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Workers’ Compensation: Voluntary Abandonment and McNabb

VOLUNTARY ABANDONMENT OF THE WORKPLACE RULE

Does your employer have a policy that after so many unexcused absents you run the risk of being fired? Often our clients must miss work because of their injuries in order to see doctors or are told that they cannot work because of their injuries. Employers will sometimes fire the injured worker because of the violation of this policy. As a consequence of this the injured worker is said to have voluntarily abandoned the workplace.

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The 2015 Walk For the Poor

lovemercy

I recently saw a biopic on Brian Wilson the troubled singer and writer for the Beach Boys. On the whole the movie was serviceable but did not quite do justice to the compelling story of Brian Wilson’s life. But the thing that had the most impact on me from the movie was the ending footage from a recent concert featuring Brian singing his song “Love and Mercy” (which also happened to be the name of the movie).

“Love and Mercy” is certainly not the best song in the Beach Boy’s or Brian Wilson’s repertoire. I’m not even sure it makes my top ten list. However the message encapsulated within the song, the notion that living this life is hard and that everyone needs deserves love and mercy, is a just as relevant today as it was when Brian wrote it in the 80’s. We all deserve love and mercy from our troubles whether they be related to money, our health, our relationship issues, or whatever roadblocks life throws in our way. Everyone needs a break.

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Employee or Independent Contractor: 11-20

This is a continuation of a prior article. An issue that arises for some of our Columbus Ohio Bureau of Workers’ Compensation Clients is where there exists a construction contract, whether the worker is an employee of a general or sub-contractor and thus covered under that employers Ohio BWC policy. One way the BWC and Industrial Commission tries to determine the classification of the worker is through twenty criteria in R.C. § 4123.01(A)(1)(c). Here are criteria 11 through 20:

11.) Is the person required to make oral or written reports of progress to the other contracting party?

This is another factor that is likely only present in a limited number of employer/employee relationship. As such its absence is not a good indicator whether a worker is an employee or independent contractor.

                    EXAMPLE:  EMPLOYEE

Bob tells Joe that he is to mow a customer’s lawn, plant some treed along the driveway, and finish with laying mulch down on the flower beds. He tells Joes that once he has completed each task and before he starts the next one to call him and tell him how much dirt, gas, etc. he used. This indicates that Joe is an employee because Joe does not have very much independence from Bob while on the job.

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Employee or Independent Contractor: 6-10

This is a continuation of a prior article. An issue that arises for some of our Ohio Bureau of Workers’ Compensation Clients is where there exists a construction contract, whether the worker is an employee of a general or sub-contractor and thus covered under that employers Ohio BWC policy. One way the BWC and Industrial Commission tries to determine the classification of the worker is through twenty criteria in R.C. § 4123.01(A)(1)(c). Here are criteria 6 through 10:

6.) Does a continuing relationship exist between the person and the other contracting party that contemplates continuing or recurring work even if the work is not full time?

A worker that is hired on a job by job basis is more likely to be considered an independent contractor, while it is more likely that a worker is an employee if they work regular hours and on a consistent basis for the employer.

                    EXAMPLE:  EMPLOYEE

Bob hires Joe to help remodel a kitchen, once that job is completed Bob hires Joe again 1 month later to help with another job, and 2 weeks after that job has been completed Bob hires Joe again for another job. Although Bob and Joe’s work relationship is irregular it is frequent enough to establish a continuing relationship that would satisfy Joe being an employee.

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Workers’ Compensation: Construction Contract: Employee or Independent Contractor: 1-5

This is a continuation of a prior article. An issue that arises for some of our Ohio Bureau of Workers’ Compensation Clients is where there exists a construction contract, whether the worker is an employee of a general or sub-contractor and thus covered under that employers Ohio BWC policy. One way the BWC and Industrial Commission tries to determine the classification of the worker is through twenty criteria in R.C. § 4123.01(A)(1)(c).

For the most part, the twenty criteria enumerated in R.C. § 4123.01(A)(1)(c) are mostly self explanatory. In order to lessen confusion we will be laying out the criteria with accompanying examples. Since there are twenty criteria, we will present five criteria at a time. Without further ado here are criteria 1 through 5:

1.) Is the person required to comply with instructions from the contracting party regarding the manner or method of performing services?

If the employer controls the manner or means of the work this is indicative of an employee/employer relationship is created. If a worker is only responsible for the result and not the way in which the job is done then that favors the worker being an independent contractor.

                    EXAMPLE:  EMPLOYEE

Joe was told by Bob to use blue paint on one wall, red paint on another, to use a brush with thick bristles and shows Joe how to place tape around the site in order to prevent the paint from dripping.  This would satisfy Joe being an employee of Bob.

Continue reading Workers’ Compensation: Construction Contract: Employee or Independent Contractor: 1-5

Workers’ Compensation : Part 1: Employee or Independent Contractor

Workers’ Compensation: Employee or Independent Contractor in the Context of Construction Work

One of the many Workers’ Compensation issues we are faced with here at Malek & Malek is whether an injured worker is classified as an employee or independent contractor. If classified as an employee, then you are eligible to receive workers’ compensation benefits under your employer’s workers’ compensation policy. As an independent contractor you are required to have your own workers’ compensation coverage.

The employee/independent contractor classification issue often arises in the context of construction work. R.C. § 4123.79(C)(2) defines a construction contract as:

any oral or written agreement involving any activity in connection with the erection, alteration, repair, replacement, renovation, installation, or demolition of any building, structure, highway or bridge.

Under R.C. § 4123.01(A)(1)(c) , an employee is a person who performs labor or provides services pursuant to a construction contract if he meets ten or more criteria out of a total of twenty. The criteria focus on who had the right to control the manner or means of doing the work. More control tends to suggest a worker is an employee, less control tends to suggest a worker is an independent contractor.

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Hope Everyone Has Had A Nice Summer

When you are a kid and when you have kids, your summer is defined by the beginning and ending of summer vacation. Jim’s son goes back to school this week, and my son goes back to school next week ( I think). With their vacations coming to an end they decided to spend a day working at the office.  At the office they swept the porch,  attempted to file documents, and most importantly created the poster below:

malek malek poster“Malek and Malek Supports All Personal Injuries, You Heard Me Right, All Personal Injuries. We Protect Your Families.”

We at Malek & Malek understand and relate to workers because the attorneys at Malek & Malek have all at one time or another been a “worker.” Speaking for myself, I used to come home from elementary school and  head straight to my neighbor’s houses where I’d rake their leaves for the princely sum of $1 an hour. Probably far below the market price, on the other hand I was in third or fourth grade. As I got older my prices increased. In high school I’d make a killing on snow days, as I’d offer to snow blow people’s driveways for $20 a pop.

In college I worked in a variety of jobs including as a working in a cafeteria as a fry cook, doing laundry in a gym, and working at the Malibu Grand Prix Arcade. After graduation I went to work in the wild and wooly world of video game development. Point is, I and the attorneys at Malek & Malek are not strangers to hard work, and therefore we have the utmost respect for those who work. So when you get injured on the job, we strive to get you the treatment and compensation you deserve.

With that said, please enjoy the rest of your summer, Kip

Group photo malek law firm lawyers

Ohio Workers’ Compensation: Fraud, Don’t Do It

If you are claiming that you are temporarily and totally disabled or permanently totally disabled, you are saying you cannot perform the type of work you did before you were injured. For example, assume an individual works in a warehouse packing items into a box. That person injures his back while lifting the box from the assembly table to the ground. He is deemed temporarily totally disabled because of sprain/strain of his lumbar back region. Assume further that he gets ttd compensation while his back is being treated.

That individual would be committing fraud if he is found working, while collecting ttd compensation. The BWC is very diligent about investigating the legitimacy of workers’ claims. They will surveil injured workers, and individuals found to be committing fraud will be criminally prosecuted.

Case in point is Douglas Roop. Apparently this individual was receiving permanent total disability compensation. At the same time he was claiming to be ptd he was working at his brother-in-law’s businesses. He was found guilty of fraud and had to pay back $22k, YIKES!! Bottom line, play fair, play by the rules.

Ohio Workers’ Compensation: Workplace Rule Violation

 Don’t Voluntarily Abandon Your Job!

In Ohio Workers’ Compensation you might hear the word “abandonment” in regards to your job. Abandonment refers to the departure from your job. If you abandon your job you are no longer working there. It is roughly analogous to quitting your job, being fired/terminated, or laid off from your job. What the injured worker needs to be concerned with is whether that “abandonment” was voluntary or involuntary.

In the workers’ comp world, voluntary abandonment can be a bar to the receipt of temporary total compensation; involuntary abandonment is not. There are a few primary ways to voluntarily abandon the workplace: retirement, incarceration, and violation of a written work rule. In this article I will be focusing on the “violation of a written work rule.”

Voluntary Abandonment: Workplace Rule Violation

The “violation of a written work rule” precedent was first set out in the Ohio Supreme Court Case, Louisiana-Pacific Corp. The Court stated that a termination of an employee was “voluntary” where a written work rule or policy:

  1. clearly defined the prohibited conduct;
  2. had been previously identified by the employer as a dis chargeable offense; and
  3. was known or should have been known to the employee.

workers comp workplace rule

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Ohio Workers’ Compensation: The Historical Compromise

Worker’s compensation law ohio

ORIGINS

The Ohio worker’s compensation law has had a major impact to business and society throughout its history. Just as any law it has been refined and polished numerous times. The law has gone through many changes in its evolution to what your worker’s compensation lawyer at Malek & Malek has become today.

Worker’s compensation sprouted in Ohio, after a nationwide investigation into industrial injuries. After the results of the investigation became known a constitutional amendment was passed by Ohio voters in 1911. This amendment created a voluntary worker’s compensation program for employers. If the employer decided to participate on the program they were held liable to pay 90% of the employee’s premium while the employee had to cover the remaining 10%. There were two built in exceptions that would cause the employer to be held completely liable; they were: if the injuries were caused by the employer’s failure to comply with an ordinance, lawful order, or statute for the protection of the lives or safety of employees (lawful requirement), and also injuries caused by the willful act of the employer. This created a very lenient program for the employer if they decided to even join the program at all.

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