Personal Injury

Personal Injury Claims During a Pandemic and Beyond: Snow & Ice; Nothing is Nice

February 17th, 2021 by

It was my second year of law school and I, admittedly, had waited to catch the bus until the absolute last second. As the clock ticked down, I bundled up as quickly as I could, grabbed my book-bag weighing approximately the size of an adolescent and sprinted for the door. No sooner had I ripped open the entrance door to my apartment complex when it happened.

I was suddenly airborne. It was one of those falls where you have sufficient time to contemplate all of life’s meaning while still afloat. I landed. Hard. My back was throbbing and yes, I missed the bus. Despite the nature of my profession, I try not to be too litigious but of course, my mind immediately thought do I have a claim?

As we continue to slog through the world nearly a year into a pandemic, winter decided to rear its ugly head in full force over the past week across the country. Many recent intakes I’ve fielded relate to my exact scenario: I slipped and fell on ice. What are my options?

Ohio’s Winter Rule:
The options for me in that moment and for many that experience this unfortunate event are limited. Ohio has adopted an austere, general rule often referred to as the “winter rule.” Effectively, this means that a property owner does not owe a duty to a person on its premises who slipped and fell due to the natural accumulation of ice. This is tethered to a larger, overarching rule of law called the “open and obvious” doctrine, which is in the name. Courts generally view it as a known risk to step outside in Ohio in the wintertime and potentially slip then fall.

With that said, like anything with the law, there is often an exception(s). This is true regarding an unnatural accumulation of snow and ice. For instance, a couple years back I had a client who slipped at an apartment complex similar to mine. However, in this instance, an improper drainage system caused an unnatural build up of ice to occur. Similarly, there have been scenarios where a property owner unreasonably clears snow in piles that cause an injury. While these cases are not always a dispositive avenue, they at least have a tenable theory of liability.

As always, the law is often applied based on the specific set of facts. It is always a best practice to at least determine if there’s a potential claim by calling in. Once I got back to the couch and had a few ibuprofen in me, the first call I made was to my boss, a personal injury attorney, at the time. Unfortunately, he broke the “winter rule” to me. As we continue to plow through this winter please stay safe, warm, and alert.

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“Super Six”: 6 FMR Attorneys Recognized by Ohio Super Lawyers 2021

December 15th, 2020 by

Congratulations to our “Super Six” Lawyers who were honored with recognition by Ohio Super Lawyers 2021: FMR Employment Law Attorneys Randy H. Freking, Kelly Mulloy Myers, Erin M. Heidrich and Elizabeth A. Newman, and FMR Personal Injury Attorneys Mark W. Napier and Austin LiPuma. These members of our firm have been recognized by Ohio Super Lawyers for 2021 as ranking among the top attorneys in Ohio.
Firm Partners Randy Freking and Kelly Myers have once again earned top honors with their inclusion on select lists of 2021 Ohio Super Lawyers. Randy has been named as a Top 50: 2021 Cincinnati Super Lawyer and Top 100: 2021 Ohio Super Lawyer. Kelly earned elite ranking as a member of the Top 25: 2021 Women Cincinnati Super Lawyers and as a Top 50: 2021 Women Ohio Super Lawyers. Mark Napier, a leader in our Personal Injury practice group, was likewise recognized as an Ohio Super Lawyer 2021.
Super Lawyers is a rating service that recognizes outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement in their state. No more than 5% of the lawyers in Ohio are selected for this distinction. The annual selection process to be named among Ohio’s Super Lawyers includes independent research, peer nominations, and peer evaluations.
Employment Law Attorneys Erin Heidrich, whose practice includes a focus on School Law and Education, and Liza Newman were both named as 2021 Ohio Rising Stars. Also named as a 2021 Ohio Rising Star is Austin LiPuma, a member of our Personal Injury team. This distinction, reserved for lawyers who have been practicing for less than ten years, indicates recognition of their outstanding work based on both peer evaluation and independent research. No more than 2.5 percent of all lawyers in the state are named to the Ohio Rising Stars list.
FMR is extremely proud of these attorneys for this notable achievement. Through their dedication and commitment to serving as Advocates for Working People, Randy, Kelly, Mark, Erin, Liza, and Austin have earned the respect of their peers and the honor and distinction of being among the select few designated as Ohio 2021 Super Lawyers and 2021 Ohio Rising Stars.

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Personal Injury Claims During a Pandemic & Beyond: I contracted COVID-19 at work—do I have a personal injury claim?

September 2nd, 2020 by

Without exception, there is one question I’ve received more than any other in recent months: Do I have a personal injury claim against my employer if I get COVID-19 at work?

Short answer: No.

 

a. Personal Injury Claim

To explain why, it’s first important to understand the nature of the claim from the onset. Even prior to The Pandemic, a personal injury claim against an employer was a rarity. In Ohio, an employer is liable for an injury sustained at the workplace only when the employer acted “with the intent to injure another or with the belief that the injury was substantially certain to occur.” R.C. 2745.01. This exceedingly high bar requires an injured employee to prove the employer intentionally sought out to inflict harm or, as defined by the Ohio legislature, to act “with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.” Id.  

A further reading of the law seems to provide an opening when an employer’s conduct is particularly egregious in flouting COVID-19 mandates. Specifically, an employer may be liable for injury when the employer removes “an equipment safety guard” or makes a “deliberate representation about a toxic or hazardous substance.” Id. At this stage, nearly six months into The Pandemic, most have heard some horrific anecdote about an employer’s bad behavior—from forcing employees to remove masks to intentional misinformation about its spread within the company and everything in-between. Do these type of scenarios open the door for liability? If an employee is forced to take down a glass barrier protecting her from an upper respiratory disease, should that not be considered removal of an equipment safety guard?

Again, the short answer is no. The Ohio Supreme Court has adopted a narrow interpretation in applying the above exception by limiting the term “safety guard” to “a device designed to shield the operator from exposure to injury by a dangerous aspect of the equipment.” See Hewitt v. LE. Myers Co. 2012-Ohio5317. As such, removing a glass barrier or any form of PPE from an employee unequivocally increases the likelihood of contracting COVID-19. However, it does not subject the employee to a dangerous component of a piece of equipment.

b. Workers’ Compensation Claim

Fine. With the prospect of a personal injury claim all but vitiated, what about workers’ compensation, where there is no such requirement of proving fault whatsoever? While not an emphatic “no”, it is highly unlikely as we head into fall, 2020.

As with COVID-19 itself, there are a myriad of moving parts involved. Prior to the flurry of proposed local, state, and federal emergency legislation, the answer was clear—workers’ compensation was an available avenue when an employee became disabled after contracting an occupational disease. See R.C. 4123.01(F). The legislature provided an exhaustive schedule of what an “occupational disease” is and is not under R.C. 4123.68. The list of diseases is effectively dispositive although some illnesses not expressly listed, like emphysema or chronic bronchitis, may be compensable if a causal link is established.

In one piece of emergency legislation, The Ohio House proposed adding COVID-19 as an occupational disease for frontline workers. See H.B. No. 606. Specifically, the amendment included “a presumption, which may be refuted by affirmative evidence, that COVID-19 was contracted in the course of and arising out of the employee’s employment.” Am.Sub.H.B.No.606 As Passed by the House. However, The State Senate omitted this amendment in passing its own version of the bill. Sub.H.B.No.606 As Passed by the Senate. While not yet signed into law, this version is silent on any available remedies for workers through workers’ compensation. The final version (proposed as temporary or uncodified law) is expected to be signed by The Governor in early September, 2020.

If we have learned one thing from this year, it’s just how much can change week-to-week, sometimes even day-to-day. Currently, limited recourse is available for a worker who contracts COVID-19 while on the job. This may seem appropriate when a worker successfully recovers and returns to the job within a reasonable timeframe. However, this will not always be the case. We are actively learning just how pernicious this disease may be for long-term health. What about future complications from COVID-19? Or those that suffer from a protracted illness with symptoms that persist much longer than two weeks? Is there an effective avenue of recovery? Unfortunately, as you’re likely expecting, the short answer is no.

 

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Personal Injury Claims During a Pandemic & Beyond

July 4th, 2020 by

Treatment, Technology, & Telehealth: Receiving Care During COVID-19

Even prior to a pandemic, an emergency department (“ED”) was one of the last places any person would want to be. Since the known proliferation of COVID-19 in March, 2020, ED numbers have starkly declined by almost half, from 2.1 million visits between March/April, 2019 to 1.2 million visits between March/April, 2020. Of course, one of the contributing factors to this decline was the limited opportunity in which to sustain a trauma-level injury. Massive shutdowns meant less people on the road, which inherently meant less motor vehicle accidents. However, for many people that were injured and required treatment, the thought of going to an ED in the midst of a pandemic was distressing.

This Catch-22 did not go unnoticed by the Center for Disease Control and Prevention (“CDC.”) Recently The CDC, in their weekly mortality and morbidity weekly report, expressly recommended that those needing triage and trauma-level care seek out “virtual visits.” The CDC also acknowledged that those without an established primary care physician/accessible medical provider suffered further. Without treading into fear mongering, it is clear that COVID-19 will be with us one way or another for some time. Embracing and expanding Telehealth services, especially when it comes to personal injury claims, will assist in a dual-purpose way: 1) timely treatment for injured people; and 2) preserving personal injury claims.

It’s something we have all heard from a loved one at some point in our lives: “Go to a doctor.” I heard this from many when I foolishly failed to seek out immediate medical treatment after dislocating my shoulder several years ago. It was a learning lesson and one that I now use as a cautionary tale for many clients who, for whatever reason, express reticence in seeking necessary medical treatment. If you are experiencing pain, it is essential to go to a doctor (or any other qualified medical professional). Beyond the obvious in ensuring you obtain treatment for a noted injury, it is necessary in establishing “harm” in a personal injury claim.

The “harm” suffered in a personal injury claim is often referred to as “damages.” Under Ohio law, damages include many impacts suffered as a result of an injury. Often the largest calculable harm suffered comes in the form of medical damages. These damages include “all expenditures for medical care or treatment, rehabilitation services, or other care, treatment, services, products, or accommodations as a result of an injury or loss to person or property that is a subject of a tort action.” In other words, care from a medical provider is compensable. This is true whether you are standing face-to-face with the medical professional or through the lens of your smartphone/device. With the rapid increase of Telehealth services, a simple Google search should instantly turn up local, virtual providers, including ED-level care. The hope that Broadband and WiFi capacity will continue to grow across all geographical areas over time makes this all the more appealing.

Obtaining appropriate medical care following an injury has always been intrinsically costly, stressful, and time-consuming. This onus has been compounded by an ongoing pandemic. Taking advantage of technology with telehealth services helps preserve your physical wellbeing as well as a personal injury claim.

Remember: Go (virtually) to a doctor.

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How Nursing Homes Must Battle COVID-19

April 7th, 2020 by

As of this writing (4-7-20), US deaths from COVID-19 are increasing hourly. Many of these deaths have occurred in nursing homes. It is well-documented that the virus spreads rapidly. If an infected person coughs, sneezes, or even talks, it is now suspected by medical authorities that the infected person’s respiratory droplets can remain in the air for up to three days. So, nursing Homes are on the front lines in battling COVID-19.

Nursing home residents generally are elderly people with co-morbidity conditions that make them more at risk than healthy, younger persons. As we age, in general, our immune systems weaken. To assist nursing homes, The Centers for Medicare & Medicaid Services (CMS) and Centers for Disease Control and Prevention (CDC) have continually issued and updated their guidance for nursing homes. Nursing homes must take reasonable steps to comply with these guidelines, some that include the following:

* Strict immediate compliance with all CMS and CDC infection control guidance.
* Prohibition of all visitors, volunteers, and non-essential healthcare personnel to the facility.
* Prohibition of all resident group activities or gatherings, including communal dining facilities.
* Strict screening for fever of all personnel entering the facility, except EMS responding to an urgent medical need.
* Use of face masks by all personnel and by all residents having to leave their room for any reason.
* Personal Protection Equipment (PPE), such as face shields, eye protection, and gowns by all personnel who attend to residents who have or who are suspected of having the virus.
* Daily screening of all residents for fever, cough, or shortness of breath.
* Separate staffing and Isolation for all residents who have or are suspected of having the virus.

Nursing homes will likely need state and local leaders’ assistance to address some of these needs, particularly acquiring the proper PPE to treat virus patients and COVID-19 tests. If you have any questions or concerns about the care your loved one is receiving in a nursing home, please feel free to contact Mark Napier at mnapier@fmr.law.

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