What is Loss of Working Capacity?
Working life is one of the most fundamental elements for individuals to maintain both their economic and social well-being. However, bodily injuries resulting from work accidents, traffic accidents, occupational diseases, or other reasons can lead to the partial or complete loss of individuals' ability to work. In Turkish law, this situation is called "loss of working capacity," and compensation for loss of working capacity comes into play to compensate the victim for the damage suffered
This article will examine in detail the concept of loss of working capacity, its legal basis, calculation methods, Supreme Court decisions, and points to consider in practice.
The Concept of Loss of Working Capacity
Loss of working capacityis the reduction or complete loss of a person's ability to perform work due to deterioration in physical strength or health. This loss includes:
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partial : For example, a person with a 30% disability can continue working but will not be as productive as before.
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complete : The person is no longer able to work in any job.
Legally, this loss can be compensated. The aim is to cover the decrease in the victim's income and secure their future.
Legal Basis for Compensation for Loss of Earning Capacity
The fundamental principles upon which compensation for loss of earning capacity is based are as follows:
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Articles 49 and 54 of the Turkish Code of Obligationsregulate the compensation for bodily harm suffered by the injured party due to a tortious act.
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Article 55 of the Turkish Code of Obligationsstates that the injured party may also be compensated for future loss of earnings.
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Labor Law and Social Security Law: These laws regulate the employer's responsibility in cases of work accidents and occupational diseases, as well as the benefits provided by the Social Security Institution (SGK).
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Highway Traffic Law: Defines the responsibility of the operator and driver in traffic accidents, as well as the obligations of the insurance company.
Therefore, loss of working capacity can occur not only in workplace accidents, but also in traffic accidents, medical malpractice, and even in incidents such as assault or battery.
Who can claim compensation for loss of earning capacity?
Compensation for loss of earning capacity can be claimed directly by the person who has lost their ability to work . However, in some special cases, their relatives may also claim material or moral compensation.
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The victim claims compensation for lost income and medical expenses.
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Relatives → Relatives whose family lives have been disrupted due to serious bodily harm may claim compensation for emotional distress.
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Employer – Insurance Company → They can exercise their right of recourse in cases where they pay only a portion of the damages.
How is the Rate of Loss of Working Capacity Determined?
The rate of loss of working capacity is determined by medical reports . The following steps are followed in practice:
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Medical Board Report: Authorized hospitals determine the victim's disability rate.
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Social Security Institution (SGK) Reports: In cases of work-related accidents and occupational diseases, assessments are made by the SGK.
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Forensic Medicine Institute Opinion: When there are conflicting reports, courts usually seek an opinion from the Forensic Medicine Institute.
For example, if a worker a 40% disability , compensation will be calculated based on that percentage.
Calculation of Compensation for Loss of Earning Capacity
Compensation calculation is a highly technical process and is usually actuarial experts . The factors considered in the calculation are as follows:
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The victim's age
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Gender
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Educational status
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income level
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Work capacity loss rate
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Defect rate
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Accident date and life expectancy
1. Income Basis
In calculating compensation for loss of earning capacity, the income used as the basis is the wage the victim earned or was likely to earn. If the victim is unemployed, the minimum wage level is taken into consideration.
2. Loss Rate
The disability rate is determined and applied to the victim's future earnings. For example, if a worker earning 20,000 TL per month has a 40% loss of working capacity, the calculation will be based on a monthly income loss of 8,000 TL.
3. Actuarial Table
The total loss is determined by considering life expectancy and working time.
Example Calculation
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The victim's age: 30
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Monthly income: 20,000 TL
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Rate of loss of working capacity: %40
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Defect rate: 0% (completely flawless)
In this case, the victim has a monthly loss of 8,000 TL. Based on life expectancy (e.g., 30 years), the total loss is calculated as 8,000 TL x 12 months x 30 years = 2,880,000 TL. This amount discounted and adjusted to its present value.
The Importance of Fault Ratio in Compensation for Loss of Earning Capacity
The degree of fault directly affects the amount of compensation.
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A completely blameless victim → Receives full compensation.
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Partially at fault victim → A reduction in sentence will be applied in proportion to their degree of fault.
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The victim is entirely at fault → Right to compensation is forfeited.
For example, a victim who is 25% at fault will have their right to compensation reduced by the same percentage.
Loss of Working Capacity in Supreme Court Decisions
Certain fundamental principles stand out in the practice of the Supreme Court of Appeals:
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The 21st Civil Chamber of the Supreme Court of Appeals, in its decision numbered 2017/6543 E., 2019/7891 K., emphasized that the rate of loss of working capacity must be determined by a medical board report.
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The Supreme Court's Grand Chamber, in its decision numbered 2016/17-389 E., 2018/75 K., stated that the victim's actual income should be taken into account when calculating compensation.
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The 17th Civil Chamber of the Supreme Court of Appeals, in its decision numbered 2018/2045 E., 2020/3210 K., stated that moral compensation should be at a level that alleviates the pain and suffering experienced by the victim.
The Relationship Between Loss of Earning Capacity Compensation and Social Security Benefits
In cases of loss of working capacity, the victim may also receive certain benefits from the Social Security Institution (SGK):
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Temporary disability benefit
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Permanent disability income
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Disability pension
However, these payments made by the Social Security Institution (SGK) can be offset in compensation lawsuits. The Supreme Court is sensitive to this issue to prevent duplicate payments.
Time Limits in Compensation Claims for Loss of Earning Capacity
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General Statute of Limitations: 2 years (from the date the damage and the responsible party are discovered)
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Long period: 10 years (in any case from the date of the event)
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Statute of Limitations for Criminal Offenses: If the event constitutes a crime, the statute of limitations for criminal offenses applies.
Non-pecuniary damages in compensation for loss of earning capacity
Victims who have suffered physical harm can claim not only material but also moral compensation. This is because physical disability negatively affects an individual's daily life and social relationships.
In Supreme Court rulings, high amounts of compensation for non-pecuniary harm have been awarded, particularly to individuals who have suffered serious bodily harm at a young age.
Important Considerations in the Application of Compensation for Loss of Earning Capacity
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Evidence Collection: The accident report, witness statements, workplace records, and medical reports must be complete.
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Expert Report: Obtaining an actuarial report directly affects the outcome of the case.
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Contacting the Insurance Company: Especially in traffic accidents, it is essential to contact the insurance company before filing a lawsuit.
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Time Limit Monitoring: Statute of limitations periods must be carefully monitored.
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Professional Legal Support: Because these types of cases involve technical calculations, they should be handled by a specialist lawyer.
Frequently Asked Questions
Who determines the rate of loss of working capacity?
Authorized hospitals are determined by the Social Security Institution (SGK) and, if necessary, the Forensic Medicine Institute.
How long does it take for compensation for loss of earning capacity to be processed?
Depending on the complexity of the case, it usually takes between 1 and 3 years to resolve.
Will the compensation be received from insurance?
If the incident is a traffic accident, the insurance company is responsible. In workplace accidents, the employer and the Social Security Institution (SGK) are involved.
If the rate of loss of working capacity is low, is it worth filing a lawsuit?
Yes. Even small amounts of compensation are warranted, and these losses can reach significant sums, especially for young victims.
Conclusion
Loss of earning capacity is a significant issue affecting not only the victim but also their family and society economically and socially. Turkish law has developed mechanisms for compensating victims for their losses, providing both material and moral damages . However, factors such as the degree of fault, income level, disability rate, and actuarial calculations are crucial in this process
Therefore, individuals who have lost their ability to work seek professional support from lawyers specializing in this field .
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