Head Trauma Causes Railroad Foreman to Sue Employer

Traumatic brain injury can be deadly. It certainly alters a person’s life.

This on-the-job injury case involved a railroad worker. John Doe (whose name has been changed to protect the victim) had worked for the Kansas City Southern Railway Company for a number of years when he was involved in an accident.
The fateful event happened in 2009 when Doe, a section foreman, and his crew were removing broken rail of a section of track. Suddenly, the boom of the crane struck the ball of the rail still loaded in the rack of a railway section truck. The impact rolled it over the forks on the rack and the rail dropped like a stone to the ground. On its way down, Doe was hit and sustained severe back, neck and head injuries.

From that day forward, Doe suffered unbelievable physical pain and suffering, lost wages, mental anguish, loss of current and future earnings, diminished earning capacity and enormous medical bills that he was unable to pay. Doe hopes that his case will be successful, and that he will be able to recover enough money to take care of himself for the future.
Cases like this are tricky and may also involve worker’s compensation. In some states, a worker is not able to sue his employer because he is being paid workers’ compensation. Since this varies state by state, it is something that needs to be checked with an Austin personal injury lawyer if an accident like this takes place in Texas.

Workers’ compensation is always an issue when workers are injured on the job, but each case is different, so never assume you do not have a case or that you cannot get compensation. The details of the case need to be discussed in depth with an experienced Austin personal injury lawyer. As things currently stand, Texas private employers may choose whether or not they will offer workers’ compensation insurance to their employees. Typically, the employer is mandated to tell the worker if they have coverage or not.

Workers’ compensation pays the medical bills and covers a portion of a worker’s lost wages if they are injured on the job or are affected by a work-related illness and the employer has coverage under the Texas Workers’ Compensation Act, Title 5, Subtitle A, Labor Code. It can also cover for vocational rehabilitation and retraining when an injury prevents a worker from going back to their normal job, and they need to learn a new position to be able to work with a longer-term injury or disability.

Brooks Schuelke is an Austin personal injury attorney with Perlmutter & Schuelke PLLC. Contact an Austin injury lawyer at Civtrial.com or (512) 476-4944.

Sports Injury Lawsuits: Another Lawsuit Filed Against The NFL Related To Concussions & Painkillers

A dozen former National Football League players have filed a personal injury suit against the NFL and others for allegedly overusing the painkiller Toradol.  The lawsuit alleges that teams and trainers were regularly dispensing the medication, which made it difficult to know when players had sustained serious injuries, including concussions.  The emphasis is on concussions and the long-term effects of concussions on the league’s players.  The specific allegations are that the players have residual concussion symptoms, including anxiety, depression, memory loss, severe headaches, sleeplessness, and dizziness.

This story serves as a reminder for several lessons.  First, it is again a reminder that in sports there are many injuries that aren’t just accidents.  While some injuries are unavoidable, teams owe duties to players to take reasonable precautions to make sure the players are safe.  That means not overly medicating them, not forcing them to practice in unreasonably hot or dangerous conditions, etc.

Additionally, the story is a reminder about the danger of concussions.  I feel like I’m on a one-man crusade on this blog, but car wreck and other injury victims need to be on the lookout for symptoms of concussions.  They are sometimes difficult to diagnose, but they can have long-term health consequences.

If you or a loved one has been injured in a sports-related incident or have suffered a concussion in an accident caused by the negligence of others, please give us a call, and we’ll do our best to help you out.

Lesson From Cedar Park: Buy Uninsured/Underinsured Motorist Insurance

Cedar Park made news earlier this week when the city declared that it’s adopting a zero tolerance policy towards uninsured motorists — every uninsured motorist stopped for a ticket or involved in an accident will now be given a citation instead of a warning. 

While I applaud the efforts, I also wonder, “Why now?” 

It shouldn’t be newsworthy that Cedar Park  (or Austin or any other Texas city) is actually enforcing the laws designed to prevent uninsured motorists from driving on our roadways.

The fact that it made the news (and almost every news outlet) is a stark warning sign that uninsured motorists are a problem.  In fact, Texas data indicates that 20% of the motorists on the road do not have the state mandated insurance.

It is also a reminder that you need to purchase uninsured/underinsured motorist coverage when you purchase your car insurance.

This coverage protects you  and your family when you’re involved in a wreck with one of these uninsured motorist drivers.

But uninsured/underinsured motorist coverage doesn’t just protect you from wrecks with uninsured motorists.  It also protects you when you’re in a wreck with an underinsured motorist — a driver who has at least the state minimum insurance, but doesn’t have enough insurance to cover the harm caused by all of your injuries.  While twenty percent of Texas drivers don’t have insurance, when they do have insurance, the vast majority only have the state minimum  (currently $30,000).  While that is enough to cover your injuries in a minor wreck, it might not even be enough to cover a trip to the emergency room and certainly not a surgery.

What does that mean in real life?  I’m sitting here looking at a list of auto accident cases that my firm will wrap up in the next month to six weeks once the paperwork is finalized.  Of the five cases on the list, four of them involved a claim against my client’s uninsured/underinsured motorist carrier.  Additionally, the fifth case would have required an uninsured/underinsured motorist claim had the other driver carried a minimum $30,000 policy (instead the other driver was one of those rare drivers with a much larger policy).

That additional coverage is often the difference necessary to make sure that they can get the medical care they need or pay their mortgage or other bills after being off of work.  In short, it’s important.

That’s why I always advise my clients to make sure they purchase sufficient uninsured/underinsured motorist when buying their car insurance.  You spend a lot of money on car insurance to protect others.  But you need to spend a little bit more to protect yourself and your loved ones.

Animal Attacks – Dog Bite Cases: The One Free Bite Rule?

I saw a blurb in the Austin American Statesman that officials took possession of a pit bull today after it was involved in a vicious dog attack

I immediately thought about the “one free bite” rule.  Ask any lay person or non-personal injury lawyer, and everyone knows about the “one free bite” rule.

Except there is no such rule.

In Texas, persons that are harmed by domesticated animals (dogs, cattle, etc.) generally have two potential claims that they can make.  The more common claim is a strict liability claim for injuries caused by dangerous domesticated animals, which means that an animal owner may be liable for any damages caused by the owner’s dangerous animal.

There are generally four things you would have to show to prevail on a strict liability claim:

  1. that the person you’re suing owned or possessed the animal;
  2. that the animal had dangerous tendencies abnormal to its type of animal;
  3. the person you’re suing knew or had reason to know about the dangerous tendencies; and
  4. the animal’s dangerous tendencies were the cause of your injury.  

The “one free bite” rule misconception comes from the third requirement — you need to show that the animal owner knew the animal was dangerous.  Now, certainly, if the animal has a history of biting people, you can use that to prove this.  But just because the dog hasn’t bitten  anyone else, doesn’t let the owner off the hook.

You can prove this requirement by showing other ways that the owner might have known the animal was dangerous.  You might do this by showing that the dog was aggressive, growled, knocked people down, excessively pulled on a leash towards people, etc.  Any of these might be sufficient to prove your claim even when the dog hasn’t yet bitten someone. 

Yes, prior bites by the dog makes proving the case easier, but it certainly isn’t necessary, and there’s no “one free bite” rule. 

The second type of claim is a negligent handling claim.  To win on that claim, you need to show that the owner or possessor of the animal had a duty to keep the animal restrained and that the owner or possessor breached that duty.

There is no requirement here to even know that the animal had  dangerous history.  For example, some of the notable cases using this theory include a case where the defendant left a dog tied up, which an expert testified made the dog aggressive (even though the owner didn’t know it) and a case where the owner didn’t keep a monkey properly restrained.

Again, a history of biting or attacking is helpful, but not necessary to proving your claim from an animal attack or dog bite.

By the way, I use dog bites as the example because they’re the most popular of these claims.  But these claims apply to any time an animal causes injuries.  For example, I’ve used these theories in pursuing cases where a bull got out of a pasture and was involved in a collision with a car and where dogs got out of a fence causing a car wreck.

Posted on: January 23, 2012 |

Sports Lawsuits: RB Stafon Johnson Settles Lawsuit Against USC

In 2009, USC running back Stafon Johnson was working out at USC facilities trying to get ready for the upcoming NFL draft, when a bar carrying 275 pounds fell on his neck, almost killing him.  Johnson subsequently filed suit against USC and the USC strength and conditioning coach.  And the personal injury suit settled this week.

Johnson’s lawsuit was one in an increasing number of suits filed as a result of sports injuries where schools, coaches, trainers and others expose athletes to unnecessary risks, in some cases almost guaranteeing serious injury.

 As I’ve discussed on this blog, a number of former NFL players have filed suit against the NFL and others for failing to warn of the dangers or to protect them from head injuries. 

In Texas, those suits take another predictable form — heat stroke.  While many schools do a good job of protecting their athletes, some coaches insist on pressing the limits and schedule summer or pre-season football workouts in the heat of the day.  Predictably, that kind of conduct can cause serious heat stroke illnesses or even death.  These types of injuries don’t have to happen.  University of North Carolina professor Frederick Mueller, who studies these types of injuries, is quick to point out that all of these heat stroke deaths are preventable with proper precautions, and thus, any death is inexcusable.

These types of injuries aren’t limited to football.  They can occur in any sport where proper precautions or oversite aren’t offered. 

Just remember that the next time you see a sports-related injury, it might be more than an “accident” — it might be a predictable injury caused by someone failing to do their job.

Killer Headphones, Dude! Literally.

A study released today found that the number of US pedestrians killed or badly injured while wearing headphones has almost tripled in the last six years.  Not surprisingly, most of the victims are teens or young adults.

More than half of the deaths involved pedestrians being run down by trains, and many involved incidents where the train or vehicle driver were sounding a horn trying to warn the pedestrian of the potential problem.

“Everybody is aware of the risk of cell phones and texting in automobiles, but I see more and more teens distracted with the latest devices and headphones in their ears,” says lead author Richard Lichenstein, M.D., associate professor of pediatrics at the University of Maryland School of Medicine and director of pediatric emergency medicine research at the University of Maryland Medical Center. “Unfortunately as we make more and more enticing devices, the risk of injury from distraction and blocking out other sounds increases.”

I found the researchers’ explanation of the problem interesting.  Obviously, one of the issues is that the headphones drown out the sounds of the horns and traffic. But this “sensory depravation” problem is exacerbated by distraction.  Researchers call this “inattentional blindness” — where multiple stimuli divide the brain’s mental resource allocation.  This depravation greatly intensifies the problems caused by the inability to clearly hear the oncoming vehicles.

I hope we can learn from the study and from the many deaths the subject of the study.  We need to make a point of educating our young people about these problems.  We need to let our kids know that it’s not safe to walk down the street or ride their bike while wearing headphones.   

Injured? Learn About Your Condition

A constant issue I hear from personal injury clients is that doctors often do a poor job communicating with patients about the patients’ injuries and their course of care.

But with the internet, there are a number of ways for clients to learn about their injuries and treatment themselves.  It is the internet, so some of the information is horrible, but much of it is quite good.

One source that I have found helpful is Up To Date (www.uptodate.com). 

Up To Date is an online medical encyclopedia.  It is written and edited by doctors, updated frequently, and footnoted very well so you can follow up on studies.  It is designed to be used by medical professionals — hospitals, clinics, doctors, etc.  It is set up so that it provides basic information about conditions and then answers many of the most popular clinical questions about conditions.  When you look at the website, you’ll see that it receives good reviews from doctors and medical facilities from all over the world. 

But it also markets to patients.  Up To Date currently has a subscription option where you can have unlimited access to the website for 7 days for $19.95 or 30 days of unlimited access for $44.95.

If you have a condition that you want to learn more about, you might consider paying these fees so that you really understand your condition and your future.

Cyclist Loses Life in Accident with a Fuel Tanker

Some accidents happen in odd ways and end in tragedy. This reported case devastated a young man’s family.

The 26-year-old man killed in this accident was out riding his bicycle on a nice day. He was an experienced rider, but that did not help him on that fateful day. The man had nowhere else to go but under a fuel tanker to try and avoid an accident. He would have made it, had the tanker not run over him.

How did something like that happen? The man was riding his bike south in the northbound lanes on a busy avenue. Alongside him was an 18-wheeler from a local fuel company, also traveling south, just about parallel to the bike rider. The trucker suddenly turned into the man’s path as he went to enter a parking lot.

There was nothing the biker could do but try and stop. He did not succeed, and his bike slammed into the tanker, sliding under the truck. A wrongful death? Yes and the young man’s family filed a lawsuit asking for compensation for medical and funeral expenses, pain, suffering and the loss of companionship of their son.

Was there negligence involved in this case? Yes, the trucker turned into the man’s path without taking due care to check his mirrors. After all, he had just been riding side by side with the cyclist minutes before he was killed. Was there something going on in the truck’s cab? There may have been, and only an investigation will tell. The trucker may have been texting, talking on a cell phone or leaning over to pick up papers on the floor of the cab.

What is painfully clear is that the family left behind is beside themselves with grief. Their son just went for a bike ride. They did not expect that they would never see him alive again. Filing a wrongful death lawsuit is one way to bring closure and move forward with their lives. Often people think wrongful death lawsuits are about revenge. They are not. They are more often than not about a family wanting to make sure a similar incident does not happen to someone else.

The family’s pain and shock often translates into concern for the welfare of others, not their own financial gain. In many cases such as this, though, there is often insurance money on the table, and the trucking company would be insured. Working in partnership with an experienced Austin personal injury lawyer would assist the family in facing the challenges to come as their case makes its way through the courts.

Never hesitate to contact an Austin personal injury lawyer if you find yourself involved in a situation like this. You need to know your legal rights, what constitutes a wrongful death, how compensation is awarded, and what to expect while you are waiting for a judgment.

Brooks Schuelke is an Austin personal injury attorney with Perlmutter & Schuelke PLLC. Contact an Austin injury lawyer at Civtrial.com or (512) 476-4944.

Head Injury Therapy — Writing A Cookbook?

Today’s Austin American Statesman had the inspiring story of Ruby Dee Phillipa.  Ms. Phillipa was a former restaurant owner turned rockabilly musician who suffered a head injury in a 2008 scooter crash.

As part of her therapy, her doctors told her that she should find tasks that helped her brain relearn how to access common words and phrases.  For Ms. Phillipa, that meant writing down the recipes that she had been using for so long.  What she didn’t know was that those tasks would ultimately lead to a cookbook, Ruby’s Juke Joint Americana Cookbook.  (You can buy the book at Rubysjukejoint.com, Amazon.com , or at BookPeople in Austin.)

I think her path has important lessons for all head injury victims about the work necessary to make a recovery.  Too often, I see victims of head injuries who have been told by doctors or others that they’ll “get better with time.”  Sometimes, that’s correct.  But in many instances, getting better requires hard work and rehab.  Sometimes it’s work you can do on your own — like writing familiar recipes.  And sometimes it’s formal cognitive therapy — work that you have to do with the aid of a trained assistant. 

If you’re not getting better after waiting it out, you need to go back to your doctor and tell them that, and ask for help.  Ask them to provide pro-active things you can do, whether informally or through formal cognitive rehab.  In many instances, waiting it out isn’t a solution, and you shouldn’t just live with your condition.  You need to be working wth your doctor as a team to make sure you’re improving as much as you can.

Perlmutter & Schuelke, PLLC maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke


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