STATUTE OF LIMITATIONS IN OCCUPATIONAL DISEASE COMPENSATION CASE
The statute of limitations for occupational disease compensation claims is 10 years (Art. 146 of the Code of Obligations No. 6098).
The statute of limitations for compensation actions starts from the date the perpetrator and the damage are learnt. The concept of learning the damage in the occupational disease compensation case is very important in terms of the beginning of the statute of limitations. What is meant by the learning of the damage is the learning of the damage with all its terms and conditions (scope, nature, effect, etc.). Especially in bodily damages, the damage reaches a certain clarity only with the doctor’s report issued as a result of care and treatment. In cases where the bodily damage develops, the date of “completion of the development” is taken into consideration as the beginning of the statute of limitations. In occupational diseases where there is no changing and developing situation, the statute of limitations starts on the date of detection of the occupational disease.
EMPLOYER’S LIABILITY DUE TO UNAVOIDABILITY
According to Article 21/1 of the Law No. 5510, “The principle of inevitability is taken into consideration in determining the responsibility of the employer.” The inevitability discount for occupational disease is in question if the employer fulfils all its obligations in accordance with the legislation. In the event that the occupational disease occurs despite the employer taking all kinds of precautions, inevitability reduction should be made from the financial compensation.
Inevitability, which is also referred to as bad coincidence, extraordinary situation, unexpected situation, fortuitous event in the doctrine, judicial decisions and laws, refers to situations that are “scientifically impossible to prevent” in legal and technical terms, in other words, situations that cannot be prevented even if all the measures stipulated by the legislation are taken by the employer.
The elements of inevitability are; 1-The event occurring against the will, 2-Breach of the rule of behaviour or contractual obligation, 3-The existence of a causal link, 4-Unavoidability.
If we need to elaborate on the last one of these elements, the unavoidability of the event, the unavoidability here has nothing to do with the event. The element of unavoidability is completely related to the norm of behaviour and breach of obligation, and is the expression of the violation of a norm of behaviour or a contractual obligation, even if all possible measures have been taken. In other words, although the event is unavoidable, if the breach of a rule of conduct or a contractual obligation can be prevented, it is no longer possible to speak of inevitability. Scientific and technological developments provide the opportunity to prevent a rule of conduct and breach of obligation despite unavoidable events. For example; in the event that the head of the nail breaks and gets into the eye of a construction worker while hammering a concrete nail into the wall to prepare the base on which he will work, although the breaking of the nail is an involuntary and unavoidable event, it is not an unavoidable event that this broken nail gets into the eye of the worker. Because this result can be prevented by using glasses during work. Therefore, in such a case, it is not possible to talk about inevitability by mentioning the unavoidability of the event. Inevitability is characterised as an unexpected situation. Another name for inevitability is coincidence. Inevitability refers to events that can be foreseen but cannot be prevented. Sometimes an occupational accident or occupational disease may occur even if all precautions are taken. In the practices of the Court of Cassation, in case of inevitability, the apportionment of responsibility in the event of inevitability is as a rule 60% employer’s fault and 40% injured party’s fault (YHGK-K.2018/215).
SCOPE OF OCCUPATIONAL DISEASE MATERIAL AND MORAL COMPENSATION CASE
The employee who suffers from an occupational disease may file a lawsuit against the employer for compensation for all kinds of material and moral damages.
Moral compensation is a type of compensation that may be requested by the person whose personality values are attacked. Personality values constitute the personal rights of the individual and although it is not defined in the law, according to the decisions of the Court of Cassation, anyone whose life, health, mental and bodily integrity is impaired may request moral compensation.
The lawsuit for pecuniary compensation is filed to cover the loss of ability to work and other damages suffered by the employee due to occupational disease. The basic elements that determine the scope of pecuniary compensation are as follows
The fault ratios of the parties,
Disability rate if there is a disability,
The last income of the worker.
In case of death as a result of occupational disease; persons who are deprived of the support of the deceased worker may file a financial compensation lawsuit. The compensation awarded in financial compensation cases filed due to death is called “compensation for deprivation of support”. The deceased’s spouse, children, parents or anyone who can prove that the deceased supported him/her can file a lawsuit for material and moral compensation.
Although the deceased did not have any support, first-degree relatives who are saddened by the death may also file a claim for non-pecuniary damages (Art. 56/2 of the Code of Obligations). In case of injury, the relatives of the injured person are not entitled to claim pecuniary compensation. However, if the injury has caused severe bodily harm (for example, blindness in one eye, amputation of a leg or arm), especially if loss of limb has occurred, the relatives of the injured person may also claim non-pecuniary compensation (Art. 56/2 of the Code of Obligations).
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