No, in theory you cannot. What do I mean. If you file an Ohio workers comp claim and your employer fires you would file a workers compensation retaliatory discharge lawsuit pursuant to Ohio revised code 4123.90.
Here’s the deal though, you need to let your Ohio work injury lawyer know you have been terminated as soon as possible. Do not sit on this information. Why? Because you have to give your employer notice that you are going to file your retaliatory discharge lawsuit within 90 days of the termination. The actual retaliatory discharge lawsuit must then be filed within 180 days from your termination. If you are late in filing notice or the lawsuit, that ship will have sailed even if you have dead to rights evidence of retaliation.
In most cases if you have an adverse employment action in Ohio like termination, demotion, constructive discharge, harassment, etc. you’d file a charge of discrimination at the Ohio Civil Rights Commission. But if you do when you’ve been terminated for filing your workers comp claim, they’ll direct you to file a 4123.90 retaliation lawsuit.
Notwithstanding this lawsuit, if you do suffer a work injury or work accident then you will need to dot your i’s and cross your t’s. You will be in a proverbial fishbowl. So things that your employer may have let slide in the past, like being a few minutes late, may not fly now. In adverse employment suits all an employer has to do to refute your claim is to offer a legitimate business reason for the adverse employment action or termination. Firing an employee for being late may be found to be a legitimate business reason for your termination.
Call an Ohio workers comp attorney at Malek & Malek for a free evaluation of your workers comp claim. We can discuss your work injury and put you on the best path for success.
There are a number of factors that go into how your workers comp settlement is calculated. Chief among them are the potential future medical expenses and potential comp you may receive. This is really the driving force behind how much your employer and the BWC may offer you to settle your case.
A common misconception is that the longer you have been off work, the more you will receive from a possible settlement. That’s not how the BWC settlements work, unfortunately. You can look at your BWC claim as a balloon. When your claim is allowed you are given a balloon, that balloon is filled with air. As compensation is paid out in the form of temporary total disability compensation, air is removed. As medical treatment is made and paid out through the claim, air is removed from the balloon.
So if you are near the end of the claim and it doesn’t look like any more medical treatment or compensation is forthcoming, the workers comp settlement value of your claim may be low. Now on the other hand if you possibly have medical treatment pending like surgery or you may be found permanently and totally disabled, then you still have a significant amount of air left in your balloon. The more construct the future comp and medical, the more value your claim may be.
Columbus work injury lawyer Kip Malek discusses in greater detail how to calculate your workers comp settlement in the following video:
Yes, your workers comp doctor can release you back to work on a full duty basis without restrictions. However an Ohio work injury lawyer can help match you with a work injury doctor that engages in a dialogue about what you can or cannot realistically do, rather than unilaterally forcing you back to work.
There are three types of workers comp doctor : employer biased doctors, worker biased doctors, and surgeons. Employer biased doctors sometimes unilaterally release their patients back to work with little to no feedback from patients. Worker biased doctors usually communicate and try to accommodate the legitimate concerns and limitations of their work injury patients. Surgeons sometimes release workers comp patients back to work after the work injury patient has undergone a period of rehabilitation following surgery without really considering the physical rigors of that persons job.
If your work injury doctor certifies that you return to work without restrictions your temporary total disability compensation will be terminated. You will need to return to work. So if you think you really are not ready to go back to work, but your BWC workers comp doctor is hinting that you should, you really need to reach out to an Ohio workers compensation lawyer at Malek & Malek today. We will be able to inform you of your options, give you a list of bwc doctors which might be more reasonable and logical about your current limitations.
However if you doctor does release you back to work and you return to work and you have an exacerbation of pain and symptoms. Your Ohio work injury doctor may re-certify you temporary and totally disabled.
You can stay on light duty in perpetuity. The issue is, can your employer provide light duty forever. As a work injury lawyer my answer my short answer is no. The way things work in Ohio is that if your workers comp doctor certifies you light duty IF you employer gives you a light duty WRITTEN job offer that accommodates your work restrictions you must take it.
Within the frame work of the workers comp system there is this legal concept called Maximum Medical Improvement. For the purposes of most injured workers this term comes up when he or she is off of work and receiving temporary total disability compensation. Once you are found to be MMI for the allowed conditions in your claim your compensation stops.
Now if you are on light duty and you are found MMI for your allowed conditions, then your employer would not have to pay you compensation if they did not accommodate your work restrictions. Now will they instantly pull the rug out under you, probably not, because then they may infringe upon a ADA discrimination type system. In regards to a disability discrimination type framework, the employer only has to provide a reasonable accommodation, and the employee must be able to do the primary functions of the job with or without an accommodation. Basically employer does not have to make extraordinary efforts just to ensure you still have a job.
As a general rule a work injury lawyer that represents an injured worker nearly always charge what is called a contingency fee. That is, if the work injury lawyer recovers compensation for his client that work injury attorney is entitled to a percentage of that compensation.
Workplace injury clients typically never opt to pay an hourly fee. It would likely be prohibitively expensive for the injured worker to pay for an attorney to represent them in this fashion.
If you need a Columbus Workplace Injury Lawyer, contact Malek & Malek!
As a rule of thumb you should always at the very least consult with a workplace injury attorney. In general the Ohio workers comp system can be overly complicated and labyrinthine for a normal injured worker.
You might NOT need a workplace injury lawyer under the following very limited circumstances:
If you get injured at work and have an allowed Ohio workers compensation claim for that workplace injury you may be entitle to temporary total disability compensation for your workplace injury.
You are entitled to temporary total disability under two scenarios: 1.) you cannot work at all or 2.) you have work restrictions and your employer cannot accommodate those work restrictions.
Your doctor certifies you off work completely, or releases you to work with restrictions only. Your bwc doctor certifies you in a document called a Medco-14. You submit a request for temporary total disability compensation in a form called a C84.
Short answer no, but . . . you can file for a form of compensation award called an award for permanent partial disability comp. It is essentially an award for pain and suffering in relation to your allowed work injury claim. You file for this form of comp in an application called a C92.
You are then evaluated by a BWC doctor who then assigns you a permanent partial disability percentage. If you disagree with that doctor’s percentage then you may undergo an evaluation by your own doctor. At an Industrial Commission hearing, a hearing makes a determination between the two percentages. You are paid the permanent partial disability award based on the number determined by the hearing officer.
You can watch a detailed how to calculate Permanent Partial Disability award here
No, generally you cannot sue your employer for your workplace injuries. In Ohio an employer has immunity from personal injury liability, instead an employer must have workers compensation coverage for work injuries that happen by employees. So if you get injured at work you do not SUE the employer, you file an Ohio workers compensation claim for your work injury. If your claim is allowed you may receive compensation benefits and medical treatment.
Now if your employer does something whereby he is found to have intentionally tried to hurt you, then you piece the workers comp shield and you may sue him for an intentional tort. In Ohio its a pretty high barrier to over come.
If you think your employer did something so manifestly wrong that he committed an intentional tort you should contact a work injury attorney. You may or may not have an intentional tort claim, if you do you may be able to sue for economic, non-economic, and punitive damages. Depending on what occurred the damages may be significantly more than the compensation you are currently receiving through your workers comp claim.
After you have received your emergency care you will need what is called a POR or Physician of Record. A physician of record will provide medical treatment, medication, request medical treatment, request diagnostics, and send you out to specialist. A Physician of Record is similar to a primary care physician except they will only be treating you in relation to work your injury and the allowed conditions in your work injury claim. You can choose whomever you wish to go to as your POR, you DO NOT have to go where the hospital sends you or where your employer sends you. Your physician of record can be a chiropractor.
The POR will document objective findings related to your work injury. One of the great distinction between a workers compensation doctor and a regular doctor, is the workers comp doctor will fill out the myriad different forms that the BWC requires. From certifying you off work in a document called a Medco-14, to requesting specific medical treatment in a document called a C9.
In case you do not have a POR, here is a list of medical providers and facilities in and around Franklin County that can serve as a POR (listed in no particular order). Also if you do not live in Columbus, email us we can connect you with a POR in your area of Ohio:
Assuming this not a life or death emergency, first I would tell my supervisor or lead that I had suffered a work injury. If there is a process in place to document work place injuries and accidents such as an Accident Form or Incident form have you supervisor or lead fill one of those out. Typically witnesses will be documented in this accident or incident form and then you will sign and date the and then your supervisor will sign and date the form.
The next step will be to seek medical treatment. Again assuming this is not a life or death emergency, you might decide to forgo a traditional ER and either go to an urgent care or walk-in clinic where the provider charges a flat fee. Why would you want to do that. Well if your claim is allowed, then ER charges would be submitted against your claim. If not better to be stuck with a couple hundred dollar charge, rather than however many thousands an ER visit may cost you. You may also choose to go to your Primary Care Physician. The whole purpose of this initial medical visit is to take care of your injury, and DOCUMENT your work injury and body parts that were injured.
Finally, you will want to submit a FIRST REPORT OF INJURY form or FROI-1. Typically if you go to an ER or Urgent Care they will ask if your injury is a work injury or not. If it is a work injury they will fill out a FROI-1 form and send it to the BWC. This will start the BWC claim process. You can submit a FROI-1 form yourself without a medical provider signing and dating it as well, however you will still need to have a medical provider relate your injury and injured body parts to your work activity.
If your workplace injury is something more significant that a minor cut or bruise, I strongly recommend you contact a work injury lawyer at Malek & Malek for a free consultation.