Occupational Disease and Compensation Claim

The obligation to take occupational health and safety measures in the workplace is one of the primary responsibilities encompassed within the broader duty of care of the employer towards the employee. In other words, the employer must protect the employee's fundamental rights, including life, health, and physical integrity, against workplace hazards.[1] The subject of our article is occupational diseases that arise due to the employer's failure to fulfill their duty of care towards the employee.

Occupational disease refers to temporary or permanent illnesses, physical or mental disabilities that occur repeatedly due to the nature of the insured person's work or the conditions under which the work is performed, as defined by the law. The concept of occupational diseases is entirely related to the world of work and is at the forefront of occupational risks.

DETERMINATION OF OCCUPATIONAL DISEASE AND ITS CONDITIONS

Occupational disease is defined in Article 14 of Law No. 5510 on Social Security and General Health Insurance. According to the law, the necessary conditions for the diagnosis of an occupational disease are as follows:

• There must be a mandatory causal relationship between the disease and the work or work environment.
• The disease must be included in the list of occupational diseases.
• The occupational disease must be determined by a medical report from authorized hospitals.
• It must be approved by the Institution Health Board.
• The disease must occur within the obligation period.

In Turkey, the list of occupational diseases is included in the "Regulation on Health Procedures of the Social Insurance Law" in Article 5. Occupational diseases are classified based on the factors that cause them.

The Determination of Occupational Disease

According to Article 14 of Law No. 5510 on Social Security, the determination of whether an insured person has contracted an occupational disease due to their work is as follows:

a) Examination of the health board report and the supporting medical documents prepared in accordance with the procedures by healthcare service providers authorized by the Institution.

b) Examination of inspection reports on working conditions in the workplace and related medical findings, as well as any necessary other documents, when deemed necessary by the Institution, with the result being determined by the Institution Health Board.

If an occupational disease occurs after leaving employment and is caused by the work for which the insured person was employed, the following conditions must be met for the insured person to benefit from the rights provided by law:

There should not be a period longer than the one specified in the regulations to be issued by the Institution between the insured person's actual departure from their previous job and the occurrence of the disease. Individuals in this situation can apply to the Institution with the necessary documents. Even if the obligation period specified in the list of occupational diseases has been exceeded in cases where any occupational disease is determined by clinical and laboratory findings, and the cause of the occupational disease is determined during the workplace investigation, the disease can be considered an occupational disease upon the approval of the Social Insurance High Health Board upon the application of the Institution or the concerned party.

Reporting Occupational Disease:

For insured persons who are subject to an employment contract, it is mandatory to report the occupational disease to the Institution within three working days starting from the day they learn about the disease or when it is notified to them by the employer. In the case of independently employed insured persons, they are responsible for reporting the occupational disease to the Institution themselves within three working days from the day they become aware of it.

For example, if an insured person learns about their occupational disease on a Tuesday, the occupational disease report to the Institution, whether initiated by the employer or the individual, must be made no later than Thursday.

Failure to Comply with the Occupational Disease Reporting Deadline

Employers and 4/b insured individuals who do not fulfill their obligation to report occupational diseases may face consequences. The Institution can recover the expenses incurred for this situation, including general health insurance expenses, and also recover temporary incapacity benefits if they have been paid. Additionally, administrative fines are imposed on employers who do not make the report within the specified deadline.

The amount of these administrative fines varies depending on the number of insured individuals working in the workplace and the classification of the workplace as low-risk, high-risk, or very high-risk. These fines are adjusted annually at the beginning of each calendar year in line with the revaluation rate.

Occupational Disease Claims

Rights provided under occupational disease insurance, as per Article 16 of Law No. 5510 on Social Security, include the following:

a) Providing daily temporary incapacity benefits to the insured during the period of temporary incapacity to work.

b) Granting a permanent incapacity income to the insured.

c) Granting income to the beneficiaries of the insured who died as a result of a work accident or occupational disease.

d) Providing marriage benefits to female beneficiaries who are receiving income.

e) Providing funeral benefits for insured individuals who died as a result of a work accident or occupational disease.

In our labor and social security legislation, there is no regulation regarding whether insured individuals or beneficiaries can demand compensation from the employer for damages not covered by insurance. According to the general provisions of the law, it is mandatory for the party causing the damage to compensate the victim/employee for their losses. Therefore, it is widely accepted in both legal doctrine and jurisprudence that employees or, in the case of their death, their dependents can apply to the employer for damages not covered by insurance. [2]

According to a decision by the General Assembly of the Court of Cassation, such lawsuits for compensation of damages not covered by social insurance are based on the principle of compensating damages that are not covered by social insurance assistance. [3] In cases where all the damages of the worker or the dependents left without support have been covered by insurance, they cannot apply to the employer for monetary compensation.

Claims for material or moral compensation against the employer are primarily based on Article 49 of the Turkish Civil Code (TBK). According to this article, anyone who causes harm to another person through a wrongful and negligent act is obligated to compensate for that harm. As implied by this provision, the amount of this compensation should be equal to the harm suffered.

As a result of occupational diseases, workers whose bodily integrity has been violated or their dependents can claim material compensation from the employer for medical expenses, loss of earnings, losses arising from the loss of working capacity, and damages resulting from the disruption of their economic future (TBK Article 54).

In the case of the worker's death, the dependents left without support can claim expenses for the funeral, medical treatment if death did not occur immediately, losses arising from the decrease or loss of earning capacity, and losses suffered by the dependents due to this reason (TBK Article 53).

Due to occupational diseases, workers or dependents left without support can also claim moral damages from the employer (TBK Article 56). Moral damages cannot be divided and can be claimed at once. [4]

TIME LIMIT FOR FILING A LAWSUIT

The time limit, also known as the statute of limitations, for filing a compensation lawsuit due to an occupational disease is 10 years from the date of diagnosis of the occupational disease (Turkish Civil Code, Article 146).

RIGHT TO FILE A LAWSUIT

A compensation lawsuit for material damages can be filed by the injured worker. If the worker has passed away, their dependents have the right to file a lawsuit. For example, the spouse, children, parents, and adopted children have the right to file a lawsuit.

The defendant is typically the employer who employed the worker. If the worker is an employee of a subcontractor working at the workplace or in a specific part of the work, both the main employer and the subcontractor may be held jointly responsible for the compensation claim. [5]

COMPETENT AND AUTHORIZED COURT

According to Article 5 of Law No. 7036 on Labor Courts, the competent court to hear lawsuits related to all kinds of legal disputes arising from employment contracts or the law between workers subject to employment contracts and employers or their representatives due to the employment relationship is the Labor Court.

The court authorized to handle compensation lawsuits arising from occupational diseases is also mentioned in this article. According to the article:

In lawsuits filed in labor courts, the competent court is the court where the defendant, whether an individual or a legal entity, has their place of residence as of the date when the lawsuit was filed, or the court where the work or transaction was conducted.

If there are multiple defendants, the court where one of them has their place of residence is also competent.

Contracts that violate the provisions of this article regarding jurisdiction are considered invalid.

CONCLUSION

In summary, the employer's liability for compensation arising from occupational diseases is based on a fault liability stemming from contractual non-compliance (violation of the duty of care towards the employee). According to the Court of Cassation, even if the employer has no fault in cases of occupational diseases, and the incident is unavoidable, they can still be held responsible if there is a causation link.

Leyla Sarı

REFERENCES

[1]Sarper Süzek. Labor Law. Istanbul: Beta Publications, 2005.

[2]Tunçomağ, 274. Oğuzman, Liability of the Employer, 337,341,342. Tekinay Oğuzman, Liability of the Employer, 89,91. Çelik, 158. Ekonomi,155. Eren, 79-80. Süzek, Occupational Safety, 193-194. Akın,206 and onwards.

[3]Court of Cassation Plenary Session 10-398/1315, November 19, 1975.

[4]Court of Cassation 21st Civil Chamber, 2000/4323 E. 2000/4428 K., June 1, 2000.

[5]Court of Cassation Plenary Session 2012/21-732 E. 2013/207 K., February 6, 2013.

[6]Court of Cassation Plenary Session, March 27, 1957, Decision No. 1/3.