Work accident compensation is an action for pecuniary/non-pecuniary damages brought against the employer by the worker (or, in the event of death, the worker's relatives) under TCO Art. 49 et seq. and Law No. 5510. It differs from traffic accident compensation in that the respondent is directly the employer, not an insurance company.
What is work accident compensation?
Under Law No. 5510, Art. 13, a work accident is an event that immediately or subsequently causes the insured person physical or mental impairment. When a work accident is established, the worker may make a claim through two separate channels:
- Against SGK: Award of a pension, temporary incapacity allowance, treatment expenses.
- Against the employer: Damages not covered by SGK + compensation action.
Note: Work accident compensation first requires an action for determination of a work accident or the SGK's acceptance of the work accident. Otherwise, the compensation action is dismissed.
Heads of claim
| Item | Case | Claimant | Legal basis |
|---|---|---|---|
| Permanent incapacity | Injury / disability | Employee | TCO Art. 54 |
| Temporary incapacity | Recovery period | Employee | TCO Art. 54/2 |
| Caregiver costs / treatment | Injury | Employee | TCO Art. 54 |
| Loss of support | Death | Relatives | TCO Art. 53/3 |
| Funeral and burial costs | Death | Heirs | TCO Art. 53/1 |
| Non-pecuniary damages | Injury / death | Employee / relatives | TCO Art. 56 |
Fault and liability
Employer liability rests on three grounds:
- TCO Art. 49 — Fault-based liability: The employer's breach of its duty to protect the employee.
- TCO Art. 66 — Employer's vicarious liability: Where the employee harms a third party while performing their work.
- Occupational Health and Safety (OHS) Law No. 6331: The employer's duty to take occupational health and safety measures.
The fault ratio is determined by an expert report in the action for determination of a work accident or in the compensation action. The employee's contributory fault is also a ground for reduction.
SGK and İPSD offset
Under Law No. 5510 Art. 21, the employer is released from liability to the extent of the temporary incapacity allowance, permanent incapacity income and death pension paid by the SGK to the employee. This amount is calculated on the basis of the capitalized value (İPSD) and offset against the compensation.
This offset is the most important difference between work accident compensation and traffic accident compensation, and it directly affects the accuracy of the calculation.
Gross negligence exception
Under Law No. 5510 Art. 21/last, if there is gross negligence on the part of the employer, the SGK capitalized value offset does not apply. That is, the employer cannot offset the amount paid by the SGK and is liable for the entire compensation.
Caution: A finding of gross negligence determines the outcome of the case. The occupational safety specialist's report, witness statements, OHS board decisions and inspection records are critical at this point.
Statute of limitations
Under TCO Art. 72: 2 years from learning of the damage and the perpetrator, and in any event 10 years. If the work accident also constitutes the offense of negligent injury/homicide, the (extended) criminal statute of limitations applies and may reach up to 15 years.
Subtopics
Frequently asked questions
Against whom is a work accident compensation action brought?
It is brought against the employer. The employer is released from liability to the extent of the capitalized value paid by the SGK.
Is an action for determination of a work accident mandatory?
Yes, as a rule it is required. Without the SGK's acceptance of the work accident, the compensation action is dismissed.
How is the SGK capitalized value (İPSD) offset?
It is deducted from the compensation under Law No. 5510 Art. 21. However, if the employer is grossly negligent, the offset does not apply.
What does gross negligence mean?
The employer's failure to prevent a danger that could have been prevented by a simple measure. If gross negligence is found, the employer's liability continues in full.
What is the statute of limitations?
TCO Art. 72: 2/10 years. If the act constitutes an offense, the extended criminal statute of limitations applies (up to 15 years).
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