FAQ Category: Workers Comp

Frequently asked question regarding workers comp claims

Can I file a workers comp claim if I get coronavirus at work?

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:

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

Can I get fired for filing a workers comp claim?

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.

How workers comp settlement is calculated?

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:

Can a workers comp doctor force you back to work?

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.

How long can you stay on light duty?

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.

How much does a workers comp attorney charge?

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!

Do I need a lawyer for my work injury?

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.

Do you still get paid if you get injured at work?

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

Can you sue workers compensation for pain and suffering?

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

Can I sue my employer for my work injury?

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