Articles Posted in Injury Law

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Nutt was hit and killed by a U.S. Army soldier driving an Army truck in 1983. His family filed a claim under 28 U.S.C. 2674, the Federal Tort Claims Act. A 1985 Agreement provided that the government “agrees to purchase annuities which will pay:” $60,000 per year to Cynthia; lump-sum payments on specified anniversaries to Cynthia; lump-sum payments on specified anniversaries to James; plus $240,000 to Cynthia and a payment to the Nutts’ attorneys. The Agreement provided that “[t]he payments by the United States set forth above shall operate as full and complete discharge of all payments to be made to and of all claims which might be asserted.” The government purchased a structured annuity ELNY. ELNY went into receivership in 1991. In 2011, the New York State Liquidation Bureau informed the Nutts that their benefit payments would be reduced. In 2013, they began receiving payments reduced to approximately 45% of their expected benefits. They were informed that, as of 2015, they would not be receiving the anniversary payments. The Nutts alleged breach of the agreement. The Federal Circuit affirmed dismissal, finding that the government “was not obligated to guarantee or insure that annuity; its obligation ended at the initial purchase of the ELNY annuity.” View "Nutt v. United States" on Justia Law

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A.M. was born in1993, and was raised in a predominately Polish-speaking household. At A.M.’s 15-month routine examination, the pediatrician noted that A.M. was a “well child.” When A.M. was two years old, his pediatrician noted that A.M. used 4 to 10 words and walked independently. When A.M. was four years old, he received his second MMR vaccination. Days later, A.M. returned to the office with a sore throat. Later episodes concerned limping and limited language skills. A doctor gave A.M. a provisional diagnosis of “Ataxia/Unsteadiness and Developmental Delay.” An MRI showed “diffuse white matter demyelination which is consistent with demyelinating process most likely some form of leukodystrophy.” By 2011, A.M. was wheelchair-bound and unable to care for himself. In 2012, at age 18, A.M. saw a specialist who opined that “[t]he finding of apparently normal development followed by a sudden loss of abilities following an insult with severe demyelination is suggestive of vanishing white matter disease. This often presents during childhood with ataxia following infection or fright.” A special master denied compensation under the National Childhood Vaccine Injury Act, 42 U.S.C. 300aa, finding that the Miliks failed to prove by a preponderance of the evidence that a vaccine caused A.M.’s conditions. The Claims Court and Federal Circuit upheld the denial as not arbitrary, capricious, an abuse of discretion. View "Milik v. Sec'y of Health & Human Servs." on Justia Law

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Hudgens injured his right knee while serving on active duty in the U.S. Army. In 2003, Hudgens had partial knee replacement surgery; in 2006, he sought VA benefits. The Board of Veterans’ Appeals denied him a disability rating of greater than 10 percent for degenerative joint disease in the right knee and denied him entitlement to a compensable disability rating for instability in the right knee for a prior time period. The Veterans Court vacated those decisions; held that Hudgens was not entitled to compensation for his prosthetic knee replacement under 38 C.F.R. 4.71a, Diagnostic Code 5055; and remanded for determination of whether his knee replacement could be rated by analogy to that code. The Federal Circuit reversed, holding that Hudgens may be compensated under DC 5055 based on his partial knee replacement. Hudgens’s interpretation of DC 5055 is consistent with the beneficence inherent in the veterans’ benefits scheme and with the majority of Board decisions that have interpreted the regulation. View "Hudgens v. McDonald" on Justia Law

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Eilise was born in 1996 and had problems with gross motor skills and language development. After therapy, Eilise showed dramatic improvement. In 2001, Eilise received three vaccinations, including her second dose of the measles, mumps, and rubella vaccine. Five days later, Eilise’s brother witnessed her arching her back, thrusting her head back, rolling her eyes, and jerking. He did not know what was happening. Her parents, who did not witness the seizure, noted that Eilise was feverish and lethargic. Eilise had a grand mal seizure at school. She was taken to a hospital. She had another seizure there. Eilise’s MRI results were generally normal, but her EEG results were “consistent with a clinical diagnosis of epilepsy.” She continued to suffer seizures until she started a ketogenic diet. Her parents filed suit under the National Childhood Vaccine Injury Compensation Program, 42 U.S.C. 300aa, alleging that Eilise suffered from autism as a result of her vaccinations; they later amended to allege, instead, that Eilise suffered from a “seizure disorder and encephalopathy.” The Claims Court affirmed denial of her petition. The Federal Circuit vacated: in certain cases, a petitioner can prove a logical sequence of cause and effect between a vaccination and the injury with a physician’s opinion where the petitioner has proved that the vaccination can cause the injury and that the vaccination and injury have a close temporal proximity. View "Moriarty v. Sec'y of Health & Human Servs." on Justia Law

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Karen Dixon, recently substituted as appellant for her deceased husband Donald, and appealed a Court of Appeals for Veterans Claims (Veterans Court) decision dismissing her appeal based on a nonjurisdictional timeliness defense that Secretary of Veterans Affairs Robert McDonald waived. Mr. Dixon was diagnosed in 2003 with sarcoidosis of the lungs and transverse myelitis. He filed a claim with the Department of Veterans Affairs (VA) seeking benefits for his sarcoidosis, which he alleged was connected to his service. A VA regional office denied Mr. Dixon’s claim, and the Board of Veterans Appeals affirmed. Acting pro se, Mr. Dixon filed a notice of appeal with the Veterans Court sixty days beyond the 120-day filing deadline set out in 38 U.S.C. 7266(a). The Veterans Court denied Mr. Dixon equitable tolling. He obtained pro bono counsel and filed a request for reconsideration of this denial, but the Veterans Court denied that request too. Mr. Dixon appealed, but then he died of his medical conditions while his appeal was pending. The Federal Circuit reversed because the Veterans Court’s denial of an extension of time had effectively denied Mr. Dixon’s new pro bono counsel access to evidence he would need to prove his claim. On remand, the Veterans Court substituted Mrs. Dixon and requested briefing from the parties on whether equitable tolling excused Mr. Dixon’s late filing. The Secretary responded by waiving his objection. Because the Veterans Court did not have the sua sponte authority to grant the Secretary relief on a defense he waived, the Federal Circuit Court of Appeals reversed the dismissal of Mrs. Dixon’s appeal and remanded for consideration on the merits. View "Dixon v. McDonald" on Justia Law

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Maurice Sullivan appealed a Court of Appeals for Veterans Claims' judgment which affirmed a decision of the Board of Veterans’ Appeals conclusion that the Department of Veterans Affairs (“VA”) had satisfied its duty to assist Sullivan with a request to reopen his claim. Sullivan filed a claim for service-connected benefits for back and neck injuries. He sought treatment in 1984 for back and neck pain at a VA medical facility in Asheville, North Carolina, but that the doctors found nothing wrong with his back and neck. The VA denied Sullivan’s claim, finding that the medical evidence of record did not establish service-connection for his injuries. Ten years later, Sullivan submitted new evidence and sought to reopen his claim. The Board denied the request to reopen, finding the newly submitted evidence was not material. The Board also determined that the VA had satisfied its duty to assist Sullivan in obtaining identified and available evidence. After review, the Federal Circuit Court of Appeals found that the Veterans Court relied on the wrong legal standard in affirming the Board’s determination that the duty to assist was satisfied. Accordingly, the Court reversed and remanded for further proceedings. View "Sullivan v. McDonald" on Justia Law

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Wade Thompson appealed a Court of Appeals for Veterans Claims' judgment which affirmed a decision of the Board of Veterans’ Appeals denying Thompson a disability rating in excess of 20% for degenerative disc disease of the lumbar spine prior to March 8, 2011. The Veterans Court’s decision was based in part upon its interpretation of 38 C.F.R. 4.40 in light of section 4.71a. Thompson’s appeal raised a question of first impression for the Federal Circuit: whether section 4.40 provided a basis for a rating separate from section 4.71a. After review of the applicable statutes, the Court concluded "no" and affirmed the Veterans Court. View "Thompson v. McDonald" on Justia Law

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Between 2001 and 2004, Nitek Electronics, Inc. entered thirty-six shipments of pipe fitting components used for gas meters into the United States from China. U.S. Customs and Border Protection (“Customs”) claimed that the merchandise was misclassified and issued Nitek a final penalty claim stating that the tentative culpability was gross negligence. Customs then referred the matter to the United States Department of Justice (“Government”) to bring a claim against Nitek in the Court of International Trade to enforce the penalty. The Government brought suit against Nitek to recover lost duties, antidumping duties, and a penalty based on negligence under 19 U.S.C. 1592. Nitek moved to dismiss the case for failure to state a claim. The court denied dismissal of the claims to recover lost duties and antidumping duties but did dismiss the Government’s claim for a penalty based on negligence, concluding that the Government had failed to exhaust all administrative remedies under 19 U.S.C. 1592 by not having Customs demand a penalty based on negligence, instead of gross negligence. The Federal Circuit affirmed, holding that the statutory framework of section 1592 does not allow the Government to bring a penalty claim based on negligence in court because such a claim did not exist at the administrative level. View "United States v. Nitek Elecs., Inc." on Justia Law

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K.P. , born in 2004, exhibited no apparent signs of disability for several months, but was then referred to an infant development service. Extensive testing revealed that K.P. suffered significant delays in motor skills. His cognitive skills were within normal limits. K.P. experienced rashes, later identified as a symptom of erythema multiforme, and ear infections. At his one-year well baby visit, K.P. received the measles-mumps-rubella, pneumococcal, and varicella vaccines. He then had a fever and did not nap or eat well. After visits to multiple medical specialists, K.P. was diagnosed with an unspecified mitochondrial disorder, likely present at birth. He now lives in a state of severe neurological disability. He has “no purposeful movements” and breathes with a ventilator. Seeking benefits under the National Childhood Vaccine Injury Act, 42 U.S.C. 300aa, his parents alleged that K.P. sustained a permanent brain injury as a result of the vaccines. Their expert testified that K.P.’s underlying mitochondrial disorder prevented him from coping with the oxidative stress from the vaccines. On remand, the special master accepted that the expert had presented a plausible medical theory, but found that K.P.’s condition did not deteriorate as predicted by that theory. The Claims Court disagreed and awarded compensation. The Federal Circuit affirmed. The parents’ burden was to show that K.P.’s mitochondrial disorder was significantly aggravated by the vaccines, not to rule out every other potential cause. View "Paluck v. Sec'y of Health & Human Servs." on Justia Law

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Navarro served in the Army from 1958-1960. He is not a combat veteran, but served near the demilitarized zone after the Korean War. In 2005, Navarro sought service connection for PTSD. He established the condition under 38 C.F.R. 4.125(a). He provided testimony about hearing shots, seeing injured soldiers, and hearing noises while on night guard duty. The Board of Veterans’ Appeals denied the claim in 2008. While appeal was pending, the VA amended 38 C.F.R. 3.304(f) with respect to evidence required to establish claimed in-service stressors for PTSD claims. The Veterans Court vacated. On remand, the Board found that revised 3.304(f) did not apply because Navarro had been diagnosed by a therapist, not a “VA psychiatrist or psychologist” and that Navarro was not entitled to a VA medical examination because “none of his claimed stressor events have been sufficiently corroborated by credible supporting evidence and his account of having a continuity of PTSD symptomatology since service is not deemed credible.” The Veterans Court affirmed. The Federal Circuit remanded for determination of whether Navarro’s “claimed stressor[s are] consistent with the places, types, and circumstances of the veteran’s service.” If so, he is entitled to examination by a VA psychiatrist or psychologist. View "Sanchez-Navarro v. McDonald" on Justia Law