CONCEPT OF OCCUPATION
Although the concept of occupational accidents has been defined by many different organizations, definitions have been made by world famous organizations in the field of occupational accidents. Some of these definitions are given below.
INTERNATIONAL LABOR ORGANIZATION (ILO) :It has been described as unplanned, unknown and uncontrolled events that may harm the environment.
WORLD HEALTH ORGANIZATION (WHO) :Described it as an unscheduled case, leading to personal injury, damage to machinery and equipment, and production stopping for a while.
The definition of the concept of occupational accident is valid for us in the 13th Social Security and General Health Insurance Law no 5510.Article 6 of the Occupational Health and Safety Law No. 6331.
– According to article 13 of the Social Security and General Health Insurance Law no. 5510;
- a) İt must occur while the insured is in the workplace.
- b) It must be caused by the work being carried out by the employer or because of the job or if the insured is working independently on his / her behalf and account, it must occur outside the workplace due to the work or work he / she carries out.
- c)The insured person who works under an employer must take place in the past times without performing his or her actual work due to being sent to another place outside the workplace as an official.
- d) The breastfeeding female insured should take place at the time allocated to give milk to her child.
- e) It must occur during the arrival of the insured person to the place where the work is carried out by a vehicle provided to the employer.
In order to mention the existence of an occupational accident, one or more of the above mentioned items must have occurred. Therefore, work accident; It is an case that occurs in one or more of the above-mentioned substances and immediately or subsequently disrupts the insured physically or spiritually.
According to Article 3 (g) of Occupational Health and Safety Law No. 6331;
It is defined as an case that occurs in the workplace or due to the conduct of the work, causing death or rendering body integrity mentally or physically disabled.
Conditions for Work Accident
In order for an incident to be considered as an occupational accident, certain conditions are required. According to this;
The person who has an occupational accident must be insured.
In order to mention the existence of an occupational accident, the person who has an occupational accident must be insured at the time of the accident. The obligation to be insured should not be construed as narrow. An employer is obliged to have insurance for the person he / she works under a service contract. Probably, the person who is employed is deemed to have the title of worker, whether or not the Social Security Institution is notified by starting work. Therefore, the violation of the employer’s obligation has no effect on the counting of work accidents.
- The person who has suffered an occupational accident must have experienced an case.
In order to mention the existence of an occupational accident, a concrete case must have occurred. It should also be an case that affects the person who has an occupational accident.
- Due to the incident, it has to suffer physical or mental harm.
Although a concrete case has occurred, the existence of an occupational accident cannot be mentioned if the person who has suffered an occupational accident has not suffered any harm. This harm should not only be perceived as a visible harm, but should be interpreted as a harm that affects the person’s life and affects the mental health by giving him pain, suffering and grief.
- There must be a causal link between the case and the result.
In order to talk about the existence of an occupational accident, a cause-effect relationship must be established between the incident and the damage. Because, as stated below, the concept of occupational accident cannot be mentioned in case of reasons that cause the cause-effect relationship to occur.
Obligation to have a causal link between the case and the result is the superior provision.Cases that interrupt the relationship of ilness;
à a. Accident is caused by the worker’s severe defect
- Force majeure effect on accident
- This is caused by the fault of third parties.
It is not compulsory that these situations that cut the link of relevance occur together. In the case that one or more of the above-mentioned substances occur, the causal link will be terminated. However, the existence of this situation is in need of proof. Because, if the above-mentioned work accident conditions occurred in the occurrence of the accident, the connection of causality is considered as presumption. Therefore, the employer will not be able to get rid of the responsibility unless it proves that there is no causal link between the case and the result.
–Therefore, the existence of the above-mentioned conditions is mandatory for an incident to be considered as an occupational accident, and it is not possible to mention the existence of an occupational accident if any one is missing. For this reason, the above-mentioned conditions are the prevailing provisions in order to mention the existence of an occupational accident and it is not possible to speak of the existence of an occupational accident if any condition is missing.
EMPLOYER’S OBLIGATION TO INFORM THE WORK ACCIDENT TO THE SOCIAL SECURITY INSTITUTION
5510 Social Insurance and General Health Insurance Law, according to the definition in article 13 work accident;
- a) While the insured is in the workplace,
- b) If the insured is working independently on behalf and account of the insured due to the work carried out by the employer,
- c) In the case that the insured who works under an employer is sent to another place outside the workplace as an official, he / she does not perform his / her actual work,
- d)In the times allocated for breastfeeding the female insured under the paragraph (a) of the first paragraph of Article 4 of this Law, to provide milk for her child in accordance with the labor legislation,
- e) During the return of the insured to the place where the work is carried out by a vehicle provided to the employer,
It is the case that occurs and immediately or subsequently disrupts the insured physically or spiritually. Therefore, the obligation to report an occupational accident will arise when one or more of the events described above occur. The obligation to report an occupational accident is not limited to reporting it to the Social Security Institution. In the case that one or more of the above-mentioned events occur, the nearest police should be notified immediately.
work accident; 5510 Social Security and General Health Insurance Law, Article 4,
and the insured under Article 5 shall be notified immediately by the employer employing them to the relevant law enforcement authorities and at the latest within three working days after the accident.
The employer shall be liable for notification if the employee working under a service contract with the employer undergoes one or more of the above-mentioned work accidents. The period of this obligation shall start from the next day, not taking into account the day of the work accident .
- (b)in respect of the insured within the scope of sub-clause must be notified within three working days after the day that the discomfort does not prevent the notification, provided that it does not exceed one month.
In this case, which is an optional branch of insurance, the insured is not bound by any service contract, so the obligation to report the work accident belongs to the person who has the work accident.
According to Article 90 of the Social Insurance Regulation;
In case of occupational accident occurring in foreign countries within three working day notification period, and for the incidents of occupational disease and invalidity of duty, the notification period specified in the Act occurred, in case the occupational accident occurred in places beyond the control of the employer, three working day notification period was learned. The notification period starts from the date when the excuse disappears, provided there is a documented excuse acceptable to the institution.
There are 3 types of lawsuits to be filed as a result of the Work Accident:
- Criminal Investigation and Criminal Case
- Material and moral compensation
- Recourse Cases to be filed by the Social Security Institution
Occupational Accident Statistics According to ILO Resources; every year around the world: 250 Million people Work Accidents 160 Million people are exposed to the damages caused by occupational disease. These statistics show that hundreds of people experience work accidents every day.
CLAIMS OF MATERIAL AND MENTAL COMPENSATION DUE TO A WORK ACCIDENT
Injuries caused by occupational accidents or occupational diseases ;
The person who has suffered an occupational accident may sue for financial and moral compensation due to the accident. The adversary of this case is the employer. In case the case occurs while the employer is doing a job, waiting under the orders and instructions of the employer, or in cases where the employer’s responsibility is considered in the law, he / she will file a lawsuit against the employer for pecuniary and non-pecuniary damages. The court in charge of pecuniary and non-pecuniary damages to be filed in case of an occupational accident is the Labor Courts. The competent court; 6100 is the court of residence of the defendant, the employer, in accordance with the general authority rule of the Code of Civil Procedure. As the subject of this case is an unjust act in terms of the existence of an accident, the authority rules regarding the unjust act can also be applied as an optional right. These; the court where the tort occurred, the court where the tort occurred, or the court of settlement of the person who suffered the tort. In such cases, any of these optional rights can be brought before the court in that place.
Relatives of the person who has suffered an occupational accident can only sue for non-pecuniary damages against the employer. In order for this case to be opened, the relatives of the relatives must have suffered a moral damage and have to prove this damage. In the case of non-pecuniary damages filed by the relatives of the person who has an occupational accident, the above-mentioned duties and authority rules apply.
In case of deaths caused by occupational accidents or occupational diseases,
Persons who are deprived of the support of the worker who died as a result of an occupational accident may be sued for deprivation of support due to the deprivation of support by the deceased person. The lack of support should not be considered as pure heirs. One of the two conditions must exist in order to receive compensation for deprivation of support. The first is the fact that the person who is requesting compensation for deprivation of support is de facto looking at the deceased person and finally the second condition is the possibility of looking at the future even if there is no actual look. The request for compensation for deprivation of support based on what seems likely in the future is referred to as hypothetical support in the Supreme Court decisions. As can be seen from these explanations, there are two types of support, which are real support and hypothetical support.
TIME LIFE IN CLAIMS TO BE OPENED AS A RESULT OF WORK ACCIDENT
In case of pecuniary and non-pecuniary damages due to work accidents, the statute of limitations shall be resolved in accordance with the general provisions. The statute of limitations in these cases is 2 years and probably 10 years from the day of the work accident.Upon the expiration of these periods, claims for damages due to work accidents will be time-barred.
In some of the decisions of the Court of Cassation, it is seen that the beginning of the statute of limitations due to occupational accidents is not the date of the case but the date when the disability rate is determined precisely. To explain this situation, the compensation lawsuit filed as a result of an occupational accident is subject to a 10-year time-out period, and as a rule the time-out start date is the accident date. If the occupational accident increases in the form of disability increase, there is a new disability situation and in this case it would be correct to accept the disability as the start of the statute of limitations.