What Is Work Accident Compensation?
A work accident is an event that occurs at the employer's workplace, or during the performance of the work, and causes physical or mental harm to the employee. In such accidents, two principal types of compensation arise to make good the harm suffered by the employee: where the accident gives rise to a permanent impairment (disability), disability compensation; and where the accident results in death, compensation for loss of financial support for the relatives who were dependent on the deceased. Both types of compensation are based on the employer's fault-based liability arising from a failure to properly fulfil occupational health and safety obligations.
Work accident compensation is a legal claim separate from the income awarded, or the payments made, by the Social Security Institution (SGK). Where the SGK payments do not cover the whole of the employee's loss, the difference may be claimed from the employer as pecuniary damages. In addition, non-pecuniary (moral) damages may be claimed separately for the pain, suffering and reduction in quality of life experienced by the employee.
Legal Basis and the Employer's Liability
At the heart of the employer's liability lies the duty of care towards the employee arising from the employment contract. Article 417 of the Turkish Code of Obligations No. 6098 requires the employer to protect the life, health and bodily integrity of the employee and to take all necessary measures for occupational health and safety. The Occupational Health and Safety Law No. 6331 regulates in detail the concrete measures the employer must take. Where the employer acts contrary to these obligations and there is a causal link between the accident and the harm, liability for compensation arises.
Liability is not limited to the employer's direct fault. Situations such as failing to provide adequate training, failing to supply protective equipment, leaving machinery and installations unmaintained, and a lack of supervision also attribute fault to the employer. Conversely, where the employee's own carelessness or conduct contrary to instructions is present, this is assessed as contributory fault and may lead to a reduction in the amount of compensation.
How Is the Compensation Calculated?
Work accident compensation is a calculation built on an economic comparison of life before and after the accident. The principal factors taken into account in the calculation are:
- Disability rate: The employee's degree of permanent incapacity for work is determined as a percentage by reports of the competent medical boards. This rate forms the core of the loss of earnings.
- Income / earnings: The employee's net income on the date of the accident is taken as the basis; the income cannot be below the minimum wage. Documented additional earnings may also be taken into account.
- Fault ratios: The shares of fault of the employer, the employee and any third parties are determined by expert examination. The compensation is set in proportion to the employer's fault ratio.
- Age and active/passive period: The employee's age on the date of the accident, together with the period during which they can work and their post-working life expectancy (PMF / TRH life tables), are taken into account.
- SGK payments: The initial capitalised value of the income awarded by the Institution is deducted from the amount to be claimed from the employer (the recourse principle).
These data are brought together to reduce the loss of earnings the employee will suffer over a lifetime to its present value. In current practice, when calculating future loss of earnings, the courts prefer actuarial methods that use the TRH 2010 life table and technical interest rates. The tool on this page provides an approximate indication based on these factors; the definitive result becomes clear from the report of the expert appointed by the court during the proceedings.
Which Heads of Compensation Can Be Claimed?
In a work accident file, the following heads are generally claimed: permanent incapacity (disability) compensation, loss of income for the period of temporary incapacity, treatment and recovery expenses, carer expenses (in cases of severe disability), and non-pecuniary damages. In accidents resulting in death, the surviving spouse, children and, in certain circumstances, the parents who were dependent on the deceased may claim compensation for loss of financial support; funeral expenses may also be claimed.
Points to Watch
- Limitation period: As a rule, compensation claims arising from a work accident are subject to a ten-year limitation period; however, where the event also constitutes a criminal offence, the longer criminal limitation periods may apply. Acting early is important so as not to miss the deadline.
- Accuracy of reports: Correctly determining the disability rate in accordance with the current legislation is the decisive element of the compensation. There is a right to object to an incorrect or incomplete report.
- Preserving evidence: The accident report, witness statements, the SGK accident notification, workplace records and photographs form the foundation of the file; gathering these documents after the accident should not be neglected.
- Releases and settlements: A release or settlement document signed after the accident is not always deemed valid if it does not cover the employee's actual loss; signing in haste should be avoided.
Common Mistakes
One of the most common misconceptions among work accident victims is assuming that the income awarded by the SGK covers the whole of the loss. In fact, SGK payments often cover only part of the actual loss; the difference may be claimed separately from the employer. Another mistake is being unable to document earnings higher than the minimum wage even where they were earned; in that case the calculation is made on the minimum wage and the compensation comes out lower. Disregarding the determination of fault, failing to object to an incomplete disability report, and failing to keep track of the limitation period are also frequently encountered mistakes that lead to a loss of rights.
A Short Example Scenario
A construction worker, employed without the necessary safety measures being taken, fell from scaffolding and suffered permanent incapacity for work at a rate of 20%. The expert attributed 80% fault to the employer and 20% to the employee. In this case, the employee's lifetime loss of earnings is calculated taking into account the disability rate, income, age and life expectancy, then apportioned according to the employer's fault ratio, and the present value of the income awarded by the SGK is deducted. The remaining amount constitutes the pecuniary damages that may be claimed from the employer; to this is added separate non-pecuniary damages for the physical and mental harm suffered by the employee. Since the figures differ in every file, this example is intended only to illustrate the method.
Disclaimer: This content and calculation tool are for general information purposes and do not constitute legal advice or a guarantee of a definitive outcome. Every work accident file involves its own particular circumstances; in order to avoid a loss of rights, it is advisable to have your specific situation assessed by a lawyer.