Occupational accidents are regulated by Article 13 of Law No.5510 and Article 11 of the Law No. 506 in our legal system. Two factors need to be determined for work accidents which are regulated by both legislations; generally, the person subject to an occupational accident needs to be insured and the event in terms of a work accident have to occur at the workplace/a location considered as a workplace or the event shall take place during work/in course of work regarding their occupation. Furthermore, occupational accidents; lead to sudden or subsequent physical or mental disabilities or lead to the loss of life. Also a causal link (causality) is needed. In other words, for the occurrence of an incident such as an occupational accident, with adverse results such as the loss of life and disabilities, and the establishment of a cause and effect relation are required.
In practice, whether a heart attack was an occupational accident or not became a controversial topic, SSI (Social Security Institution) did not accept heart attacks as an occupational accident but after the decision by the Court of Appeals heart attacks were accepted as an occupational accident. There is no issue in accepting heart attacks as an occupational accident in occurrences at the workplace or in the places considered as a workplace or during work. The precedent of the Court of Appeals and the SSI Circular dated 2016 defines heart attacks occurring at workplaces as an occupational accident. If the heart attack did not occur at the workplace or during work or at the time when work is being carried out, there is a problem with what the situation will be.
As an example, does the situation of an employee who took sick leave, with complaints of pain in the left arm, back ache, heartburn, went home and was later admitted to the hospital and lost his life after suffering a heart attack in the morning, counted as an occupational accident? Will pain in the left arm and back, or heartburn seen as the initial symptoms of a heart attack? Here, the element of causal link becomes important, as this situation requires special and technical expertise.
In such cases, the contents of the death certificate and whether the heart attack occurred at the workplace, if the incident was triggered by an event at the workplace, if the employee was fatigued is important in terms of the causal link. In these cases, if it can determined that the heart attack occurred at the workplace and the initial symptoms appeared at the workplace or during work, this will be accepted as an occupational accident and the employer may be held accountable (SSI recourse case, lawsuit for pecuniary and non-pecuniary damages by the relatives of the deceased). However, in such cases, an administrative fine to the employer by the SSI may not be fair due to the fact that the employer had not been notified before and during the occupational accident. This incident is a situation that can be determined and resolved medically, and the employer cannot be expected to know it. Therefore, it won’t be possible by the employer or the relatives of the deceased to know if the heart attack was an occupational accident. As long as there is no clear reason or deliberate intention, (such as, taking sick leave after an argument between the employer and employee) a notification from the employer may not be expected.
The relatives of the deceased can file a complaint directly to the SSI. The SSI reviews the issue and decides on whether it was an occupational accident or not. If the SSI decides that it was not an occupational accident, the relatives of the deceased can object to the decision and file a declaratory suit regarding the occupational accident. If a lawsuit is for filed pecuniary and non-pecuniary damages against the employer by the relatives of the deceased without applying to the SSI, in order for the court to determine if the event was an occupational accident a declaratory action filed against SSI is required, and the declaratory ruling by the court where the claim for damages was filed is a prejudicial question for the lawsuit to be filed.
In the precedents of the Court of Appeals on Heart Attacks the majority of the decisions are cases of heart attacks that occur at the workplace or occur in course of work. However, the situation becomes complicated when it occurs neither in the workplace nor at the time of work, but the symptoms begin to occur at the workplace, and the event of death occurs at home or during an activity outside of work and outside the workplace. In a precedent including a worker who lost his life after being brought back home due to feeling ill, the SSI did not accept the incident as an occupational accident and closed the file while the court of first instance rejected the declaratory case for the occupational accident opened by relatives of the deceased.
The Court of Appeals reversed the decision by stating that: “the allegations that the person in question was brought home after feeling ill were not investigated adequately, therefore, it was not appropriate to reach a conclusion without assessing whether the deceased died at home after having a heart attack at work. A decision shall be made based on a report by a specialist physician drafted by hearing employees-witnesses working together in the same night shift as the deceased, asking detailed questions if the deceased had fallen ill during the night shift, if that was the case, what were the symptoms and complaints by the deceased, also, asking the colleagues of the deceased if the deceased was taken home, if it was possible that the deceased could have died at home after suffering a heart attack at home while evaluating all other medical documents in the file.” (21st Civil Chamber of the Court of Appeals decision No. 2015/9588 E. – 2016/3161 K. dated 01.03.2016) The causality link is being investigated in a possible case as shown.
If the SSI decides that the incident was an occupational accident after the complaints made by the relatives of the deceased or the relatives win the declaratory lawsuit regarding occupational accident against the SSI after it had determined that it was not an occupational accident, a recourse lawsuit may be filed against the employer by the SSI or compensation cases may be filed by the relatives of the deceased.
The criteria mentioned below are taken into consideration when determining the fault of the employer in the precedents of the Court of Appeals and a fault assessment by the panel of experts including a specialist cardiologist and occupational health and safety specialists is also considered:
- Records and documents regarding the medical examinations performed before and during the employment of the insured are brought and examined.
- Also the items below are investigated:
- If the employer had all employees take periodic medical examinations, and if any underlying conditions were found that might lead to a heart attack,
- Whether the insured was assigned labor intensive work at the date of the incident,
- Whether the working hours were respected in the case of the insured,
- Which precautions were taken for the wellbeing of the employees at the workplace,
- If an incident had occurred at the day of the incident that would put strain and stress on the insured at the workplace.
- In case of occupational accident caused by a heart attack, the inevitability of the conditions shall not be considered and it is also necessary to determine the distribution between the employer’s negligence and the person’s physical factors. Unlike inevitability of the condition, it is not possible to hold the employer responsible for physical factors.
When evaluating the fault of the employer, it is thought that“ the age, diet and culture, genetic properties, physical make-up, tobacco dependence, alcohol consumption, amount of exercise, gender of the individual are all factors leading to a heart attack, and that health can deteriorate when different factors add-up, the physical predisposition and the general state of health of the insured can lead to myocardial infarction and this condition should be taken into consideration when evaluating the amount of negligence by the employer”
To conclude, the establishment of a causal link consists of a medical and technical determination. Unless there is a deliberate situation it is not possible to comprehend the situation without concluding a technical examination, and the fact that no notice was made by the employer does not necessitate administrative sanctions.
