SGK Recourse Claims and Fault in Occupational Accidents

What is an occupational accident recourse claim, and why is it brought against the employer?

The Social Security Institution (SGK) pays the treatment costs, incapacity benefit and any permanent incapacity pension of an employee who has had an occupational accident. If the accident arose from the employer's conduct in breach of OHS legislation, the SGK claims these payments back from the employer. An occupational accident recourse claim is the action the Institution brings against the employer for this receivable. Arriving months, sometimes years, after the accident, this claim often creates a heavier financial burden for businesses than an administrative fine.

The question that determines the outcome of a recourse claim is this: at the time of the accident, had the employer taken the measures required by the legislation and could it document them? This article explains the legal conditions for recourse, how the amount is limited and the documents that reduce the employer's share of fault. For the first steps after an accident, see our article on the first 72 hours after an occupational accident.

Law 5510 Article 21: the conditions for recourse

The legal basis is the first paragraph of Art. 21 of Law No. 5510 on Social Insurance and General Health Insurance. When the elements of the provision are read separately, four conditions for recourse emerge:

1. There must be an occupational accident or occupational disease. The event must fall within the definition of an occupational accident in Art. 13 of Law 5510; we explained which events fall within this scope in our article on what counts as an occupational accident.
2. The event must have occurred as a result of the employer's intent or an act in breach of OHS legislation. Shortcomings such as not taking the measure set out in the risk assessment, not giving training or not providing PPE fall within this scope.
3. There must be a link between the breach and the accident. A missing document that has nothing to do with the accident is not a reason for recourse on its own; but it may be the subject of a separate fine during an inspection.
4. The Institution must have made a payment or awarded a pension. Recourse is calculated on the payments the Institution has made and will make in future.

The same article contains two further special cases independent of fault. If the accident is not notified to the SGK on time, the temporary incapacity benefit paid up to the date of notification is collected from the employer (Art. 21/2). The temporary incapacity benefit paid for the illness of an insured person employed without a health report in a job requiring one, or in breach of the report in a job for which they are not physically fit, is also charged to the employer (Art. 21/3). If the insured person was employed without being registered at all, under Art. 23 the costs and the initial capital value of the pension are charged to the employer without regard to the conditions of liability in Art. 21.

How is the recourse amount calculated?

Under the Law, the amount charged to the employer consists of two items: the payments made or to be made in future by the Institution, and the initial capital value of the pension awarded, as at the date it started. The initial capital value is the present-day equivalent of the total of the pension to be paid in future; in the case of permanent disability or death, this is the item that makes the recourse amount large.

The upper limit of the amount is also written in the Law: recourse is limited to the amount the insured person or their dependants could claim from the employer. Because the compensation the employee could claim from the employer is proportional to the employer's fault, the employer's share of fault is the variable that directly determines the recourse amount. For example, if part of the fault is attributed to the employee or a third party in the expert report, the share falling to the employer becomes smaller to that extent. For a third party's fault, Art. 21/4 separately provides a route of recourse against that person.

How is the employer's share of fault determined?

The share of fault is determined during the proceedings by experts appointed by the court. The expert compares the way the accident happened with the employer's OHS obligations. The questions asked in this comparison are always the same:

• Was this hazard identified in the risk assessment, and had the recommended control been implemented?
• Had the employee been trained to do this job and, where necessary, had a vocational training certificate and a fitness-for-work report been obtained?
• Had the necessary PPE been provided and its use supervised?
• Had the machine or equipment been periodically inspected, and were its guards in place?
• Was there a written instruction or work permit for the job, and had it been issued to the employee?
• Did the employee act in breach of their own obligations (Law 6331 Art. 19); did they remove the guard or fail to use PPE?

The last question is important: the employee's fault can reduce the employer's share of fault. But the expert also asks: did the employer know about this behaviour, warn against it and supervise it? On a machine that has been operated for years with its guard removed, the defence that "the employee removed it himself" does not on its own save the employer; Art. 4/1-b of Law 6331 gives the employer the duty to monitor and check whether the measures taken are being followed.

Documents that reduce the share of fault

In a recourse claim, the employer's only tool is the records created before the accident. The table below shows the documents the expert looks at and the shortcomings most often seen on site:

The conclusion from this list is simple: it is not enough for the measure to have been taken; there must be a dated and signed trace that it was taken. Training given verbally, a site warning that was not recorded or an instruction that "everyone knows" do not exist in the case file. Our guide to OHS file contents helps keep the documents together.

Protecting the file after the accident

What is done in the first days after the accident determines how the expert will read the event:

1. Protect and photograph the scene. Record the condition of the machine, guard, PPE and floor before anything is touched.
2. Take the report and witness statements the same day. The statements of those who saw the event change as time passes; for the method see our article on the accident report and witness statements.
3. Notify the accident on time. Under Art. 14/2 of Law 6331, the accident is notified to the SGK within 3 working days after the accident; late notification creates a separate financial burden under Art. 21/2. For the steps see our article on SGK occupational accident e-notification.
4. Freeze existing documents as they are. Take a copy of the training, issue, instruction and inspection records relating to the accident as they stood on that day.
5. Investigate the root cause and renew the risk assessment. An occupational accident requires the risk assessment to be renewed regardless of its period.

Preparing backdated training forms or records after the accident does not strengthen the defence; when discovered, it destroys the credibility of all the employer's documents. If a document is missing, the only right course is to accept this and start the measure from today.

Does working with an OSGB remove recourse?

No. Art. 4/2 of Law No. 6331 on Occupational Health and Safety states clearly that obtaining services from experts and organisations outside the workplace does not remove the employer's responsibility. The defendant in a recourse claim is the employer. The contribution of an OSGB (joint health and safety unit) is to identify hazards and notify them in writing, keep the risk assessment and training records in order, and thereby ensure that the employer has a defensible file. For the division of duties, see our article on the employer's responsibility when working with an OSGB.

In businesses in Bursa and the surrounding provinces, as part of our OHS specialist service, we enter findings in the approved logbook and follow up their closure; in our risk assessment work, we record each measure together with evidence of its implementation. For example, in a metal and machinery workshop, the periodic inspection report, instruction and issue record for the press guard are kept in the same file. Separately from recourse, you can see how administrative fines are calculated with our OHS administrative fines tool.

Frequently Asked Questions

When is an SGK recourse claim brought?

After the Institution has made payments or awarded a pension because of an occupational accident or occupational disease, if it concludes that the event resulted from the employer's intent or an act in breach of OHS legislation, it seeks recourse from the employer under Art. 21 of Law 5510. The claim often arrives months after the accident.

If the employee was also at fault, does the employer pay the whole amount?

No. Recourse is limited to the amount the insured person could claim from the employer, and this amount is proportional to the employer's fault. If fault is attributed to the employee or a third party, the employer's share becomes smaller; however, because of the employer's duty of supervision, it should not be expected that the whole fault will be placed on the employee.

What does the principle of unavoidability mean?

It means that, in an event that could not have been prevented even though all the measures required by the legislation were taken, the employer's liability is assessed accordingly. Benefiting from this principle depends on showing with documents that the measures were taken before the accident.

Is a recourse claim brought against an employer working with an OSGB?

Yes. Under Art. 4/2 of Law 6331, obtaining services externally does not remove the employer's responsibility. The OSGB's written findings and records showing that they were closed are important evidence in assessing the employer's share of fault.