NEWS & RESOURCES

Work Injury FAQ

02.16.15
FAQ Work Injury

If you are a victim of violent crime at work and suffer an injury you would be able to file both for an Ohio Worker’s Comp Claim and Victims of crime claim. You would file your workers comp claim at the Ohio BWC and you would file the Victims of Crime claim at the Ohio Attorney General’s office.

The Victims of Crime claim will act like a net. You will pursue compensation like temporary total disability and payment of medical bills through your BWC claim. If your comp or medical bills are denied at an Industrial Commission hearing then you can pursue payment of your lost wages and medical bills through your Victims of Crime claim.

However you cannot participate in the Victims of Crime program if you do not report the crime, do not cooperate with law enforcement, or you have committed a felony crime within 10 years of filing the Victims of Crime claim. You can read the guidelines on how to file the claim here.

Scenarios where you can pursue both a BWC claim and VOC claim:

  • Getting knocked out by a club goer while serving as a bouncer
  • Getting attacked and robbed while delivering pizzas
  • Getting assaulted by a patient at a care home for developmentally disabled adults
  • Suffering an injury at work by a co-worker, where the co-worker has been arrested and being investigated for committing the assault
  • Involved in a hit-and-run car accident

A real world example of this has recently played out in Columbus, Ohio . A gentleman was assaulted while working as a security guard in a used car lot on the West Side of Columbus. Pretty serious injury, he was knocked unconscious. From the article it appears that the security guard will go back to work.

The Malek & Malek Law Firm has represented individuals who have suffered serious head injuries at work as a result of a violent crime. Some folks, like this man, are able to go back to work. Others suffer photophobia, phonobia, personality changes, mood changes, cognitive issues. The VOC benefits are capped at $ 50,000. In this case the BWC would cover medical bills and compensation past this $50,000 limitation. So if you or your loved one are not able to return back to work then you can file for permanent total disability. Depending how old you are when you file for PTD compensation, the lifetime payout can be orders of magnitude larger than $50,000.

https://abc6onyourside.com/on-your-side/caught-in-the-act/security-guard-attacked-while-patrolling-car-lot

Category: Workers Comp

Depending on whether or not you have a case when your neighbor’s pitbull bit your child depends upon the dog bite statue 955.28(B) and common law. Is your neighbor an owner, keeper or harborer of the dog. Even more importantly can your neighbor or your neighbor’s home owners insurance plan pay compensation if you win your dog bite case. If the pitbull owner or keeper owns the house, and generally has assets, then you’ll be better positioned to collect when a judgment is entered against him or her. If the dog bite owner or keeper rents the house, might be more problematic. They may not have sufficient funds or assets to pay the judgment against them. You may also wish to sue the landlord as well when your neighbor’s pit bull bites your child.

A recent Ninth District, Ohio case, Brown v. Terrell deals with a situation where a child gets bit by the neighbor’s pitbull. In that case a seven-year old was playing ball outside on their driveway. The ball rolled to a space next door where the neighbor’s pit bull was chained. The pit bull broke the chain, and bit through the seven-year old’s ankle requiring surgery and implants. So we’re talking significant economic losses in terms of medical bills, and non-economic losses in terms of the psychological impact the attack had on the child.

So who do you sue? Well the lady renting the house was not collectible. In fact the rarely paid rent. She’s probably not collectibe. Apparently she had enough money to buy the pit bull but not enough money to pay the damages when that same said pit bull bit a child. Move up the chain, who owns the house? Grandma.

So Grandma is not an owner or keeper of the dog, irresponsible dog owner granddaughter is. Is Grandma a harborer? The court in this case did not find that grandma was a harborer. To be a harborer the mauling must have occurred in a common area or in an area under the possession and control of the landlord.

The court determined he attack did not happen in a common area shared by the grandma-landlord, and granddaugher-renter. That is it did not occur on a sidewalk, parking lot, foyer, or hallway necessary to the use and enjoyment of the leased property. Here the attack occurred in the yard of the rented house which the court determined was not a common area.

Furthermore the court determined that for a single-family residence situated on a normal-sized lot, there is a presumption that the tenants possess and control the entire property. The necessary control necessary to make the landlord-grandma a harborer is the power and right to admit people to the property and exclude people from it. In this case even though grandma-landlord told granddaughter-renter that she did not want a young man who fired a gun in the house to be there, this was not considered the power and right to admit people to the property. (this seems contradictory to me, but courts often make weird decision contradictory to logic). So grandma was not a harborer.

This is one case, with a specific set of facts. Every case is different, every case can go different directions. That’s why you need to hire James Malek who has the experience and knowledge to represent your child who was bit by your neighbor’s pit bull.

Category: Dog Bite

The question of who is responsible for the damages caused by a dog bite is a very important question. Why because even if you get a judgment against someone for a dog bite, that is you win, you may still lose if the defendant has no money. This is an important consideration when trying to collect from your neighbor who doesn’t have two cents to his name but has a dog that bit you or attacked you. If your neighbor has no money to collect from, your neighbor’s landlord may.

In Ohio if you drive a car you are legally required to have some level of car insurance. That’s not to say there still are not a bunch of folks driver uninsured (which is why you should get uninsured and underinsured motorist coverage). However there is no requirement a dog owner prove that he can cover the damages, i.e. the money owed to the plaintiff, if and when his dog attacks and bites someone before he purchases the dog. So if your neighbor wants to buy a pit bull, cane corso, or rottwelier, all he has to do is pay for the dog, poof, its his. No background checks.

So your neighbor’s pitbull, cane corso or rottweiler bites your hand causing severe damage requiring hand surgery, rehabilitation, ptsd. You are off work for a month. Your neighbor isn’t collectible. He has self-inflated net worth of billions, but only $200 to his name. What about his landlord?

Under the Ohio dog bite statute, 955.28(B) a harborer is liable for any injury, death, or loss to person or property that is caused by a dog. The landlord may be a harborer if the landlord is in possession and control of the premises where the dog lives and silently acquiesces to the dog’s presence. see Flint v. Holbrook.

The difficulty in making a landlord liability is that Ohio courts have cabined in the definition of “possession and control.” You have to define the area where the dog bite occurred, did it occur in a common area. What is a common area:

  • Areas under control of the landlord and which are reasonably necessary to the use and enjoyment of the leased property such as sidewalks, parking lots, foyers, and hallways.
  • Entire property of a rented single-family residence on a normal city sized lot is NOT a common area.
  • Porch of a rented single-family residence not considered a common area by Ohio courts

If the dog bite instead occurred in the tenant’s house, or fenced in backyard things become more difficult. In the following situations the landlord was not in possession and control of the premises where the dog bite occurred:

  • landlord not a harborer where he had keys to the premises, but never let himself into the rental property without first letting the plantiff know
  • landlord made monthly visits to inspect the rental but did not enter residence
  • landlord not in possession of control of the premises even if he had the right to force a tenant to get rid of a dog
  • Common acts of a landlord such as making repairs, paying taxes, insuring the structure do not make landlord in possession or control of the premises

Fundamentally the control necessary to make a landlord a harborer for the purpose of “control” of the property is that he must have the power and the right to admit and exclude people from the rented property. Generally when you are a landlord you don’t control who enters or leaves the rented property, the renter does.

If you have been a victim of a pitbull attack contact James Malek at Malek & Malek.

Category: Dog Bite

There are two types of damages or money you may be awarded if you prevail under a common law dog bite case. These are compensatory damages and punitive damages.

Compensatory damages are divided into two categories. Economic damages and noneconomic damages. Economic damages include money and expenses that you have actually suffered such as medical bills and lost wages due to the dog bite injury. Noneconomic damages are damages that have no concrete, “this is how much this costs, here’s your bill” amount. These include things like pain and suffering and loss of consortium.

In Ohio there is no cap on economic damages. So if you incur $30000 in medical bills, you can be awarded $30000 in medical bills. Non-economic damages have been capped. In Ohio, you receive, which ever is greater , either $250,000 or three times your economic damages up to $350,000.

Now if the victim of the dog bite has suffered a permanent or physical deformity, or a permanent physical injury that prevents him or her from caring for himself/herself, there are NO limitations on economic damages.

Punitive damages are capped twice the value of compensatory damages.

James Malek has successfully recovered millions of dollars in damages for his dog bite client. Contact him today to see if he can you.

Category: Dog Bite

In short, a very qualified maybe. Per the BWC’s Covid-19 policy faq, that if you work in a job that poses a special hazard or risk and contract covid-19 from work exposure, the BWC could allow your claim. Notice the qualified word “COULD” not “should” or “will.”

The challenge for you the worker who contracted the coranavirus is proving that you in fact contracted the virus at work rather than at home, or picking up food from a carryout or buying precious toilet paper at the grocery store or filling up your gas tank at BP.

The other question is does your job pose a special hazard or risk? I think you could make a strong argument that if you are considered an essential worker your job currently poses a special hazard or risk.

So lets run down some scenarios:

Scenario 1: Cashier at Meijer, Kroger, or Costco

You are a cashier or stocker at Meijer, Kroger, or Costco. You contract the coranavirus. You develop a serious form of the virus requiring a period of hospitalization. You file a workers comp claim for your coronavirus exposure.

During the period of time required to contract the coronavirus you only worked at Meijer, Kroger, or Costco. You did not have an alternate job. In addition you did not go to meet and speak with neighbors. You did not pick carry out food at Tacobell or McDonalds. You filled your tank the gas station on the property of Meijer/Kroger/Costco. You either live only or you live with others (family/wife/husband/son/daughter, etc), but no one else in your house contracted coronavirus or tested for the coronavirus.

In this case you can show that you probably did contract coronavirus in the course of employment of working at Meijer or Kroger or Costco. Why because you didn’t go anywhere else outside of work. You filled your gas at the store’s gas station therefore you were in the “zone of employment” of the store. You can show that you didn’t contract it from anyone at your house. You face a special hazard because the grocery store is required to stay open and you face with an excessive amount of people, where most everyone else is camping at home under the “shelter at home order.” Therefore as an occupational disease your claim may be allowed.

Scenario 2: Amazon or warehouse worker at Cardinal Health

You are a picker at Amazon. Amazon is considered an essential business so you are forced to show up to work. You work in a giant warehouse with 100’s of other folks. You are required to pick a set number of items each hour. Once you clock out from work you go Kroger’s and pick up some milk, ground, and vegetables. You fill your gas tank at the BP near your house. You live alone. Another picker in your section is absent for a week after they had been complaining of a bad headache and a fevor. You subsequently learn that that person contracted coronavirus. Unfortunately you also develop coronavirus necessitating that you be hospitalized.

In this case, you likely face a special hazard, every none essential business is closed, yours is not. The problem that you would be presented with is whether you developed coronavirus in the course of employment. You would have to show that it was more likely than not that you developed coronavirus at work. This would be very difficult to do because you have had multiple contacts and opportunities to contract coronavirus outside of work, including the grocery you shopped at or the gas station you filled your car up.

Scenario 3: Your are an ICU nurse at a hospital that is caring for coronavirus patients

You are an ICU nurse at OSU Wexner caring for those coronavirus patients on ventilators. You are doing god’s work. Everyday you clock in put on your personal protective equipment (ppe’s); you are doing possible avoid getting sick. Once you are done working a 24-hour shift you go to Meijer to pick up some fresh vegetables because you’ve ate nothing but cafeteria food for the week. When you get home you open a package of special moisturizer you’ve ordered from Amazon. You go to sleep, you wake up with a fever. It doesn’t get better, eventually you get diagnosed with coronavirus and end up in the same ICU you were a nurse.

In this situation, you can make a very strong argument that you face a special hazard or risk different from that experienced by the public in general. You exclusively work with patients with the coronavirus. This is your job.

The problem in your case is that you cannot eliminate the possibility that you contracted the virus at Meijer’s or even from the package that you received from Amazon.

That’s going to be the challenge in every scenario and situation, eliminating other sources of the coronavirus.

Uncharted Territory

This is new, uncharted territory.Everyone and all workers in Ohio have been affected by the coronavirus. Its quite possible that the Ohio government passes legislation that grants some kind of relief or benefits for those who have contracted covid-19 as a result of exposure at work. They may create a special category of workers compensation benefits due to covid-19 for medical providers, nurses, doctors, grocery story workers, Amazon workers, and workers from essential businesses.

If you want to learn more about the Ohio Bureau of Workers Compensation’s faq regarding covid-19, click on the link below:

https://www.bwc.ohio.gov/downloads/blankpdf/COVID-19-BWCFAQs.pdf

Currently the attorneys and staff at Malek & Malek Law Firm are working at work or at home to protect our clients and their families during this coronavirus epidemic. Doug has been working from home. In lighter piece of news, his family has recently adopted puggle puppy:

puggle puppy

Category: Workers Comp

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.

Category: Workers Comp

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:

Category: Workers Comp

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.

Category: Workers Comp

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.

Category: Workers Comp

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!

Category: Workers Comp

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:

  • You had a minor workplace accident, you went to the ER or urgent care, your employer has agreed to pay for that ER or urgent care visit, you have no more medical issues, and you have not missed any lost time.
  • You have had a prior work injury claim, you had previously managed your own claim, you understand how to file appeals to BWC and IC Orders and treatment denials, you completely understand the ins-and-outs of the BWC system.

Contact a workplace injury lawyer at Malek & Malek for a free consult, free advice, no obligation to sign up.

Category: Workers Comp

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.

If you have any questions call the workers comp attorney in Columbus Ohio at Malek & Malek

Category: Workers Comp

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

Category: Workers Comp

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.

Contact the work injury lawyers at Malek & Malek for a free consultation today

Category: Workers Comp

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:

Category: Workers Comp

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.

Category: Workers Comp

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