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“He smiles at the young soldiers
Tells them it’s all right
He knows of their fears in the
Forthcoming fight
Soon there’ll be blood and many will die
Mothers and fathers…
Back home they will cry….”
By Eric Burdon[1]
As a lawyer who has been practicing near the Camp Pendleton Marine Corps Base in San Diego, California, I have assisted many returning combat veterans. I have seen the damaging effects war has on our service men and women, and have always done everything I can to make sure they get what they deserve if they come to me for help.
As we know from the popular media, our soldiers are exposed to improvised explosive devices (also known as IEDs or roadside bombs), rocket-propelled grenades (RPGs), and other highly injurious phenomena common to battle. Our service men and women often return from battle with shrapnel wounds, hearing loss, and a variety of brain injuries. When a soldier is re-injured while riding a bicycle (or otherwise), I must face these conditions when asking a jury to award for damages.
Oftentimes, the first question an insurance adjuster asks is "why should we pay for this soldier's old injuries?" And the law points to an answer: that damages may be awarded for the aggravation of a pre-existing condition or disability if the physical or emotional condition is made worse by wrongful conduct. Many soldiers take up recreational sports to help balance their lives upon return, and accidents can prevent these soldiers from finding the equilibrium that drove them to sports in the first place. (For more information on how a new injury may affect a soldier's lifestyle see my article on "Recovering Money for an Athlete's Loss of Enjoyment of Lifestyle.)
Furthermore, the law supports rewarding damages in the case of an aggrivation of a pre-existing condition if the injured soldier/athlete is an unusually susceptible plaintiff, or "eggshell plaintiff." Because soldiers are often fragile due to Post Traumatic Stress Disorder (PTSD) and other battlefield injuries, recovery of damages is allowed even if a healthy person would not have suffered a similar injury. The law allows for recovery from an "eggshell plaintiff" because the wrongdoer takes the victim as he finds him, even if the pre-existing condition makes the plaintiff more susceptible to injury.
So how do you prove an aggravation of a pre-existing condition?
There are a few methods that help make that connection, let's start with the easiest: objective injuries. Objective injuries, like a re-injured shoulder are fairly easy to show because oftentimes a new x-ray or MRI image is enough to prove the aggravation of an injury, and because people are usually quick to understand the implications of objective injuries. A common objective injury I've seen in soldiers is an aggravated brain injury. A soldier could easily aggravate an old brain injury by falling off his or her bike, even while wearing a helmet. Thankfully, modern diagnostic tools and medical science is evolving to help detect even the slightest changes in the brain, making identificatio of a re-injured brain more likely than ever before.
Subjective injuries, unlike thier fairly straightforward counterparts, are a little more difficult to prove, but are equally as important. One of the most common subjective injuries for a soldier, PTSD, can cause loss of sleep, anxiety and depression. As Lt. Colonial Gregory Price (Western District USMC-Wounded Warrior Program) says, "sports offer a healthy outlet for returning combat soldiers. Instead of sitting around and dwelling on limitations, the soldier realizes that there is still a lot they can do, as opposed to the opposite...sports help soldiers to burn off nervous energy and anxiety and help them sleep through the night. This, in turn, helps soldiers to cope with their depression, as does the camaraderie of fellow sports person." so any interruption of these athletic outlets could have a serious impact on a soldier's mental and emotional state. " Lt. Col. Price, a repeat Hawaiian Ironman World Triathlon Championship Finisher, says that "healthy people recover quicker and eat better too." (For more information on PTSD please see my article "The Walking Wounded and PTSD” at www.911law.com.)
It is important to understand the extent to which wounded warriors benefit from sports-related activities such as bicycling. This understanding can go a long way in helping make the legal connection between a soldier's old and new injuries, and is paramount when asking for a damages award.
References
(For a discussion on recovering for the loss of enjoyment of life, see my article entitled “Recovering Money for an Athlete’s Loss of Enjoyment of Life.”)
1. See section 3927 of CACI Jury Instructions entitled,”Aggravation of a Pre-existing Condition or Disability”.
2. See section 3928 of CACI Jury Instructions entitled, “Unusually Susceptible Plaintiff”.
3. Roland R. Lee, M.D. , Neurologist, Department of Radiology, UCSD/VA Medical Center
[1] Eric Burdon is a British rock-blues singer. He was born in 1941 and was the lead vocalist in many bands, including the Animals. He is reported to be still touring.
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The information in this article is for general information purposes only. The focus of this article is on California Law. You should contact an attorney in your state for case specific advice, as details of the law and procedural requirements vary from state to state. Nothing in this article should be taken as legal advice for any individual case or situation. This information is not intended to create an attorney-client relationship; and the receipt, reading, listening, or viewing of this content shall not constitute an attorney-client relationship. Nothing in this article shall be construed as a warrant, promise, or guarantee about the outcome of your case or any other matter. This information may contain personal impressions or statements of opinion on a subject that do not apply in your case. Further, statements of law reflect the current state of the law at the time of writing and/or recording, and may not reflect subsequent changes in the law.