According to the 13th article of the Social Insurance and General Health Insurance Law No. 5510, work accident;
- While the insured is at the workplace,
- If the insured works independently on his own behalf and account due to the work carried out by the employer,
- When the insured working for an employer is sent to another place (outside of the workplace) as an employee, without performing his/her main job,
- In the times allocated to breastfeed her child, pursuant to the labor legislation, of the lactating female insurance holder within the scope of item (a) of the first paragraph of Article 4 of this Law,
- It is an event that occurs during the insured’s travel, to/from the place where the work is done with a vehicle provided by the employer, and that immediately or later inflicts physical or mental disability on the insured.
Within 10 years from the date of the occupational accident, a claim for compensation due to the work accident must be filed before the statute of limitations expires. However, it should be emphasized that if there is a criminal case filed due to an occupational accident and the statute of limitations for the criminal case is longer, the statute of limitations for the criminal case applies to the compensation case to be filed due to the work accident! In the event of an injury due to a work accident, the statute of limitations will start to run from the date of the last report in which the disability is definitively determined.
According to Article 6 of the Law on Labor Courts No. 7036, the place of residence of the defendant on the date of the lawsuit, the place where the work accident or damage occurred, the place of residence of the plaintiff, the labor court is the competent and authorized court.
When an occupational accident occurs, the employer must first notify the Social Security Institution. In the event that a lawsuit is filed without notifying SGK (Social Security Institution, SSI for short), the labor court should give the plaintiff time to notify the SGK (Social Security Institution, SSI for short) about the work accident claim. Upon this notification, an investigation report is prepared by the SGK (Social Security Institution, SSI for short) inspectors, which regulates whether the incident occurred is a work accident, the way the incident occurred, and the fault status of the parties.
If the incident is described as a work accident in the examination report, the beneficiary may file a lawsuit for pecuniary and non-pecuniary damage directly at the labor court. However, if the incident is not accepted as a work accident in the relevant report, a “detection case for work accident” should be filed in which both the SSI and the employer will be shown as the defendants before the compensation case.
It has been clearly stated in the decision of the 21st Law Department of the Court of Cassation, M. 2014/20986, Dcs. 2015/5902, dated 23.03.2015, that a work accident detection case should be filed before the compensation case. Accordingly;
“…In order to determine the disability rate of the insured by the Institution and to assign income from the occupational accident insurance branch, it is a preliminary problem to determine whether the damaging event is in the nature of a work accident or not. The dispute regarding the determination of the work accident is directly related to the right of SSI, and the institution is not a party in the compensation case. It would not be right for the Court to reach a conclusion without rectifying the deficiencies in this explanation…”
Although the case for the determination of the work accident is considered completely independent from the compensation case, the finalization of the determination case for the work accident compensation case should be waited for. The period of filing a lawsuit for the detection of work accident is subject to a 10-year statute of limitations from the date of the work accident. In the event that a work accident is determined in favor of the worker as a result of this lawsuit, a regular income is provided by the SGK(SSI) to the worker in case of disability and, in case of death, to the rightful relatives of the deceased. And a certain part of which is deducted from the amount of compensation claimed in the compensation case.
The worker who suffered serious bodily harm as a result of a work accident or the family of the worker in a fatal work accident may file a lawsuit for non-pecuniary damage to compensate for the pain and suffering they have faced. In this case, the Judge appreciates the amount of compensation and this compensation is paid by the employer.
In the material compensation lawsuit filed due to work accident, treatment expenses in case of bodily harm, loss of earnings, losses arising from the distortion of the economic future and losses arising from the decrease or loss of working power will be compensated. In case of death, funeral expenses will also be reimbursed.
If the rate of loss due to earning power in the profession is more than 10% in a work accident, SGK(SSI) pays permanent incapacity income. However, if the damage is less than 10%, the worker can claim the damage not covered by the SSI from the employer by filing a claim for incapacity compensation.
While calculating the work accident compensation, the net wage of the worker should be taken into account. In the decision of the 21st Civil Chamber of the Court of Cassation, dated 05.05.2015 M. 2014/23880, Dcs. 2015/9932; In calculating the amount of financial compensation, it is stated that the plaintiff should ask the relevant professional chambers and, if necessary, the precedent daily net wages that he can receive on the date of the incident, by specifying his work, age and seniority, and the wage should be determined according to the results obtained from this. If death has occurred as a result of a work accident, interest in pecuniary and non-pecuniary damages is paid from the date of death. In case of disability, the interest is determined from the date of disability. The degree of disability, defect rate, inevitability, equity, marital status of the spouse, benefits provided by the SSI are considered as the reason for the reduction in the amount of compensation to be determined. The judge has a wide discretion in the reasons for the reduction to be applied in the calculation of the amount of pecuniary compensation to be paid.
In case of injury or death of the worker following the occurrence of a work accident, the relevant law enforcement unit and the Public Prosecutor will be able to file a criminal case against the relevant persons by making the necessary investigation. The effects of the criminal case to be filed on the compensation case has been explained in the decision of the 4th Civil Chamber of the Supreme Court of Appeals, Main 2016/12324, Dcs. 2017/154, Dated 13.01.2017. Accordingly;
“…The civil judge is not bound by the provisions of the criminal law on liability in order to decide whether there is a fault, nor he is bound by the decision of the criminal court in determining the discretion of the fault and the amount of damage. However, the acceptance of the material event in the conviction decision of the Criminal Court, which determines the illegality of the act and the causal link, binds the judge as well. In that case, as can be understood from the material facts determined in the criminal court and it is fixed that the defendant is also faulty. It is against the procedure and the law to make a judgment without considering the material and legal facts determined by the criminal court…”
In case of death as a result of a work accident, people who need the help of the deceased worker can file a lawsuit for compensation for deprivation of support. The main idea in compensation for deprivation of support is that if the deceased continues to live, he would have continue to provide support to those concerned. In order for this compensation to be awarded, the deceased worker must also have the power to take care of those who claim that they will be deprived of support in their health.
Work accident cases can take a long time due to their nature. It is useful to get help from an expert, both for procedural economy and for the plaintiff worker to overcome this difficult process more easily. You can always contact us regarding the issue.
