When a worker sustains a serious injury on the job in Ohio, the obvious place to turn for compensation is the State of Ohio’s Bureau of Workers Compensation the “BWC”). But did you know that other sources of compensation may be available? Generally, when a worker is injured as a result of his own carelessness or the negligence of a co-worker while on the job, he/she is limited to compensation from the BWC. The BWC is an employer-friendly compensation system that is prone to delays, constant battles, and inadequate compensation. There are a number of situations where additional, more favorable compensation can be obtained.
An intentional tort case may be brought against an employer when the employer’s negligence is tantamount to intentionally putting the worker in harm’s way. This most commonly occurs when an employer removes a safety guard that is designed to prevent injury.
Another potential source of compensation may be available when the workplace injury occurs as a result of negligence by employees of another company. This scenario arises frequently on construction sites, when one subcontractor engages in a dangerous practice that results in an injury to an employee of another subcontractor. These so-called “third party actions” are also available when a worker is injured in a car accident, truck crash or other transportation-related accident caused by someone other than a co-worker.
Third party actions may also arise when a worker is injured on another’s property due to a hazard on that property. For instance, a salesperson who sustains injury while calling on a customer may have a valid third party claim. These so-called “premises liability claims” have one significant limitation: the “open and obvious” defense. Ohio courts have held that if you sustain injury on another’s premises, you cannot collect compensation if the injury-causing defect or hazard is open and obvious. For example, natural accumulations of ice and snow outside of a building would be considered open and obvious. Likewise, an open hole or a sidewalk crack that can be seen with an unobstructed view would be considered open and obvious.
Premises liability claims in Ohio are winnable only if the injured person can prove that the injury-causing hazard was created by the premises owner or leaseholder, or if the owner or leaseholder knew or should have known of its existence. Early in my career as an Ohio personal injury attorney, I handled an interesting premises liability case that illustrates the latter “notice requirement” perfectly. My client was traveling on an interstate when a large dead tree from an adjacent private property fell onto the roof of his car. The client sustained a serious brain injury as a result of the crash. With the help of a tree expert from The Ohio State University, I was able to prove that the tree had been dead for several years, such that the property owner knew or should have known that it posed a hazard to passing motorists.
Another third party action may arise when a worker is injured by a crime occurring on the premises where he/she is a worker. These cases seem to be occurring with greater frequency in our increasingly violent society. In order to hold a premises owner liable for a criminal assault, rape or murder committed by a third person on their property, the injured party must show that the property owner knew or should have known that the premises were likely to experience criminal activity but failed to take adequate security precautions to protect visitors from serious injury.
Once a BWC claim is filed, the Bureau or a self-insured employer has an automatic right of subrogation to any funds recovered by the employee from a third party. This subrogation interest includes any future BWC payments that the employee may be entitled to. However, the BWC subrogation statute contains a provision that allows a setoff for the costs of recovery (i.e., lawyer fees and case expenses) and for “uncompensated” personal injuries such as pain and suffering or wage losses and expenses that are not covered by BWC benefits. Our firm will work in conjunction with the client’s BWC attorney to maximize the recovery from third parties and to minimize the employer’s subrogation interest.
People interested in learning more about our firm’s legal services, including medical malpractice in Ohio, may ask questions or send us information about a particular case by phone or email. There is no charge for contacting us regarding your inquiry. A member of our medical-legal team will respond within 24 hours.