Month: November 2017

Fight At Work: Workers Comp Injury?


With Thanksgiving comes Black Friday. Over this past weekend I was watching these clips on Youtube of Black Friday Madness. One in particular was particularly brutal. It depicts what appears to be a shopper slamming a Kmart employee into shelving. I believe the Kmart employee broke his hip in the incident.


I thought to myself is this a compensable work injury?

  1. happened at work? yes, assuming the Kmart vest wearing man was working at Kmart and not some weirdo wearing a Kmart vest while shopping at Walmart.
  2. Not an idiopathic injury? No, idiopathic essentially means you are walking down a hall and you pass out/fall onto the ground for no apparent reason. You didn’t trip over a rug, or something on the ground. Clearly here the kmart worker was body slammed by some crazy shopper.
  3. Is there an exception that applies that would make this not a compensable work injury: not Horseplay, not frolic/detour, going/coming rule doesn’t apply, probably not intoxicated due to drugs/alcohol, obviously Fight Exception may apply.

In the Ohio Workers Comp, Work Injury world if you get injured while fighting on the job, your injury may not be a compensable injury. That is you may not have a workers comp claim. The rule is as follows:


Work Injuries due to fights at work are compensable injuries as long as

  1. the injured worker did not start the altercation or start the fight.
  2. the basis of the fight must centers around the job. There’s room for argument with this particular factor, particular since the lines between work matters and personal matters can be blurry. A quick example: not job related you get in a fight because you co-worker called your dog a smelly mutt. Job related, your co-worker is jealous you got a pay raise and he didn’t and he gets into your face, insults your dignity, you respond and then he hits you.

Back to our Kmart body slam incident. I’m thinking this situation is more analogous to circumstances of our clients who are employed in specialized health care and incarceration environments. For instance if you get attacked by a developmentally disabled patient, that’s not a fight perse but an unprovoked attacked. Likewise if you working in a jail and are ambushed by an inmate.

I’d argue that the Kmart employee, though possibly a bit over-zealously, was working for the benefit of Kmart by executing Kmart policies against something that the customer was doing. Therefore the Kmart employees broken hip should be a compensable work claim.


Bottomline folks, there’s nothing wrong with doing your best or trying to your best on the job, but at the end of the day a job is just a job, please don’t take unnecessary risks. I hope the Kmart worker is getting all the necessary treatment he is due.

Hopefully you do not have a work injury, but if you do and have questions or concerns please give the attorneys at the Malek Law Firm a call/email. Have a nice and calm December. Cheers, Kip



We’re firmly in the Holiday Season. Black Friday has come and passed, but there’s still a month to go of Christmas madness. Mad rush to shop for things we and our children don’t need. This is also a time for seasonal temp work. Retail stores, warehouse jobs, fulfillment centers hire extra folks to deal with all the holiday business.

While I was in college, I worked at Cheryl’s Cookies in Westerville, Ohio during a holiday break . Basically you packaged boxes of cookies for 8-10 hours a day. It was pretty decent work, they had free “broken” cookies in the break room, and I made a little extra cash.

I didn’t get injured at Cheryl’s Cookies, but what if I had, would I have a work claim even though my intention was only to work there for two-three weeks? Yeah absolutely. Technically you would have a claim even if you worked only for a moment, but for the sake of clarity I’ll run down a brief list of examples from hard (“might not have a claim”) to easy (“probably have a claim”).


Hard Case

You get hired to work for the month of December at Acme Warehouse. You haven’t actually started doing any “work” for Acme, rather you are pulling into the Acme Warehouse parking lot. Some third shift worker, exhausted from picking Acme products all night, pulls out of his parking lot like Steve McQueen from Bullitt. He smashes into your car. You suffer a lumbar strain. Do you have a claim? Employer’s attorney will probably argue that you hadn’t started working and therefore not a compensable claim, our argument would be that the only reason you are in the parking lot is for the benefit of the employer, therefore compensable claim.


Second example, first day on the job, you park in Acme’s parking lot, no problems. You clock in, on the way to your first pick of the first day of the job you trip over a palette land on your back, suffer a back sprain and hip sprain. Compensable injury? Barring any other facts, sure. Doesn’t matter that you had only worked there for all of ten minutes. You have a work injury.

Frankly I could continue on, but barring some other factor, the result would be the same.


Now the other argument the employer’s attorney might bring up is:

Hey This Person is a Seasonal Employee, They May Have a Claim But they Shouldn’t Be Entitled to Compensation.

Our position would be that sure this is seasonal work, but now because of the work injury the injured worker can’t get another job therefore he/she should be entitled to compensation. If the opposite were true, i.e. the employer was only required to pay compensation for the theoretical duration of the seasonal employment, this would incentivize employers to purposefully employ folks for a limited duration of time. Reduce their risk, with the knock on effect of employers paying less attention to job safety. Traditionally the Ohio legislature has not been in the habit of incentivizing unsafe work environments.

SO Seasonal Temporary Workers May Be Entitled to Medical Benefits and Compensation Despite only working/intending to work for a limited amount of time . . . and that’s the bottom line! ( as delivered by Stone Cold Steve Austin ).

I wish you a nice December, and if you are working a seasonal job I wish you get all the overtime work you can manage. Hopefully everyone remains safe and injury free.Cheers, Kip