employer. In order for the employee who had an accident to be able to claim non-pecuniary damage, it is not obligatory to be disabled due to the accident. In the court's discretion of the non-pecuniary damage, multiple factors such as the treatment process of the injured person, the severity and permanence of the damage, and the effects of the damage are taken into account to adjudge non-pecuniary damages in the employee's favour.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.