Occupational Accidents and Occupational Diseases

Occupational accidents and occupational diseases have far-reaching consequences under social security law, private law, administrative law and criminal law. The core provisions are found in Social Insurance and General Health Insurance Law No. 5510, in Occupational Health and Safety Law No. 6331, with regard to civil liability in particular in Article 417 and the related provisions of Turkish Code of Obligations No. 6098, and with regard to criminal liability in Turkish Criminal Code No. 5237. It is important for employers to be well acquainted with the broad definition of an occupational accident, the recording and notification obligations and the differences between civil liability and recourse liability towards the SGK, since a serious incident can simultaneously give rise to administrative sanctions, compensation claims, recourse by the Institution and a criminal investigation.

Contents

• What is an occupational accident?
• What is an occupational disease?
• What are the employer's notification obligations?
• What benefits does social security provide?
• When does the SGK take recourse against the employer?
• What civil law claims do the employee and the employee's relatives have?
• How is fault determined and how does the employee's fault affect compensation?
• What criminal liability may arise?
• What rules apply with regard to limitation periods, the competent court and mediation?
• Why is prevention the best protection against liability?
• Conclusion

What is an occupational accident?

Under Article 13 of Law No. 5510, an occupational accident (iş kazası) is an event that causes the insured person physical or mental harm, immediately or subsequently, and occurs in one of the situations listed in the Law. For insured persons under Article 4/a working under an employment contract, these situations are as follows:

• while the insured person is at the workplace – even in the case of events not directly connected with work duties, such as breaks on the workplace premises
• during the performance of work assigned by the employer, even if outside the workplace
• during periods in which the insured person, having been sent elsewhere by the employer, is not performing his or her principal work
• in the case of a breastfeeding insured woman, during the time allocated for nursing leave
• while travelling to and from work in a vehicle provided by the employer

For an event to qualify as an occupational accident under Law No. 5510, no fault on the part of the employer or the insured person is required; the event must occur in one of the situations listed in the Law and there must be a causal link between the event and the physical or mental harm. However, the fact that an event is deemed an occupational accident under social security law does not mean that the employer's civil or criminal liability automatically arises. In remote work, too, it is not sufficient that the accident merely occurred at home; whether the event occurred during the performance of the work or because of the work is assessed according to the time, place, activity and evidence in the specific case.

What is an occupational disease?

Under Article 14 of Law No. 5510, an occupational disease (meslek hastalığı) is a temporary or permanent illness or physical or mental disability suffered by the insured person owing to the nature of the work performed or the conditions under which the work is carried out. Unlike an occupational accident, it generally arises not from a sudden event but from the effect of a recurring cause or of the conditions under which the work is carried out. Examples include dust, chemicals, noise or repeated physical strain. An occupational disease is established by the SGK Health Board on the basis of a health board report duly issued by health service providers authorised by the Institution and an examination of the underlying medical documents. The relevant minimum exposure period and the maximum liability period within which the disease may appear after leaving the job are taken into account. Nevertheless, if clinical and laboratory findings and the occupational factor are established in a workplace inspection, an occupational disease may be recognised with the approval of the Social Insurance High Health Board even if the liability period has been exceeded. Disputes as to whether a disease not included in the list is to be regarded as an occupational disease are also decided by the same Board.

What are the employer's notification obligations?

The employer must notify an occupational accident of an insured person under Article 4/a immediately to the competent law enforcement authorities at the place of the accident and to the SGK within three working days following the accident. If the accident occurred at a place outside the employer's control and there was an obstacle preventing the employer from obtaining information about the event, the three-working-day period begins on the date on which the employer learns of the accident. An occupational disease must be notified to the SGK within three working days from the day on which the employer learns of it. In addition, under Law No. 6331, occupational accidents and occupational diseases must be recorded, the necessary investigation reports must be prepared, and near-miss incidents that did not injure an employee but had the potential to damage the workplace or work equipment must be investigated and recorded. Breaches of these obligations result in administrative fines. The financial consequences of late notification vary depending on the type of event: in the case of an occupational accident, the temporary incapacity benefit payable to the insured person up to the date of notification is recovered from the employer; in the case of an occupational disease, the expenses incurred by the Institution in this connection and, if paid, the temporary incapacity benefits are recovered from the employer. Careful and prompt documentation of the incident, including photographs, witness statements and the condition of the protective equipment, is the basis of the defence in subsequent recourse, compensation and criminal proceedings.

What benefits does social security provide?

The health services required as a result of an occupational accident or occupational disease are covered by general health insurance; the short-term insurance branch also provides cash benefits irrespective of fault. The main benefits are as follows:

• Necessary health services and rehabilitation
• Temporary incapacity benefit for the duration of the incapacity for work
• Permanent incapacity pension if the occupational earning capacity has been permanently reduced by at least ten per cent
• In the event of death, a pension for the survivors; where the conditions are met, marriage and funeral grants

For insured persons under Article 4/a, no minimum insurance period or number of premium days is required for these entitlements. However, additional conditions relating to premium debts may apply to insured persons under Article 4/b and certain special insurance categories. Even if the employee was employed without being registered with the Institution, insurance coverage arises by operation of law and the Institution provides the necessary benefits; however, if the insured person's employment start notification was not submitted in time and the event occurred before the notification or before detection by the Institution, serious additional financial consequences arise for the employer under Article 23 of Law No. 5510.

When does the SGK take recourse against the employer?

If the occupational accident or occupational disease was caused intentionally by the employer or results from an act of the employer contrary to the legislation on the protection of insured persons' health and occupational safety, the SGK may, under Article 21 of Law No. 5510, take recourse against the employer for the payments made or to be made in the future and for the initial capitalised value of the pension granted as at its start date. Recourse is limited by the ceiling of the actual damage that the insured person or the survivors could claim from the employer; the employer's degree of fault, the causal link and unavoidability are also assessed separately. Late notification and the failure to register the insured person at all or in time are, however, not subject to the same legal regime. In the case of late notification of an occupational accident, as a rule the temporary incapacity benefit paid up to the notification, and in the case of late notification of an occupational disease, the expenses incurred by the Institution in this connection and, if paid, the temporary incapacity benefits, may be claimed from the employer; where the insured person was not registered in time, more extensive amounts may be claimed from the employer under Article 23.

What civil law claims do the employee and the employee's relatives have?

Where there is fault on the part of the employer and an adequate causal link, the employee may, independently of SGK benefits, claim compensation for pecuniary and non-pecuniary damage arising from bodily injury under Articles 417, 54 and 56 of the Turkish Code of Obligations. Pecuniary damage may include loss of earnings, losses resulting from the reduction or loss of working capacity, and damage relating to treatment and care not covered by the SGK and to the impairment of economic prospects. In calculating compensation, only those social security payments that may lawfully be set off are taken into account, in particular the initial capitalised value that is subject to recourse; under Article 55 of the Turkish Code of Obligations, social security payments that are not subject to recourse may not be deducted from the damage. In the event of death, funeral costs and loss of support may be claimed; the relatives of the deceased may also claim non-pecuniary damages. In the prevailing approach of the Court of Cassation, the employer's civil liability is based on fault. For this reason, the mere fact that an event is deemed an occupational accident under Law No. 5510 is not sufficient for liability to pay compensation; the specific measure breached, the fault and the causal link between the damage and the breach must be established separately. The employer is held liable to the extent that it is at fault for failing to take or implement the necessary measures under the legislation and the technical safety rules applicable in the specific case; to determine fault, the courts usually obtain reports from panels of experts specialised in occupational health and safety.

How is fault determined and how does the employee's fault affect compensation?

In court proceedings, fault is apportioned between the employer, the employee and any third parties on the basis of the specific duty, the breach and the causal link. Contributory fault (müterafik kusur) of the employee that contributed to the occurrence or aggravation of the damage, for example failure to use protective equipment that was duly provided and whose use was supervised, may reduce compensation under Article 52 of the Turkish Code of Obligations. Conversely, the employer cannot escape liability merely by asserting that it handed over personal protective equipment; it is also obliged to select suitable equipment, provide training, monitor its use and ensure compliance with the rules. The expert report must explain the specific legislation and technical measure that was breached, the link between that breach and the outcome and, where applicable, unavoidability; the occurrence of the accident does not in itself prove fault on the part of the employer. In a valid principal employer–subcontractor relationship, the principal employer and the subcontractor may be held jointly and severally liable towards the employee; recourse in the internal relationship is determined according to their respective shares of fault.

What criminal liability may arise?

Where an occupational accident results in injury or death, the offence of negligent bodily injury under Article 89 or of negligent homicide under Article 85 of the Turkish Criminal Code may arise, depending on the circumstances of the case. Criminal liability lies not with the legal entity but with natural persons whose duty and personal fault have been specifically established. Depending on the organisation of the business, these persons may be company directors, employer's representatives, occupational safety specialists, site managers or foremen; however, a title or job description alone is not sufficient for criminal liability. The delegation of duties to competent persons with clear authority, adequate resources and effective supervision may affect the assessment of liability; a merely formal assignment does not remove the personal fault of management in relation to selection, organisation, the provision of resources and supervision. If the perpetrator foresaw the outcome but acted in the belief that it would not occur, conscious negligence may be present and the penalty is increased by one third to one half.

What rules apply with regard to limitation periods, the competent court and mediation?

Claims for pecuniary and non-pecuniary damages based on a breach of the employer's duty of care towards the employee are, as a rule, subject to the ten-year limitation period under Article 146 of the Turkish Code of Obligations. However, the period does not in every case start directly on the date of the accident. Where bodily harm develops over time, the Court of Cassation may take as the starting point the date on which the extent of the damage became determinable or its development was completed. Where the act also constitutes a criminal offence, the application of the longer limitation period for criminal prosecution may also come into consideration. For this reason, particularly in cases where the degree of disability changes subsequently, the limitation period should be assessed on the basis of the specific file. As a rule, the labour courts have jurisdiction over these actions arising from the employment relationship between employer and employee. Under Article 3 of Labour Courts Law No. 7036, mandatory mediation is not a precondition for actions for pecuniary and non-pecuniary damages arising from an occupational accident or occupational disease, or for related declaratory, objection and recourse actions. However, if the SGK has not accepted the event as an occupational accident or occupational disease, or has not accepted the degree of permanent incapacity, applications to the Institution, objections to the health board and the necessary declaratory actions may become relevant before the compensation proceedings or as a preliminary question in those proceedings.

Why is prevention the best protection against liability?

The most effective risk measure is an effective OHS organisation: up-to-date risk assessments, documented training and information, supervised use of protective equipment, periodic technical inspections of work equipment, clear responsibilities and a functioning system for evaluating accidents and near misses. In addition, employer's liability insurance can partly mitigate the financial consequences of civil liability and, where additional cover exists, of SGK recourse, within the limits of the policy's scope, limits and exclusions. However, insurance does not replace prevention obligations, does not automatically cover administrative fines and does not remove personal criminal liability.

Conclusion

Occupational accidents and occupational diseases can bring together, in a single incident, social security benefits irrespective of fault, recourse claims by the SGK, the employer's fault-based liability for pecuniary and non-pecuniary damages, administrative sanctions and the criminal liability of natural persons. The broad definition of an occupational accident and the strict requirements regarding OHS organisation mean that, in a crisis, the employer faces several interconnected proceedings.

The principal means of limiting recourse, compensation and criminal risks are timely notification, careful documentation, an organisation in which OHS duties and powers are clearly defined among competent persons and supported by adequate resources, and above all consistent prevention. In the event of damage, the defence in recourse, compensation, administrative sanction and criminal proceedings should be coordinated from the outset.

GEMS Schindhelm provides advice and representation to companies in connection with notifications of occupational accidents and occupational diseases and compliance with OHS obligations, the defence against SGK recourse and civil compensation claims, and the coordination of related administrative, civil and criminal proceedings. This article is for general information purposes only and does not constitute a legal opinion or legal advice; each dispute must be assessed separately in light of the specific circumstances of the case and the legislation in force.