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Workers Comp: How to Testify in a Hearing

INDUSTRIAL COMMISSION HEARINGS

As an attorney I go to multiple hearings nearly everyday at the Industrial Commission. The majority of the issues at these hearings involve either the allowance of the claim, an additional condition, or treatment/medication. At the hearing there will either be a District Hearing officer(if it is the first hearing or a Staff Hearing Office. Your attorney will be at the hearing, and either an attorney or third party administrator will be present on behalf of the employer.

I think the tendency for the injured worker at these hearings is to feel as if they are  “guilty” or that they have done something wrong. Let me tell you that you have not done anything wrong. You did not choose to become injured, what happened happened. Therefore when I or your attorney asks to describe how you got hurt, please describe how you were hurt in a matter of fact, understated manner.

Exaggerating or overstating how you were injured will not add spice to your testimony. You want to be consistent in how you describe the manner in which you were injured. So if your injury involved lifting a box in one singular event, you do not want to then qualify that you had pain for months. Inconsistency will kill your claim.

What you must never do at a hearing is lie. Never, ever lie at a hearing. The hearing officers have heard thousands of individuals testify at hearings. Their lie detecting skills are sharpened to an almost supernatural degree. If you lie, your claim will be denied.

At the Industrial Commission hearing tell the truth, be consistent, testify in a matter-of-fact manner. If the facts are on your side, you will have a good chance your claim will be allowed, or your comp will be granted, or your treatment will be authorized.

“I WENT TO MY INITIAL ALLOWANCE HEARING WITHOUT HIRING AN ATTORNEY”

A thing that we encounter all too often is an injured worker who went to a hearing without either hiring an attorney or at the very least consulting one. Most people likely will never have had a work injury in their life. This whole BWC thing is new and bewildering. I think the misconception is that all you have to do is file a claim and then your claim will be allowed. But then the claim is not allowed. I think this topic merits multiple articles so I’m only going to address one here and now. But its a doozy.

No causal connection between the mechanism of injury and condition caused by that injury. What do I mean. When you go to an initial allowance hearing you will be asking that your work injury be allowed. And you are not just asking that “hey I was injured on December 1”, you are asking “I was injured on December 1, and I want my claim to be allowed for a lower back injury, specifically a lumbar sprain.”

Let me illustrate with an example. So assume on December 1, 2018 I was lifting boxes onto a conveyer belt. As I was lifting box number #200 I felt a sharp pain in my lower back. I finished out my shift. I went home, iced my lower back, took ibuprofen. The next day I called off sick and went to urgent care. At urgent care the attending doctor did an exam of my lower back. He poked, prodded, and had me do some different movements. He also took a history, basically a description of how I injured my back. Based upon his history and exam, he diagnosed me with a lumbar sprain.

To you and me, it seems pretty that the lifting of box #200 caused my lumbar sprain. The BWC will likely do a physician file review, and that physician may also connect the dots. But if the file review does not connect the dots, you will need a doctor to explicitly say and explain “the lumbar sprain was directly caused by Kip lifting box #200 at work, lifting a box from the ground in the manner described by Kip would likely result in a lumbar sprain.”

This is a pretty simple example. Frankly the BWC physician file review would probably find the connection for us. But I see problems arise where the mechanism of injury is not described or documented well in the initial ER or Urgent Care records, or the mechanism of injury described in one document is different from another document. In these cases we would likely go to the injured workers BWC doctor, present the various pieces of information, and ask the BWC doctor to express his expert medical opinion. The employer or BWC may have their own doctor’s expert medical opinion which contradicts our own, but without our doctor’s opinion connecting the mechanism of injury to the diagnosed conditions, the hearing is already lost before it begins.

Even if you are the nicest, most compelling, hardest working injured worker, and you bring the hearing officer to tears during your hearing, if you still do not have a connection between the mechanism of injury and the diagnosed condition, the hearing officer will have no other option but to deny your claim.

You receive the industrial commission order in the mail denying your claim. You freak out, and you decide to then get an attorney. Your attorney then has to scramble to communicate with your BWC doctors to get the supporting documentation.

So as always if you have a work injury and you are not sure what to do, call a workers comp attorney at Malek & Malek. We offer a free consultation, we would love to talk with you.

Ohio Dog Bite Laws, Includes Other Harms Caused By Dogs

Ohio Dog Bite Laws Provides relief Not Just for Dog Bites but Other Harms caused By Dogs

Most people love dogs and what’s not to love: they’re cute, fluffy, and loyal. They’re our friends and our children. But dogs are animals which were domesticated by our ancestors through thousands of years. Yet through all this time dogs still retain instincts that were used to survive by their wild forebears. Its these residual instincts that often give rise to dog bites, and dog attacks.

So in Ohio what happens when a dog harms you or your loved one. And I use the word harm on purpose. A dog can cause injury or harm in other manners beyond simply biting or mauling someone. As a kid our family consecutively had three golden retrievers: Major, Raider, and Bailey. One dog would die and we would get another dog. Oddly the dogs became nice, and friendlier from one dog to the next, whereby Bailey was possibly the nicest, friendliest dog one could encounter.

Examples of Harms Not Involving a Dog Bite or Attack

That being said Bailey loved to jump on to people. It was a nefarious mean attack thing, it was “hey guys I’m so darn excited to see you, I’m going crazy to meet, let me slobber on your face, YEAHH!!” He was super friendly this way. If he jumped on a healthy adult, great, no problem, unless he’s got muddy paws then it sucks. But imagine if he jumped on our grandma who was about as infirm as one could get. It could be devastating if she were to fall and break her hip. Could be a death sentence.

So instead of a traditional, stereotypical mauling by a pitbull, we have a super friendly golden retriever causing the death of an elderly grandma by way of an overly enthusiastic hello.

Another example of harm not involving a dog bite, imagine your eight year-old son or daughter is biking on the sidewalk to his/her friends house down the block. Half-way to the their friends house they pass the fancy house with the two-car garage. Racing down the drive is a land shark, a ferocious poodle. Your child either frightened or trying to avoid the doggy, veers to the left, goes into the grass, looses control the bike and crashes. Now the poodle is no one’s image of a “dog bite dog” but he still caused harm, i.e. he chased after the bike which approximately lead to your kid break his arm.

Jim Malek goes into more detail about the specific laws and statutes which you may be able to recover for your dog bite in a video found by clicking the image below:

 

jim malek explaining dog harms
Jim explains Dog Harms

 

 

Slipping and Falling, Work Injury?

Winter Blues, No Palm Trees

Hello, I put a pic of palm trees as the head image because, we are in Ohio and its freezing out. For me growing up in Ohio, seeing Palm trees was always this exotic thing. Indication to me that I was someplace “warm.” As a kid we’d always take these trips every summer to Florida. We didn’t fly, we drove. So to me the first indication that we were finally in Florida were the first palm trees.

Later in life I moved to Northern California. And I always thought “I am living someplace with palm trees, I’ve arrived.” Then I moved back to Ohio. Until global warming catches up, burns the rest of the world, and turns Ohio into a tropical paradise on the Great Lakes, I have to settle for pictures of palm trees.

I’m a workers comp attorney not a landscape designer ( I did work as a character artist in my former life ) , so you’re reading for info about Ohio work injury claims, not about palm trees. So its Winter 2019, yeah its cold! As a human being and a worker in Ohio what is the big thing we have to worry about in the winter? Slipping on ice and landing on our sassafras.

Slip and Fall Work Injuries During the Winter

Okay so if you slip on snow or ice at work is this a work injury? You might think, “hey I clocked out for the day and slipped in the parking lot next to my work, surely this is not a compensable work injury?” Oh but it is my friend. Lets break it down.

Okay, first even if you are not clocked in at work, are you walking to work, or walking from work. Are you at or in the vicinity of work for the benefit of your employer. If you’re walking to your place of employment to work, whether that’s an Amazon warehouse, or a construction site, or a law office, you are doing so to the benefit of your employer. Does not matter whether or not you have clocked in.

Now is the sidewalk or parking lot you have slipped on either owned or under the manner or means of control of your employer? For example, we do not own the parking lot next to our office. However we pay money to use the parking lot. So we don’t own it, but to the extent that we pay rent to use it, if I or one of my fellow employees slips and falls on the ice and sustains an injury I would have a workers comp claim. We don’t own it, but we pay rent, that money is used to plow the snow on the parking lot and keep it lit etc. If we see a problem, we talk to the person who does own the parking lot. He fixes whatever we are asking about.

Now if one of our employees for whatever reason decides to park in the dry cleaners parking lot. We neither own that or have any control over that parking lot. We do not direct our to park in that parking lot. So if one of our employees, parked there, slipped in that parking lot, sustained an injury, no workers comp claim.

Simple rule of thumb, is if the parking lot is geographical next to , or close to your place of business. And if that is the place where your fellow employees park, then that parking lot is probably either owned or under the manner and means of your employer.

Pretty simple, pretty straight forward.

Be careful, watch where you step, don’t slip on the ice, come to workers comp attorneys at  Malek & Malek we’ll help you get compensation and medical bills paid for your work injury.

-Kip

 

 

Even a Family Dog Can Commit a Dog Bite

A dog can be a great pet but always be vigilant especially around children. Its pretty scary when you search for ohio dog bite or ohio dog attack and you get a bunch of news hits involving children. If you or your loved one is the victim of a dog bite or dog attack, please contact the aggressive, compassionate attorneys at Malek & Malek.

I had three golden retrievers growing up as a child: Major, Raider, and Bailey. A Golden retriever is a notoriously family friendly dog however despite that our dogs still had their bad sides. For example Bailey was probably the most friendly, gentle of the three goldens. I tend to think if you can muck about with a dog’s food bowl without that dog growling, you have a disciplined, gentle dog. And Bailey you could take the food bowl, you could push him away from the food bowl, etc, he would not bite you.

But god forbid you prevent Bailey from getting leftover bones from someone’s trash.  He would growl, he would snap, he would get mean. Fortunately he never bit me. I actually think he may have bit my older brother Jim at one time. Anyways Bailey would get to the thrown out bones, and unfortunately those bones would act as a super laxative for Bailey. A lot of gross cleans up would ensue.

Child bitten by dog while playing catch with a friend:

https://www.kxan.com/news/local/austin/child-in-hospital-after-cedar-park-dog-bites/1630224933

Dog injury involving a 4 year old child in Cincinnati:

https://www.wcpo.com/news/local-news/hamilton-county/cincinnati/dog-attack-leaves-4-year-old-boy-with-60-stitches-and-his-mother-with-mounting-medical-bills

https://www.fox19.com/2018/10/12/pitbullboxer-mix-be-put-down-after-biting-year-old-norwood-boy/

Yikes! Ohio Ranks Third in Dog Bite Claims

https://www.10tv.com/article/study-ohio-ranks-third-dog-bite-claims

Six year old boy in Dayton almost lost his eye in dog bite incident:

https://www.springfieldnewssun.com/news/son-could-have-lost-his-eye-boy-recovering-after-dog-attack-springfield/VVczegNj7SZ83wC7SyvReM/

Dog involved in four attacks:

https://www.wcpo.com/news/local-news/i-team/i-team-owner-charged-4-times-in-14-months-for-loose-dog-accused-of-biting-neighbor-other-dog

A Serious Work Injury Happens In an Instance

Take Stock of Your Blessings in the New Year

Malek & Malek is a family owned and run law firm representing those who have suffered a serious work injury or death. Our father and my two brothers: Ed, Jim and Doug. Working in and running a law firm can sometimes be stressful, but is rarely if ever dangerous. Accidents can happen anywhere, but likely the worst thing that may happen at our office is I or someone here takes a tumble down the stairs.

However we represent injured workers here in Columbus and around Ohio. We have folks who come in who have had a serious work injury. These are injuries that change lives, that knock people out of careers or out of employment forever. Some of these folks are single income families, now they must get paid by the Ohio workers comp system.

This year I’ve had the unfortunate opportunity to speak with the loved ones of those who have died on the job. None of these folks who were injured or died on the job thought it would happen to them. Everything was going well, plans were made, vehicles were bought, apartment rent/house payments were being made. Then a loved falls off of a ladder, a limb gets smashed in a factory machine, a furnace explodes. Just do a search on google for work injury and OSHA investigations.

If you or your loved one suffers a serious work injury or death on the job Malek & Malek will help you but please let us pray that no one suffers a work injury, or no one’s son, daughter, father, mother, cousin dies. In this New Year, when everything is going great, or maybe not going great, but not going terrible, pause, reflect, and let us count our blessings. Give your son, daughter, husband, wife, brother, sister, mother, father a hug.

Also as always please be safe on New Year’s Eve. Be safe on the roads, let us have no car accidents resulting in a serious injury. Be boring, stay in, play some video games, read a book.

Godbless – Kip

 

Malek & Malek Law Firm, 1227 S High St, Columbus 43206 - Phone: 614-444-7440 Fax: 614-444-8836 Email: kip@maleklawfirm.com

Have a Safe and Happy Thanksgiving

Malek & Malek Thanksgiving

Hello, Thanksgiving is coming up in two days. The extended Malek & Malek family will be convening at Doug’s house this year. I have seven brothers and sisters. I work with two of them, Jim and Doug. Sometimes our family gatherings can resemble the Griswolds from National Lampoon Family Vacation. You get an explosive mix of personalities and it can get interesting.

One of my favorite and more humorous memories is not from Thanksgiving, but rather I think we were celebrating my grandmother’s birthday. Anyways my mom, in her infinite wisdom, choose to celebrate this birthday at Buca De Beppo’s. If anyone has been to this restaurant its famous for “family style” meals, aka chaos. Basically instead of say 10-20 people ordering 10-20 individual meals, you order a few big entrees. The idea is everyone shares.

So we order chicken parmigiana, stuffed mushrooms, italian sausage, and spaghetti and meatballs. At this dinner are my two sisters and their kids who at the time were toddlers. So the food eventually gets to the table, everybody is clamoring to get their share of the food. It was getting testy, and my sister worried that her son would go hungry, yells “pass the f#&@()&# meatballs!” So we did, and he got his f*(^&^^&#) meatballs.

Drunksgiving Eve

Irregardless Thanksgiving at our house can be fun, and chaotic. But the reason I’m posting this is apparently the Thanksgiving Eve is so well known for drinking that it has earned the sobriquet Drunksgiving or Blackout Wednesday. I had never heard this before. But apparently people in returning back to their hometowns for Thanksgiving meet friends, and family the night before. They go out drinking. People are “saving” space in their tummies for turkey and mash potatoes, so they don’t eat that much. Sales of alcohol have been shown to increase by 23 percent.

With increased drinking comes increased drunk driving. More accidents, more hospital visits, etc. So  I guess maybe avoid driving on Drunksgiving? If you do and you get hit by a drunk driver on Thanksgiving or Thanksgiving Eve and the accident involves more than a fender bender, please give us a call.  Malek & Malek will compassionately, and aggressively strive to get your medical bills paid, and the compensation you deserve for your car accident. Please have a safe and happy Thanksgiving, and don’t forget to “pass the f*(*&#@&) turkey!”

Workers Comp: Seasonal Work

Work Injuries and Seasonal Jobs

I posted about seasonal jobs last year, but it bears repeating. This is the time of year that stores and various types of warehouse jobs hire temporary workers. People work overtime, six-seven days a week to make some extra holiday money, or just supplement their yearly income. Inevitably some temp workers get hurt.

When I was in at Purdue University I got a temp job at Cheryl’s Cookies in Westerville, Ohio during our Christmas break. I would pack various gift boxes with cookies. It wasn’t a particularly hard job. We got free cookies. A funny thing happened working there. We had to sign a little card indicating who had made the gift box.

Some temp worker had signed the card as “this package was made by Inmate #45921.” I didn’t do it, but come on its kinda funny. Anyways I recall whomever did it got fired; I do not condone things that will get you fired.

Temp Employee, Injured, You May Have a Claim

The likelihood of me being injured at Cheryl’s Cookies was very low. But had I gotten injured I would have a worker’s comp claim. Even though I was only a temp worker and the job would have ended in less than a month.

So please, let no one get injured at their temp job, but if you do, remember you can file a claim. It doesn’t matter if you worked only one hour or three weeks.

Doug, Ben, and I have taken many hearings involving injured temp workers. If you’re injured come to Malek & Malek for compassionate, aggressive legal representation for your work injury. We’ve been in business since 1972 protecting the injured and their families in Ohio.

Dog Bite: Who Pays

Malek & Malek aggressively represents people who have been bitten by a dog. Anecdotally a great deal of the most seriously injured happen to be children. These dog bites can leave not only physical scars but mental scars that last long after the injury has healed.

A common refrain we will hear from dog owners is that a child antagonized the dog causing the dog bite. Under Ohio law children are essentially not responsible for their negligent acts. So bottomline is that if you have a dog, and this dog is around children a dog bite can occur.

Who pays? The home owner will pay. If you rent an apartment, the landlord will pay. What will happen to the dog? It can be put down.

Are some dogs more prone to bite than others? There are certainly some dog breeds that have a greater reputation for violence. However even “friendly” dog breeds are capable of committing a dog bite. As a kid growing up our family had three golden retrievers: Major, Raider and our last golden, Bailey. Bailey was super friendly, you could take his food bowl and he would not growl. However if he smelled a bone in someone’s garbage he would become a demon dog. Could he have bit me at these times, absolutely.

With 4.7 million dog bites occurring each year. If you have a dog, please take care around children. You might also look into supplemental dog insurance.

Ohio BWC: I’ve got injured, quit my job, and move to another state do I still get compensation?

Klein v. Precision Excavating:

The short answer is no. In Klein the injured worker was certified temporarily and totally disabled by his doctor. Prior to his work injury he was thinking about quitting and moving to Florida. Unfortunately life likes to throw curve balls. And he got injured at work. A couple of weeks after his work injury, he in fact moved to Florida. The injured worker requested temporary total compensation. The Industrial Commission award temporary total only up the date right before he left to Florida.

Injured worker appealled to the 10th District Court of Appeals. The Court of Appeals said “hey if you had a work injury and were unable to work at the time you moved, then you get money.” Employer appealed to the Ohio Supreme Court. Ohio Supreme Court said, “nah, even though case law says that you should get money, we’re saying you shouldn’t so you don’t get money. Hey man, even though you were unable to work at the time you moved, and maybe you are still injured has no bearing to why you are no longer worker at Precision Excavating. You VOLUNTARILY ABANDONED the workforce. Your leaving the job had no connection to the work injury”

Here’s the thing, it is true. The injured worker was planning on leaving prior to his work injury. But he got injured. Case law that was previously followed basically said that if you were unable to do the essential functions of your job at the time of the event that separated you from your job then you cannot be found to have VOLUNTARILY ABDANDONED your job because you had already INVOLUNTARILY ABANDONED your job.

Anyways. Not the case now. So if  you quit or resign after a work injury, even though you are certified temporarily and totally disabled, you may be found to have voluntarily abandoned your job and not be entitled to compensation.

Happy Halloween!!

Halloween is one of my favorite holidays. Its fun to decorate the pumpkins and the yard. There are visits to pumpkin patches, Halloween costume pop-up stores, and haunted houses. I remember when I was living in the Bay Area there was a small town called Half-Moon Bay. Half-Moon Bay was a small fishing town south of San Francisco. There was also a lot of little farms in that area as well. Each October there would be the Half-Moon Bay Pumpkin Festival. It was fun to take my son at the time when he was a toddler.

Unlike California, Halloween in Ohio tends to mark the transition from mild Fall into colder weather(granted in the Bay Area it gets cooler, but 50-60 in December and January doesn’t compare to Ohio in December and January). Sometimes Halloween can be warm, sometimes it can be unpleasant and chilly. Irregardless the kids still have to get out there to get that candy!!! I believe this will be the last Halloween my son trick-or-treats. Its weird how fast times goes. I remember his first couple of Halloweens when he was a baby and had no concept of what trick-or-treating was.

Then when he became a toddler, at first he would be suspicious of these strangers handing out candy. Later he would enthusiastically run up driveways and ring the doorbell. Now he’s trick or treating with his friends. Leaving me at home to cry in my soup (or work on hearings). The great thing about Halloween, no matter how young or old, its still fun, and there are still things you can do to participate and enjoy Halloween.

Landlord Duty Of Care

Anyways, this is a lawfirm’s website so each post has to veer back around to some legal concept. So what legal issue or concept is implicated by Halloween? Well, here goes, if you rent your apartment or home, then you landlord owes you a duty of care to maintain the property so as to avoid injuries to both yourself and your guests, including little kids who are trick-or-treating.

Therefore if there is something that needs repaired at your home or apartment, like a loose handrail, or a rotting front porch, let your landlord know so he can fix it. If he does not and you or your guests sustain an injury, you may be entitled to compensation and/or payment of your medical bills.

As always if you or your family have suffered a serious injury, please call an attorney at Malek & Malek. We have been protecting families since 1972.

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