NEWS & RESOURCES

Archives: News

यदि तपाईलाई काममा चोट लागेको छ भने पहिलो कदम चाल्नु

ओहायोमा कामको सिलसिलामा हालसालै तपाईलाई चोटपटक लागेको छ भने यो पोष्ट पढ्नुहोस्

नमस्ते, मालेक र मालेक ओहियोमा घाइते कामदारहरूको प्रतिनिधित्व गर्नमा गर्व गर्दछन्। सुरुमा तपाई काममा घाइते हुँदा के गर्ने भनेर अलमल्लमा पर्न सक्नुहुन्छ। यहाँ केहि आधारभूत चरणहरू छन् जुन तपाईले सुरू गर्न सक्नुहुन्छ।

१) तपाईलाई चोट लागेको छ भनेर आफ्नो  सुपरभाईजर वा प्रबन्धक वा नेतृत्वलाई जानकारी गराउनुहोस् ।

२) मेडिकल सहयोग लिनुहोस्

३) मेडिकल सेवा प्रदायकलाई तपाईलाई कामको सिलसिलामा चोट लागेको छ भनी भन्नुहोस् र जे भएको थियो, त्यसको स्पष्ट विवरण दिनुहोस्

४) यदी तपाई काममा फर्कन सक्षम हुनु हुन्न भने, आफ्नो सुपरभाईजर र मानव श्रोत व्यवस्थापनलाई सम्पर्क गरी तपाई काममा फर्कन नसक्ने कुरा जानकारी गराउनुहोस् । यदी तपाईले जानकारी गराउनु भएन भने, तपाईले कार्यक्षेत्रको नीति “no call, no show” उल्लंघन गर्नुभएको मानी निष्काशित हुन सक्नु हुनेछ ।

यो मानौं यो जीवन जोखिममा पर्ने आपतकाल होइन, पहिले तपाईको सुपरवाइजरलाई तपाईको चोटपटकको बारेमा बताउनुहोस्। एक दुर्घटना फारम भर्नुहोस्। तपाईको सुपरभाइजरलाई सोध्नुहोस् कि फार्म पनि भर्नुहोस्। यदि यस दुर्घटनामा साक्षी छन् भने, तिनीहरूलाई साक्षी बयान भर्न भन्नुहोस्।

अर्को चरणमा मेडिकल उपचार गराउनुपर्नेछ । पुनः तपाईले यो ज्यानै जाने ईमरजेन्सी होईन भनी ठानेर ईमरजेन्सीमा नगई एक निश्चित रकम लिने कुनै आकस्मिक हेरचाह गर्ने वा वाक-ईन क्लिनिकमा मात्र जाने निर्णय गर्न सक्नु हुनेछ । तपाई किन त्यसो गर्न चाहनु हुन्छ ? यदी तपाईले कामदारको क्षतिपूर्ति दावी गर्न पाउनुहुन्छ भने, ईमरजेन्सी चार्ज तपाईको कामदारको क्षतिपूर्ति दावी अन्तर्गत पेश गरिनेछ । यदी त्यो नभए, तपाईले ईमरजेन्सीको बिल भुक्तान गर्नु पर्ने हुन्छ । ईमरजेन्सीमा उपचार गराए बापत हजार डलर तिर्नु पर्ने भन्दा १-२ सय डलर खर्चेर कुनै आकस्मिक हेरचाह गर्ने वा वाक-ईन क्लिनिकमै जानु राम्रो होला । तपाई आफ्नो प्राथमिक हेरचाह चिकित्सक कहाँ जान पनि सक्नु हुन्छ । यदि यो जीवन वा मृत्यु आपतकालीन हो ER मा जानुहोस्।

यस सुरूवाती मेडिकल भिजिटको सम्पूर्ण उद्देश्य तपाईको घाउचोटको उपचार गराउन तथा तपाईको कार्यक्षेत्रमा भएको चोटपटक र घाईते भएको शरीरको अंगको अभिलेखिकरणको लागी हो । ताकि, जब तपाई ईमरजेन्सी/ आकस्मिक हेरचाह /वाक-ईन क्लिनिक  वा प्राथमिक सेवा चिकित्सक कहाँ जानुहुनेछ, उहाँहरुले तपाईलाई कामको सिलसिलामा लागेको चोटबारे स्पष्ट जानकारी दिन सकुन् । साथै उहाँहरुलाई स्पष्ट संग बताउनुहोस् कि, तपाई कसरी घाईते हुनुभएको थियो । यदी तपाईलाई अंग्रेजी बोल्न गाह्रो छ भने, कुनै आफन्त वा साथीलाई तपाईको लागी अनुवाद गर्न लगाउनुहोस् । स्वास्थ सेवा प्रदायकहरुले तपाईको चोटपटक सम्बन्धी सही विवरण अभिलेख गर्नु महत्वपूर्ण हुन्छ । कामदारको क्षतिपूर्ति दावी गर्नका लागी यी अभिलेखिकरण नै सबथोक हुन् ।

तपाईले FIRST REPORT OF INJURY फारम वा FROI-1 पेश गर्न चहानुहुनेछ । सामान्यतय यदी तपाई ईमरजेन्सी वा अकस्मिक हेरचाहमा जानु भएको खण्डमा उनीहरुले तपाईको चोट कामसंग सम्बन्धित हो कि होईन भनेर सोध्नेछन् । यदी यो चोट कामसंग सम्बन्धित हो भने, उनीहरुले FROI-1 फारम भरेर BWC मा पठाउनेछन् । यसले BWC दाबी प्रकृया सुरु गर्नेछ । तपाईले FROI-1 फारम आफैले भरेर मेडिकल सेवा प्रदायकको हस्ताक्षर तथा मिति बिना पनि पेश गर्न सक्नुहुनेछ, तथापि, तपाईको चोट वा चोट लागेको शरीरको अंगहरु मेडिकल सेवा प्रदायकले कामको सिलसिलामा लागेको चोट हुन् भनी सम्बन्धित गराएको हुनुपर्छ ।

अन्ततः ईमरजेन्सी वा अकस्मिक हेरचाहले तपाईलाई दुई वा तीन दिनका लागी वर्क एक्सक्युज स्लिप (work excuse slip) दिन सक्नेछ । यदी तपाई दुई वा तीन दिन भित्र काममा फर्कन सक्नु हुन्न भने तपाईले कामदारको क्षतिपूर्ति सम्बन्धी डाक्टरलाई लामो समय सम्मको लागी छुट्टीका लागी लेख्न लगाउनुपर्ने हुन्छ । यो अत्यन्तै महत्वपूर्ण हुन्छ कि, तपाई काममा जान नसकेको दिन आफ्नो रोजगारदातालाई “म घाईते भएको कारण भोली काममा जान सक्दिन” भनी सम्पर्क गर्नुहोस् । यो तपाईले दैनिक गर्नु पर्नेछ । यदी तपाईले गर्नु भएन भने, तपाईको रोजगारदाताले “no call, no show” नीति अन्तर्गत तपाईलाई कामबाट निकालिदिन सक्नेछ । तपाई बिरामी हुनुहुन्छ वा काम गर्न सक्नु हुन्न भनरे तपाईको रोजगारदातालाई थाहा छ भनी कहिले पनि नसोच्नुहोला

 

यदी कार्य क्षेत्रमा लागेको तपाईको चोट सानो काटेको वा घाउ भन्दा अधिक छ भने, म तपाईलाई मालेक र मालेक का कामदार क्षतिपूर्ति सम्बन्धी वकीललाई निःशुल्क परामर्शका लागी १-६१४-४४४-७४४० वा ईमेल kip@maleklawfirm.com मा  सम्पर्क गर्न सल्लाह दिन्छु ।

Changes to Voluntary Abandonment in House Bill 81

Voluntary Abandonment and House Bill 81

Governor Dewine has signed House Bill 81 this past Tuesday, June 16, 2020. It is effective in 90 days (approximately September 14, 2020). The bill is available to read here. So injuries that happen after the date the changes go into effect will be subject to the new changes.

Why am I posting about a house bill. Doesn’t the Ohio legislature release new laws and changes to laws all the time. The reason are two changes made to the Ohio Revised code which may have significant impact on your Ohio Workers’ Comp claim. Specifically 4121.471 and 4123.52(F).

 

Less time to file a VSSR claim

 

Under  the updated 4121.471, you will now only have a year within which to file an application for a VSSR award. VSSR being a “violation of a specific safety requirement.” Previously you had two years within which you could file a VSSR. Not really sure the rational for reducing the time to file from two years to one year. Anytime you reduce the amount of time an injured worker can do something, I don’t feel its a good thing for the injured workers.

The magical math to calculate the VSSR award is the following: the max comp rate for the year of the violation multiplied by the number of weeks of compensation already paid in the claim multiplied by the percentage of the award. So if you had two years within which to file a VSSR award, the number of weeks of compensation that could have been in the calculation was approximately 104 (52 weeks in a year times 2). Now it will be limited to approximately 52 weeks.

Part of the rational behind the VSSR award is to penalize the employer. That is accomplished because the employer is on the hook for the VSSR award. This incentives the employer to correct their unsafe practices.  Now, the employer’s monetary penalty can therefore potentially be much less. Less incentive to change.

The injured workers potential amount of compensation they may receive through the vssr award may be much less. Again not a fan of this change.

 

Removal of Judicially created doctrine of Voluntary Abandonment

 

4123.52 (F) is read as follows:

If an employee is unable to work or suffers a wage loss as the direct result of an impairment arising from an injury or occupational disease, the employee is entitled to receive compensation under this section, provided the employee is otherwise qualified. If an employee is not working or has suffered a wage loss as the direct result of reasons unrelated to the allowed injury or occupational disease, the employee is not eligible to receive compensation under this section. It is the intent of the general assembly to supersede any previous judicial decision that applied the doctrine of voluntary abandonment to a claim brought under this section.

I’m not sure how this change to the revised code changes anything. I’ve created a number of articles and videos about voluntary abandonment including a discussion of a more recent case Klein v. Precision Excavating. In a nutshell, the voluntary abandonment doctrine is something along the following lines, if after you are injured you do some act that causes you to be terminated, This act severs your entitlement to compensation (temporary total disability and possibly permanent total disability). Your voluntary act removed you from the workplace, not your work injury. In order to qualify for temporary total disability compensation your work injury must have removed you from the workplace.

So the sequence of events goes like this. You get injured, you get certified as temporary totally disabled by a doc, you may be entitled to ttd comp. With voluntary abandonment, you get injured, you do some act after the injury occurred that causes you to be terminated, regardless of whether or not you are certified temporarily and totally disabled by a doc, you ARE NOT entitled to ttd comp. You “voluntarily abandoned” workplace. Some examples of voluntary abandonment include getting fired because you cursed out your boss, you resigned or quit from your job, you violated a “no show, no call” policy whereby you didn’t show up at work or call in sick.

 

Effects of the Changes

 

The newly revised code section wipes the slate clean as to voluntary abandonment, it supersedes any previous judicial decision. But is that really how this thing is going to work out. To me it seems to codify the voluntary abandonment doctrine. Are Ohio courts going to walk back from relying on decisions from cases like Klein v. Precision Excavating, or are they going to make the same judicial decisions, which will then be set in stone by the Ohio Supreme Court.

In addition, in the past the voluntary abandonment doctrine was not applied to pre-injury conduct and conduct that happened at the same time as the injury. So for instance if you smoked a joint over the weekend, according to a case called Cordell you can be terminated for cause for violating a drug free work place policy, but still receive ttd compensation. Likewise following the Gross II case, aka “fried chicken case”, if you’re injury was caused by a workplace rule violation, again you can be fired for cause for violating that workplace rule, but still receive compensation.

I suspect these changes to the law will cause more litigation and confusion rather than clarifying things.

If you have any questions or concerns please call Malek & Malek Law Firm at 1-614-444-7440 or email kip@maleklawfirm.com

Stay Safe Ohio Order and Face Masks

Stay Safe Ohio Order and Face Masks

As of today May 4, 2020, there have been 1056 deaths and 20,500 cases due to the coronavirus in Ohio. Governor DeWine and Dr. Acton have published the new executive order, the Stay Safe Ohio Order. Construction companies, distributors, manufacturers, and offices are open as of today. Retail businesses may open on May 12. The order provides guidance on what employer’s are required to do. One of the key provisions is that an employer must require all employee’s wear a face mask except for the following conditions:

 

 

 

 

Reading that list, there is a lot of wiggle room for an employer to say why he/she is not requiring his/her employee’s to wear face masks. The other issue is where do you get face masks, and finally how do you force your employee’s to wear face masks. We’ve already seen videos and articles on youtube featuring confrontations between customers and grocery store employee’s about requirement’s to wear face masks. These have become violent, one security guard at a Family Dollar store was killed in Michigan when he refused to let a customer in without wearing a facemask.

I think this requirement will be hard to enforce. I think employers who do require that their employee’s wear facemasks will have a strong sword in that they can terminate an employee if he or she refuses to wear one in contravention of a workplace rule. That would be a legitimate basis for termination, and that employee would be forclosed from receiving unemployment. The employee could fireback claiming that he had a medical disability that prevented him from wearing a mask. That’s going to be a hard case.

People will be heading back to work. Since the coronavirus has not been completely eliminated in Ohio, folks may continue contracting covid-19 and becoming hospitalized. Its going to be really, really difficult to prove you contracted coronavirus at work at this time unless you are a prison worker, nurse, doctor, or other medical provider in a hospital setting, or work in a nursing home. Why because you could have contracted it anywhere. I discuss this further here.

Ohio BWC and Covid-19

The temporary lifting of the requirement for an updated Medco-14 has expired. For the end of March through April 30, 2020 you did not need an updated medco-14 certifying you temporary and totally disabled to receive temporary total disability compensation. Now you do. But now if you may receive an exam via telemedicine rather than physically visiting your doctor or physician of record’s office.

Hearings continue to be heard at the Industrial Commission by phone. Claimants are still not required to attend a hearing in person. I suspect that this change in circumstances will remain in effect for some time. The Industrial Commission hearing offices can be quite crowded at times. The hearing rooms themselves are fairly small and compact. Perfect incubator for the coronavirus.

Malek & Malek and Coronavirus

Malek & Malek continues to remain fully open and operational. We are proud of the fact that we have not had to lay off or furlough ANY employees. At the present time we are confident we will not have to lay off or furlough any folks in the foreseeable future. For that reason we have been able to continue to aggressively and compassionately represent our clients. James Malek has been brilliant in leveraging technology to do our jobs more efficiently and more effectively.

We are here, we will always be here, for you, our clients! -Kip

Protecting Ohio workers and Ohio Employers in the time of the Coronavirus

A new article from reuters discussing how the US Chamber of Commerce is asking Congress to protect companies from lawsuits related to the coronavirus:

https://www.reuters.com/article/us-health-coronavirus-usa-liability/corporate-america-seeks-legal-protection-for-when-coronavirus-lockdowns-lift-idUSKCN223179

Already it looks like nurses are filing lawsuits for lack of PPEs:

https://www.washingtonpost.com/nation/2020/04/21/nurse-protection-coronavirus/

You have the lawsuits in Chicago regarding the lawsuits filed by two Walmart grocery store employees who died:

https://www.nbcnews.com/news/us-news/least-4-grocery-store-workers-have-died-coronavirus-one-family-n1178371

 

I’ve talked at extensive length regarding the difficulties people may encounter filing a a workers comp claim due to coronavirus exposure in Ohio. I’m sympathetic to the employers perspective, should the employer be responsible if an employee gets sick from coronavirus. How can that employee prove that he/she got the coronvirus at work. But I’m also sympathetic to the employee’s position, that is if Ohio is opened too soon and not in a thoughtful and safe manner, employees may be putting their health at increased risk.

Again who is better situated to take on the economic hardship when an employee gets sick. Its hard to say. If its a small business, I suspect most businesses will be strongly to make ends meet, make payroll. Maybe bigger businesses are better situated, but the bigger the business the more potential sick folks.

Scary time. In the meantime it looks like the Emergency Paid Sick Leave Act may provide some relief to employees who get sick due to the effects of COVID-19:

Emergency Paid Sick Leave Act

(Sec. 5102) This section requires employers to provide paid sick time to employees who are unable to work due to the effects of COVID-19 (i.e., coronavirus disease 2019). Specifically, full-time employees are entitled to 80 hours of paid sick time, which is available immediately, for use if the employee

  • is subject to a governmental quarantine or isolation order,
  • has been advised by a health-care provider to self-quarantine,
  • is caring for an individual who is subject to governmental or self-quarantine,
  • is caring for the employee’s child because the child’s school or child-care provider is closed, or
  • is experiencing a substantially similar circumstance related to COVID-19 as specified by the Department of Health and Human Services, in consultation with the Department of Labor.

Stay safe out there folks, Kip

What if I get coronavirus at work?

Coranvirus at Work

The question is, what happens if I get coronavirus at work? Do I have a workers comp claim? I’ve broken this down in a faq I posted here. This is definately new and uncharted territory. Traditionally the Ohio Bureau of Workers Compensation would consider flu and colds an occupational disease. The Ohio BWC has addressed whether covid-19 and coronavirus would be a compensable workers’ compensation claim. That is whether you would be able to receive monetary compensation and payment of your medical bills due to the coronavirus.

They put out an answer which raises more questions, you can read that faq here. They essentially break it down into two parts, whether your occupation is the type of job that has a greater risk or hazard of getting the coronavirus than the general public and how you contracted the disease. I think for most essential workers, you will be easily able to say that you pose a greater risk of getting the disease than the general public. Imagine you are a COTA ( Central Ohio Transit Authority) bus driver. You must interact with 100’s of folks each day. Any number of these folks may have the coronavirus.

Same can be said for a grocery worker, cashier, or stocker at Kroger, Meijers, Giant Eagle, Walmart, or Costco. Everyday 100’s of customers walk in and out of the grocery store or warehouse. These folks breath, they cough, they touch things. If you are swimming in that miasma on a daily basis the likelihood of contracting covid-19 and getting the coronavirus is significant. How about a picker at the Amazon warehouse in Etna, we know for a fact that folks are coming to work at Amazon with the coronavirus. At least 19 Amazon warehouses had one or more instances of cov-19.

Now clearly the frontline doctors or nurses face a very high risk of exposure to cov-19 and coronavirus.

Hard Question

So that’s the easy question. The hard question will be how you contracted the disease. Can you prove by a preponderance of the evidence that you contracted coronavirus at work rather than at home, picking up groceries, pumping up your gas, opening a package from Amazon. That will be the hard case. But we’ll see. If you contracted the coronavirus and you think you got it from work. File a claim. Again if it was the run of the mill flu or cold, then you would not have a claim. But the coronavirus is new and uncharted territory.

Already other states are recognizing the coronavirus as an occupational disease. ( see the the police officer in Chicago who’s death was ruled in the line of duty).

If you have any questions or concerns about whether you can file a work injury claim for your coronavirus, please give Malek & Malek a call or email. We’re here to help.

I’ve been laid off due to the coronavirus, should I file for workers comp benefits or unemployment?

Laid off due to coronavirus: Workers Comp Benefits or Unemployment

In light of the coronavirus, a significant portion of the population in Ohio has been laid off or furloughed. First it was restaurants and bars, then barbershops and gyms, then Governor Dewine issued an executive order that closed all non-essential businesses. Governor Dewine issued an executive that expanded those who may be entitled to unemployment benefits to include those who have been laid off due to the coronavirus. You can read that executive order here.

Work Capacity

If your a worker who was laid off, the first question I will ask is what is your work capacity? If you had been certified temporary and totally disabled by your BWC physician of record ( POR ) in a medco-14 then you will NOT be entitled to file for unemployment, you will be limited to only being able to file for temporary total disability through your workers comp claim.

However if you had been working with restrictions certified in a medco-14 by your POR and you were laid off due to the coronavirus, you would be entitled to file for both unemployment and temporary total disability compensation. Why? Your employer is no longer able to accommodate your work restrictions, they’ve laid you off.

Pros and Cons of Unemployment versus Workers Comp

Probably the biggest advantage of applying for unemployment is that it will likely start to be paid quicker than workers comp benefits. If you apply for temporary total disability you will need to submit a C-84 form. The Ohio Bureau of Workers Compensation will need to process this request. The BWC may require that a nurse review the request to determine whether temporary total disability should be paid. They will then issue a BWC order indicating ttd should be paid. Your employer can then appeal this order.

If the order is appealed it will then be referred to a hearing before the Industrial Commission. The IC will docket it for a hearing. The hearing officer may or may not authorize the payment of ttd comp. All told, two to three months may go by before you have your hearing.

Now if you are receiving unemployment benefits and you subsequently receive temporary total disability compensation as well, you will not get both ttd comp and unemployment. The amount of ttd benefits you receive, will be offset by the amount unemployment benefits you receive. For example if you would have received $100 in temporary total disability compensation each week, but you are receiving $80 in unemployment benefits each week, you will only receive $20 in workers compensation benefits.

Now a final thing to consider is the following. Unemployment benefits are considered taxable income. Workers compensation benefits and workers compensation settlements are not taxable income, so you do not file state or federal income taxes on the workers comp benefits you receive.

If you have any further questions or concerns regarding this particular issue, unemployment benefits versus workers compensation please email or call Attorney Kip, Doug or Ben at the Malek Lawfirm.

 

 

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 Ohio.st.3d 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

-Dissent:

“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

 

Doug Malek, Ohio Workers Comp Attorney

Doug Malek an Ohio workers comp attorney at Malek & Malek Law firm and my brother, is a great lawyer, who deeply cares about his clients. But what most people don’t know about Doug is that he has an uncanny ability of chancing upon creatures around the Malek & Malek Law Firm.

Case in point, this past Friday Doug knocks on my door, “hey look at what I saw out in the back.” He then precedes to show me a picture of some kind of hawk. (maybe a cooper’s hawk, maybe not). “Where Doug?”, “Right outside near the fence.” Then he presents a video of the hawk hopping on the ground. I pop out on the second story patio which looks out at the back of our office, and try to find the hawk but sadly it had gone. If you would like to see Doug’s video of the hawk click here.

Go back a year ago, Spring 2018. “Look at what I found walking around the front porch of our office.” Look at Doug’s phone, a baby ground hog walking about the patio. It turns out there were actually two of these little guys. So a little background. There was an adult groundhog that took up residence in a neighbor’s garage shed, and under our patio via two groundhog sized “doors.” This adult ground hog would pull off jump scares when someone happened to walk through our front door when is was near the patio.

I imagine the ground hog said something like this in its head, “oh s&%$!, HUMANS!!, RUN!” But yeah, it would also inevitably startle us humans as well. I presume that that adult groundhog was the mother or father of the baby groundhogs. The one who found them was Doug. First, and only time I have every seen a baby groundhog. Super cute, I hope that they survived, but who knows. We haven’t seen them since

Anyways I was looking through boxes of old stuff in my garage, and i chanced upon some old photos from a family trip to Florida back in the early 90’s. At one point during a particular trip, sea turtles went onto the shore to lay their eggs. I’m not sure if Doug was the one who clued in to everyone that the sea turtles were coming, but I wouldn’t be surprised. Did Doug have any inkling at that time that he would be an Ohio workers comp attorney at that time?

sea turtle
Doug Malek, circa 90’s looking at a sea turtle in Palm Beach, Florida

At Malek & Malek Law Firm, Doug Malek, Jim Malek, Ed Malek, Ben Churchill, and myself care and work compassionately and aggressively to protect every injured worker we represent. I think at some base level the animals can sense the “goodness” in both Doug and our law firm, and that’s why they come. Maybe not, maybe its completely by chance. Still its super cool to have a seen not one, but two baby groundhogs. We may not be crocodile hunters, but we are great Ohio workers comp attorneys and our goal is always to protect the injured worker and his or her family via the Ohio BWC system.

Appealing Denied Medical Treatment Through the Ohio BWC

A common task that Malek & Malek performs on behalf of our clients is appealing denied medical treatment through the Ohio BWC. I’ve created a youtube video which walks through this process in a step-by-step manner which you can find by click here . But the bottomline is that anytime that your doctor requests treatment is that they must do so through a document called a C9.

Whereas if you had personal insurance, your doctor would refer you to a surgical referral. First you would check, “is this surgeon in my network.” If he is, go to him, if not have your doctor refer you to another surgeon within your network. You show up for the appointment, hand them your insurance card, pay whatever co-pay you may have, then get seen by the surgeon. The time between the referral and seeing the doctor most likely is constrained by the availability of the surgeon to see you.

Contrast this with the BWC claims process. Your BWC POR (physician of record), first has to submit a request for a surgical consult through the C9. The MCO (managed care organization) reviews that request and either authorizes, denies, or pends the treatment. If the treatment is denied, there’s multiple steps you must take before the denied treatment ultimately is heard by a hearing office at the Ohio Industrial Commission.

The time delay between when the treatment is denied and when you have had your IC Hearing can be anywhere from a month to eight months. That is the BWC process. Its frustrating, and if you do something wrong, that time delay can be even greater.

For these reasons we highly recommend you contact a workers comp attorney to handle the process of appealing denied medical treatment on your behalf. It likes I mention constantly, to a mechanic fixing an engine is easy, for everybody else might as well be rocket science. Likewise to a workers comp attorney we appeal denied treatment nearly everyday, but to a lay person it can be very complex, full of pitfalls.

 

ADDRESS
VIEW MAP
CONTACT
EMAIL US