Month: December 2019

Top Ten Workers Comp Best Practices in 2020

Top Ten Workers Comp Best Practices in 2020

This list is helpful whether you have a work injury before or have not, whether you have a work injury lawyer or have not.

1.) Documentation

Go to a medical professional, ER/Urgent Care/Primary Care Physician/Minute Clinic. Tell the doctors/nurses everything that is bothering you. Workers comp is all about documentation.

2.) Report

Let employer know about your injury. Tell your boss/supervisor/manager/HR that you have been injured. Send them an email, send them a text. Insist they write an accident report.

3.) Avoid NO CALL, NO SHOW

If you miss work, call your employer/HR everyday that you will not be in to work. Be aware of the common 3 strikes you are out policy. That is most companies have a 3 No Calls/No Show policy whereby you are terminated if you violate the policy. This can have a significant impact if you are receiving/wish to receive comp.

4.) Mail

Check your mail everyday. You will be getting very important letters from the BWC that may need to be appealed. If they are not appealed in time you may be screwed. If you move let the BWC, Industrial Commission, your attorney know your new address.

5.) Industrial Commission Hearings

If you receive a notice to attend a hearing, attend the hearing. Get to your hearing 30 minutes early. If your hearing is scheduled at 9AM it may be called anytime between 9AM and 9:40 AM. If your hearing is called at 9:00 AM and you arrive at 9:05 AM. It may be too late, most hearings are pretty quick. Depending on what IC you hearing is scheduled, their may be traffic. Again better to be early and bored waiting for your hearing, than late.

6.) Medical Bills

If you have a medical bill related to your claim, that bill must be submitted within a year of the date of service of the bill. So if you have a bill from January 10, 2019, it must be submitted by January 9, 2019.

7.) Wage Rate

Check your average weekly wage and full weekly wage. If you don’t know what these are, figure it out. Super important. If they seem low, they probably are low and need to be adjusted.

8.) ICON and BWC

Create an account on the Industrial Commission website ICON, and the BWC’s website. That way you can see all the correspondences and medical records, etc. related to your workers comp claim.

9.) Elevator Pitch

Be able to explain how you got injured at work in a clear, concise, and consistent way. Make an “elevator pitch” for your claim. This is particularly true of explaining your injury at a hearing. Hearing officers hear 100-1000’s of hearings every year. Also be consistent. Don’t come up with a different mechanism of injury at the hearing.

10.) Attorney

Get an attorney. Goes without saying this workers comp nonsense is unnecessarily complicated. You’ll save yourself time, money, and tears if you get a work injury lawyer. Malek & Malek are the best work injury lawyer in Ohio. We’ve represented 1000’s of clients, and recovered millions of dollars for those clients. Contact us today for a free consultation!

Understanding Workers Comp and the Going and Coming Rule

Workers Comp and the Going and Coming Rule

Workers Comp Attorney Kip Malek discusses the Going and Coming Rule in this video. But essentially the going and coming rule may apply to your situation if you get a worker injury on the road or at any location that isn’t your customary place of employment. The effect to you, is that if the going and coming rule is implicated in your factual situation, then your claim will be denied as a workers comp claim.

The case law that Kip discusses in the video is broken down in a more comprehensive manner below. Bottomline is if you are looking for the best workers comp attorney in Columbus, Ohio call Malek & Malek Law Firm and let one our attorneys help you navigate the workers compensation system for you. The going and coming rule is just one of the complicated legal rules that may come up in your case.

We offer a free consultation and there is no obligation that you sign with us as your attorney following this consultation. If you want the best workers comp attorney in Columbus give us a call or contact us today

Going and Coming Case Law

Fisher v. Mayfield, 49 Ohio St.3d 175, 1990

Claimant’s injuries must have both

        1.  been sustained “in the course of employment”: time, place and circumstances of the injury
        2. “arising out of employment”: whether there is a casual connect between the injury and the employment. à apply Lord v. Daughtery “totality of the circumstances test”

Ruckman v. Cubby Drilling, 81 117, 1998

Fixed-Situs Test to determine whether the “Going and Coming” rules applies:

Focus is on whether the employee commences his substantial employment duties only after arriving at a specific and identifiable work place designated by his employer

The focus remains the same even though the employee may be reassigned to a different work place month, weekly, or even daily.

Despite periodic relocation of job sites, each particular job site may constitute a fixed place of employment

SPECIAL HAZARD RULE: If an employee’s injury occurs in the course of employment, yet fails the Lord Three part test for causation

A fixed situs employee may nevertheless demonstrate the required causal connection between employment and injury under the special hazard rule of causation

APPLICATION in CUBBY: Unlike typical fixed-situs employee, Cubby riggers did not know the location of future assignments, and it was impossible to fix their commute in relation to these remote work sites

HOLDING: fixed situs employees are entitled to workers’ compensation benefits for injuries while coming and going from or to his place of employment where the travel serves a function of the employer’s business and creates a risk that is distinctive in nature from or quantitatively greater than risks common to the public

When applying the Lord test the enumerated factors are not intended to be exhaustive and the totality of the circumstance may continue to evolve

Workers compensation cases are to a large extent very fact specific

As such no one test or analysis can be said to apply to each and every factual possibility

MTD Prods., Inc., 61 Ohio.St.3d 66, 1991

Exceptions to the fixed-situs “Going and Coming” rule:

        1.  injury occurred within the “zone of employment”
        2. injury was sustained because of a “special hazard” created by the employment
        3. the “totality of the circumstances” surrounding the accident creates a causal connection between the injury and the employment

Lord v. Daughtery, 61 Ohio St.2d 441, 1981

“Totality of the Circumstances Test”

1.) Proximity of the scene of the accident to the place of employment

2.) degree of control the employer had over the scene of the accident

3.) benefit the employer received from the injured employee’s presence at the scene of the accident

Lippolt, 2008-Ohio-5070, Tenth District

Facts: claimant was regional manager, job required him to visit stores selling employers products. On the road. Was injured walking in the parking lot of motel. Found that totality of circumstances

“Traveling Employee” Doctrine

Persons employed as salesmen, servicemen, or insurance adjusters have no fixed place of employment, their place of employment is the area they service, the very nature of their employment requires them to go from place to place over the public highways, and the traveling to each place to work is necessarily in the course of their employment

Personal Errand

“an employee remains in the course of employment when traveling in connection with her or her employment except when the employee is on a personal errand”

Page 5: Ohio S. Ct has recognized that an employee’s commute to a fixed work site normally bears no meaningful relationship to his employment contract and serves no purposes of the employer’s business,

The general rule does not apply to an employee who travels to the premises owned by the employer’s customer -Ruckman — >this applies to the Arising Out of Component

Cossin, 2012-Ohio-5664, Tenth District: “When the nature of an employee’s work requires him to travel from place to place, he is not a fixed-situs employee.”

To the extent claimant had a “place of employment” that place was in the homes of potential customers the company assigned him to visit and on the roads he was obligated by his employment to traverse to arrive at and return from those home

He was not on a personal errand that cause him to detour from that direct route, nor was he engaged in an activity that was a “highly personal act”

Ex. slipping on the bathroom floor of his hotel room after taking a shower

OSHS benefited from claimant’s presence on public roads and highways

Its business was dependent upon in-person examinations of the basements of potential customers

Those examinations could only be performed by employees who traveled to them

Bonedry Waterproofing, 2016-Ohio-3341, tenth District

      • Facts: Day off, had brother with him, went to job headquarters to pick up paycheck
      • Employer told claimant that there were three jobs for him, claimant drove back home to pick up paintbrushes, got in an accident on the way
      • Did not need to store paint brushes at his house, only did so for his convenience, could have picked them up from the store and been re-imbursed or driven to bone dry to pick up paintbrushes
      • Storing paint brushes at his home was not part of his “substantial employment duties” when examining the employees duties as a whole , he commences his substantial employment duties only when he arrives at the job site
      • Dissent felt that trial erred in granting summary judgment, a trier of fact could determine that claimant could be determined to not be found a fixed-situs employee
      • Furthermore, even if fixed-situs, trier of fact could determine that consistent with ruckman traveling to the premise of a customer of the employer generally serves a purpose of the employer’s business


Gwendolyn v. Cambridge Home Health Care, 2009-Ohio-2842, Firth District

Facts: home health aide, after visiting first patient’s house, head to house of second patient, stopped to pickup a sandwich, three miles from first patient’s house involved in MVA

-Found under totality of circumstances test not applicable

Employer exercised no control over scene of accident/employee’s presence at the scene of accident served no benefit to the employer


“while it is clear the employer had no control over the scene of the accident, it seems equally clear to me the employer the employer does benefit by the IW’s ability to travel from one client to another in the same workday

Claimant was injured in a pursuit or undertaking consistent with her contract of hire which in some logical manner pertains to or is incidental to her employment