INSIGHTS

Work Injuries

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Università degli Studi di Roma “La Sapienza”
Research Paper
WORK INJURIES
DİLA ISIYEL

PROF. GIUSEPPE SANTORO-PASSARELLI
Rome, 2011. 

THE DEFINITION OF WORK INJURY
The concept of work injury is defined by “The Social Insurances and General Health Insurace Code number 55101” in Turkish law. There are several elements in The Code which defines work injury and with those elements we can figure out which injuries can be defined as work injuries. We can understand that there is not an exact definition for the concept of work injury in The Code, but from some elements that are written in The Code, we can figure out the concept of work injury.
The definition of work injury is stated in The Code¹ article number 13. The title of the article number 13 is “The Definition of Work Injury, It‟s Declare and It‟s Investigation”. According to this article there are five elements which defines an injury as a work injury. Those elements are;
a) Insuranced workman has to be in his workplace.
b) The injury must appear because of the employment which his
employer asked him to do.
c) Outside the workplace if the workman sent somewhere for a duty.
d) In the breaks that woman worker have to suckle her baby.
e) During the coming and going to the workplace with a vehicle which
the employer is arranged.
If an injury happens in these conditions it will be defined as a work injury. From this article we can find out that there is not an exact definition for work injury but it is defined by some elements.

According to the decision² of the Supreme Court of Appeals, “….work injury is not defined in the act, but it is expressed that in which conditions an injury can be a work injury with the terms of time and place…. according to the article 13, a work injury is an event that happens in one of the conditions that the article expressed and gives a damage to the insuranced workman physically or spiritually….these conditions are not examples but boundries….materialization of one of the conditions is necessary and enough…”.

According to the Turkish doctrine a work injury is defined as, “an event that happens when an insurance workman is under the authority of the employer and which gives damage physically and spiritually”. ³

THE ELEMENTS OF WORK INJURY
There are several elements to mention about a work injury which are having  insurance, an injury, there should be a suitable connection and insurance workman has to be damaged physically or spiritually.

a) Having An Insurance

First of all, to define an injury as a work injury the worker who had the injury has to be insurance according to The Code. Even if the workman does not inform the workplace for his injury that would be a work injury if the insurance workman starts to work.

b) An Injury

Secondly, the workman has to be injured. Injury generally means a bad event that causes damages on goods or on life. Injury is the all reasons that causes a damage suddenly and unwillingly. This definition includes the damage occurs on goods and also the death.⁶ The only difference on the definition of the work injury is that this injury need to be occured because of the workman‟s professional activity.⁷

1. Elements of Work Injury

According to these definitions of work injury, we can mention about there elements.

a) A Fact Which Comes From the Outside World
b) An Event Occurs Unwillingly
c) Happens Suddenly

We can say that these are the elements of work injury. First of all, an injury have to occur with a fact that comes from the outside world. Also this fact which comes from the outside need to cause damages physically or spiritually. For an instance, a fire, falling down, electric shock and poisining.

An injury may happen in the workplace with a cause of the workman’s himself, as a heart attack. Under this condition, an injury can not be defined as a work injury because there should be a fact comes from the outside⁸, but this subject is moot in the Turkish doctrine.

Second element is an event occurs unwillingly. This means that the fact comes from the outside world does not wanted from the workman. It has to occur without the will of the workman. Otherwise, defining it as a work injury is moot in Turkish doctrine.

According to some of the professors⁹ , an injury can be a work injury if the insurance workman has a negligence. The reason of this idea is depend on The Code article number 22 which expresses that if the injury that gives damages occurs with the negligence of the workman, the fee should be paid to him according to the degree of his negligence.

According to the other professors ¹⁰ which also we agree with, actions of the workman which are made on purpose are not the part of the concept of the work injury. This opinion explains that the article number 22 does not define the actions which are made by the insurance workman as a work injury, but it does punish the workman because of his actions which are made on purpose by withhold of his fee that has to be paid. And also this is the reason why a suicide is not in the concept of the work injury, because a suicide is also an action based on a will. The reason of the suicide is not the workman‟s employment but his will.

Some of the professors like Aslanköylü and Caniklioğlu, defends that suicide is also in the concept of the work injury.

The last element of work injury is that have to happen suddenly. It means that the cause have to occur in a short time. For an instance, a death after one hour of the poisining from gas. A work injury is different from the disease that happens from the employment, because the disease occurs after a long time repeated the same facts about the employment. The fact that work injury happens suddenly, is the most important reason that distinguish work injury from industrial disease.

2. Situations of a Work Injury

Before, in the definition part we mentioned about The Code article number 13 that expresses the situations of a work injury. These element were;

a) Insuranced workman has to be in his workplace.
b) The injury must appear because of the employment which his employer asked him to do.
c) Outside the workplace if the workman sent somewhere for a duty.
d) In the breaks that woman worker have to suckle her baby.
e) During the coming and going to the workplace with a vehicle which the employer is arranged.

According to this article a work injury can be occur at the time that the workman is in his workplace. A workplace is a place that the workman do his employment. This means that all of the places where workman rest, eat,
suckle her child, sleep, get a shower are in the concept of workplace which are connected to the main workplace.

The Code accepts that all injuries occurs in vehicles, buildings which are the parts of the main workplace, are defined as a work injury, so it save the workman in a wide area.

According to the article number 13, if an injury occurs while a workman is doing his work which is given by the employer, it will be defined also as a work injury. If an injury occurs when the employer send the workman to another place apart from his workplace with a duty or the workman has to go out from his workplace because of his work, this will be a work injury.

Sometimes a workman can be sent to another city or country by his employer. The place he goes is not important. The only important thing is that he goes because of his employment, so it means that the workman is under the authority of his employer. If an injury happens under these conditions, it will be also a work injury.

According to the article number 13, when a workwoman gives a break to suckle her child, if any injury happens to her, it will be defined as a work injury.

The Code of Labour article number 74, gives a right to a workwoman to feed her child who is under one year old, totally one and a half hour per day. The workwoman herself decides when to use these breaks. For an instance, if a workwoman have a car accident while she was coming to her workplace during her suckle break, it will be a work injury.

Another situation is that if a workman have an accident while he is coming to his workplace or going from his workplace by a vehicle which his employer provides, it will be a work injury. According to this article, there should be a vehicle which is provided by the employer and the workman need to be carried with this vehicle. The vehicle is not suppose to be the employer‟s own.

c) A Suitable Connection

Thirdly, there should be a suitable connection and this suitable connection has to be between both the employment and the event of the injury and also between the event of the injury and the damage. That is because not all of the injuries that happens to the workman are defined as a work injury. There should be a connection between the cause and the result.

When an injury occurs in the workplace which a workman does his job, it is the most strong suitable connection. An employer does not have to be the owner of the workplace. If an injury happens when a third party which the employer has a deal with, carries the workman to the workplace, it will be a work injury.

The most important thing that have to be investigated is that if the workman was under the authority of the employer or not. The injury has to got a connection with the work the workman does. If the workman was doing his own work, it will not be in the concept of the work injury.

According to the Supreme Court‟s decisions, all concrete events need to be investigated by it‟s own conditions by an expert.

d) A Damage Occured Physically or Spiritually

The last element of work injury is that the insurance workman needs to be damaged physically or spiritually. To mention about a work injury the damage has to occur immediately when the event of injury happens or has to occur after the event of the injury. The damage needs to be adequate and enough to have the social insurance help. The damages which are unimportant and can coincide every day in work life are not in the scope of work injury. For instances, broken bones, deaf, blindness, burn, cerebral hemorrhage, mental illness and loss of the memory are defined as work injuries.¹¹ The death of the insurance workman is defined also as a work injury.

INFORMING A WORK INJURY AND IT’S INVESTIGATION

It can be moot if an injury is a work injury or not. Under these conditions, according to the article number 13, the case needs to be investigated. The investigation can be made by officer in charge or by an inspector of the government. After this investigation, it will be clear that if the injury is a work injury or not. If it is not a work injury and the payment also had been done, then the payment will be taken back.

There are some time limits about reporting the injury according to The Code. If the employer does not report the injury in time, he will be responsible about the payment that will be made to the workman. This is only about the responsibility of the employer’s reporting. It is not related with a negligence of the employer.

CONCLUSION

In this work I tried to analyses the concept of the work injury according to the Turkish Law. Some elements should be getting together if an injury is defined as a work injury. The most important element of those elements is having insurance. Besides, there should be an event of injury.

The event of the injury need to be investigated and it has to occur under the authority of the employer.

The employer has some legal duties to take care of his workman and safety at work. An employer, for instance, must safeguard his workman against defects in his own premises, but (with certain reservations) he is not responsible for the collapse of the building of a third party to which the workman is sent in the course of their employment: for the structure of such a building is not under the employer’s control.¹² The employer is also responsible of the safety at work and he is threatened not only with penal sanctions but also with civil liability for damages resulting from work injuries.¹³ 

In this research paper I tried to give a summary about the definitions and the elements of work injuries according to the Turkish law and i benefited from literature, court decisions and doctrine.

BIBLIOGRAPHY
Güzel, Ali; Okur, Ali Rıza; Caniklioğlu, Nurşen: Social Security Law,
İstanbul, Beta Publishing, 12th Edition, 2009.
Can Tuncay, Ömer Ekmekçi, The Elements of Social Security Law
According to the New Legislation, Legal publishing, Second Edition,
İstanbul, 2009.
The Social Insurances and General Health Insurace Code number 5510 in Turkish Law.
Munkman, John, Employer’s Liability at Common Law, London
Butterwoths, Seventh Edition, 1971.
Szubert, Waclaw, International Encyclopedia of Comparative Law, Tübingen Martinus Nijhoff Publishing, London.

¹ In this work it will be mentioned as “The Code”.

² Supreme Court of Appeals, Date: 13/10/2004, Fundamental number: 2004/21-529, Decision number: 2004/527.

³ Ali Güzel, Ali Rıza Okur, Nurşen Caniklioğlu, Social Security Law, Beta publishing, 12th Edition, page 317; Can Tuncay, Ömer Ekmekçi, The Elements of Social Security Law According to the New Legislation, Legal publishing, Second Edition, İstanbul, 2009, pg. 264.

Güzel, Okur, Caniklioğlu, Social Security Law, page 318; Tuncay, Ekmekçi, The Elements of Social Security Law According to the New Legislation, pg. 264.

http://tdkterim.gov.tr/bts/?kategori=verilst&kelime=kaza&ayn=tam%20(Turkish%20Dictionary).

⁶ Güzel, Okur, Caniklioğlu, Social Security Law, pg. 320.

⁷ Tuncay, Ekmekçi, The Elements of Social Security Law According to the New Legislation, pg.265.,

⁸ Tuncay, Ekmekçi, The Elements of Social Security Law According to the New Legislation, pg.265.

⁹ Güzel, Okur, Caniklioğlu, Social Security Law. , s. 321; Aslanköylü, Saraç.

¹⁰ Tuncay, Ekmekçi, The Elements of Social Security Law According to the New Legislation , s. 265.

¹¹ Güzel, Okur, Caniklioğlu, Social Security Law, pg. 328; Tuncay, Ekmekçi, The Elements of Social Security Law According to the New Legislation, pg. 273.

¹² Munkman, John, Employer’s Liability at Common Law, pg. 31, London Butterwoths, Seventh Edition, 1971.

¹³ Szubert, Waclaw, International Encyclopedia of Comparative Law, pg. 77, Tübingen Martinus Nijhoff Publishing, London. 

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