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Ohio BWC: Work Injury: Dog Attack

When most folks think of dog bites, dog attacks they tend to focus on one legal cause of action, suing the owner or harborer of the dog for the physical injury that dog has caused. But what if you get attack or bit by a dog while working, how many causes of action would you have?

The answer may be two. The traditional lawsuit you would file against the owner, harborer of the dog; and a worker’s compensation claim against your employer.

Problem of Collectibility

I do not wish that anyone is hurt, either on the job or otherwise, but you may have a better legal result or claim if you are bit or attacked during the course of employment. Why? Collectibility. A problem that folks sometimes encounter with dog bite cases is that the person who owns the dog or is legally responsible for the dog has absolutely no assets. So you might legally have won the case, and the court may have entered a six-figure judgment against the dog owner, but if the dog owner has no money, then he/she has no money to collect. Why is that person allowed to own a dangerous animal when he cannot financially pay for the harm the dangerous animal causes? Good question, unfortunately its an all too common problem in Ohio.

Dog Attack During Course of Employment

Suppose you deliver packages for UPS or are a pizza delivery driver. You pull up to a house/apartment, walk up to the door, ring the doorbell, owner opens the door, dog jumps out bites you on the leg. In this case you would fall into the duel category situation, two legal causes of action: dog bite claim, and worker’s comp claim.

Under worker’s comp, as long as your claim was allowed, you may be entitled to have your medical bills paid for, and compensation paid for during the time you are physically unable to work. This claim would be assessed against your employer’s worker’s comp coverage.

Now if the dog bite owner was collectible, and you either prevailed at trial or settled the case, you would probably have to subrogate the BWC in terms of the medical bills that had already been paid out.

Goes Without Saying . . .

Because we are talking about dog bites, I present you with pug in a drawer. So cute, Cheers, Kip


Ohio BWC: Work Injury: Slip and Falls At Work

When I lived around San Francisco I’d take my son to this place in Half Moon Bay called the Fitzgerald Marine Reserve. It was my favorite place to visit because at low tide you could explore tide pools. I’d walk out there with my toddler son at the time and marvel at all the crazy creatures we could find: star fish, sea anemones, octupus, shore crab, chitons, nudibranch (basically weird colorful sea slugs), etc. One big hazard that existed was that is was slippery as all get out; fortunately neither my son or I slipped and fell.

Now I live in Ohio; what does it do in the winter in Ohio? It gets cold, it snows, ice forms, roads and side walks get slippery. Inevitably slips and falls happen. So the question you may have is: “if I slip at work is this a workers comp injury?”


First did it happen at work or an area under the control of your employer. If you slipped on ice in your employer’s parking lot, probably a work injury. More difficult scenario, employer doesn’t own the parking lot. Again how much control does your employer have over the lot. This scenario is ripe for arguments pro/con at an Industrial Commission hearing. Probably comes down to which hearing officer you get whether the parking lot is construed as under the control of your employer. If its found that the parking lot was not under the control of your employer, then it would not be a work injury. In which case, you might be able to file a personal injury complaint against the owners of the parking lot.

Second, did you slip and fall on ice, or did you just fall apropos of nothing. If you just fall without any exterior influence, this would be an idiopathic injury, and as such would unfortunately not be a work injury.

The next question that people have about slips and falls at work are, “my employer is negligent, he should have shoveled or salted the parking lot/side walk.” Might be negligence, but in the worker’s comp world basic run of the mill negligence is not considered. This works both ways, I’ll got to hearings and the employer will say something like, “Joe Blow was doing such and such wrong and that’s why he got hurt.” Fortunately Joe Blow will still have a work injury claim even if he was doing such and such task wrong/incorrectly/negligently.


Anyways, back to me and why I wrote this article. I like to cut across the grass in front of our office to go to and from the building. As I was leaving to go home I cut across the grass, slipped and landed on my side. So would I have a work injury:

1.) Was the injury site owned or under control of my employer? Yeah, the little evil grass hill is owned by Malek and Malek

2.) Was it an idiopathic fall or fall due to external means? Now my brother would say I had an idiot pathetic injury, but I fell due to slipping on the grass. So the fall was due to external means.

3.) Did I suffer an injury? No, I killed my shirt and pants, but thankfully I did not suffer an injury.


Please be safe these snowy and icey days. Watch where step. We get clients who have sustained serious head injuries from bonk their head on the ground. Its no joke when you slip and fall. If you have a question, concern, or comment please call or email the Work Injury Attorneys at Malek & Malek. We’ll try to help you and set you on the right path. Cheers, Kip Malek

Malek and Malek Wishes Every Family A Safe and Happy Holiday!

Hi Folks,

Please have a safe and happy holiday season. Pause and take a moment and be thankful for you and your family. Pray for those injured workers and their families who may be experiencing hardship because their husband or wife has had a work injury. I pray that you do not have a work injury, but if you do, that you recover and are able to return to gainful employment.

Sometimes its easy to lose sight of the fact that there are many folks in much more unfortunate circumstances than ourselves. And some of us are experiencing our own physical, emotional and/or financial hardship.

Malek and Malek has been proud to represent the Injured and Their Families in 2017 and we will continue the fight in 2018. Cheers, Kip


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

Ohio State Fair Tragedy: Who Is Liable

Malek and Malek wishes to express their deepest sympathies to the families involved and touched by the tragedy that occurred at the Ohio State Fair on July 26, 2017.

Jim Malek gave an interview regarding who may be liable for the tragedy on ABC Channel 6.

In regards to the accident he had this to say:

“As long as they follow the safety rules, and we don’t know that at this point in time, this accident should not have occurred”

A question was posed to Jim regarding the fact that the riders had signed waivers. Jim’s answer was that you expect that you may get hit by a foul ball at a baseball game but . . .

“Most people that ride a ride don’t assume under any circumstances that it’s going to fall apart in midair and cause serious injury and death”

Medco-14: Return To Work With Restrictions

Important distinction between being “temporary and totally disabled” and being “released to work with restrictions.”

If you are “temporary and totally disabled” you may be entitled to temporary total disability compensation.

If: 1.)  you have been released to work with restrictions and 2.) your employer offers you a “Written Light Duty Job Offer” 3.) and the light duty offered is compatible with the work restrictions listed on the Medco-14, you must take the offer.

Now if you go to work and you cannot do the work, do not unilaterally decide to work quit working, instead go to your doctor and have your doctor take you off work.


If you unilaterally stop working, you will not be entitled to compensation. If your doctor certifies you temporarily and totally disabled you may be entitled to compensation. Its that simple.

Workers Comp: Cordell aka Weed Case

Cordell v. Pallet Companies: The Weed Case

Recent Ohio Supreme Court case Cordell has implications for all those who test positive for marijuana (and other substances: alcohol/opiods/hallucinogens/etc) in a post accident drug screen. I discuss the case in detail in a short youtube video which you can view here.

The Rule from Cordell regarding testing positive for Marijuana is the following:

An injured worker may still be entitled to temporary total disability compensation when

(1) discovery of the dischargeable offense occurred because of the injury and

(2) the employee was medically incapable of returning to work  a result of the workplace injury at the time he/she was terminated

Continue reading Workers Comp: Cordell aka Weed Case

Personal Injury: The Importance of Evidence: Bus Crash



You must act fast collecting evidence after you have been personally injured. Evidence, particularly video evidence, can/will be destroyed. Often times evidences, such as video and photos, show who was at fault for the cause of the injury. Sometimes, this will incentivize the destruction of evidence by the wrongdoer in anticipation of a personal injury lawsuit. Other times, evidence is destroyed as part of the normal course of business, i.e. information on a video server may only be retained for x amount of weeks before deletion. Either way, the sooner you come to Malek & Malek, the more likely we can prevent the wrongdoer from destroying these vital information.

Case in point was a Bus Crash involving our client Rodney Matthews. Rodney Matthews was a passenger of a car which had run out of gas. The driver and Matthews were pushing the car on the side of the road, when a bus crashed into the back of the car. It was dark, and the bus driver claimed he did not see the car. Had there been no video evidence, this might have been the end of the story.

Fortunately there was video evidence of the interior of the bus, showing the driver glancing at something to his left eight times before crashing into the car, instantly killing the driver and grievously injuring our client Matthews.

You can see the video of the distracted bus driver here:



Video Evidence can be the thing that makes or breaks your personal injury claims along with attorney you chose to represent you.  Whether you are injured in a slip and fall, car accident, or a dog bite case, the attorneys at Malek & Malek are here to help you and your family get the compensation and medical care you deserve.

Author: Jake Stang

Personal Injury: Slip and Fall Injury Situations

Slip and fall injuries are some of the most common situations that our personal injury lawyers, and even our workers’ compensation lawyers, here at Malek and Malek come across. Slip and fall injuries account for over 40% of all spinal injuries and are often serious, affecting people for the rest of their lives. Here are a few things to keep in mind when dealing with a slip and fall case.

What does a typical slip and fall situation look like? In order to have a slip and fall claim you must be able to show that the property owner owed a duty to not cause injury to you, they breached this duty, and that the breach of the duty caused your injury. Breach of duty by the property owner in a slip and fall case almost always involves a hazardous condition and the failure to properly clean up this condition or to notify people of this condition. A hazardous condition can either be permanent (like a broken stair) or temporary (icy conditions or a puddle of water on the floor). This hazardous condition must have caused the slip and the injury must be the proximate result of this. A good example of this is when an owner of a restaurant allows a walkway to become icy (temporary hazardous condition), fails to properly make the walkway safe for customers (breach of duty), and someone slips and falls on the icy walkway which causes a back injury (breach of the duty was the cause of the injury).

The theory of negligence is important to keep in mind while pursuing a slip and fall claim. Negligence establishes who was at fault for your injuries and to what extent each party is responsible for damages. Negligence is when someone fails to use reasonable care and that failure results in an injury. A property owner will be found negligent if they failed to notify people about the potential slip and fall risk, this includes posting a sign about the risk or actually telling the person about a risk. Negligence can be proven through evidence of what the building was like at the time of the accident which includes witnesses, photos/videos of the site of the accident, and/or things that show weather verification (if it was caused by snow, rain, or ice). This theory can also be used against the injured person in what is called comparative negligence. Through this, the judge compares the negligence of the all the parties involved. In Ohio if a person is found to be more negligent in causing their injuries than the property owner then they cannot recover from the owner or the property, but if not then the amount you can recover will be reduced in direct proportion to the extent that you are at fault. Negligence is very important in slip and fall cases because it can be used by and against you.

The location is very important in a slip and fall claim because it determines who is liable and what kind of claims that can be pursued. If a person slips and falls while on private property, not their own property, then there is a possibility that the owner of the property is liable for the injuries. Another important thing about the location is that if this injury occurred while at work then you may have both a personal injury claim and a work injury claim. Location of the accident also affects what type of benefits you may be able to recover for your injuries. For slip and fall injuries that occur on private property outside of employment you are eligible to receive medical benefits such as hospital bills, physical therapy, and help to pay for medication. For an incident that occurs at the workplace, you may be eligible to also receive benefits which include lost wage benefits, and can include temporary disability benefits, permanent partial disability benefits or permanent total disability benefits.

The last important thing to keep in mind when you are injured as a result of a slip and fall accident is your friends at Malek & Malek. Our lawyers are very familiar with these types of injuries and we will get you the maximum compensation for your claim.