Oregon Personal Injury Lawyer Blog

The National Football League is posting concussion information in locker rooms this season. It's about time that everyone acknowledges that getting "your bell rung" is a big deal because brain injuries occur even without loss of consciousness. Oregon is one of three states with laws on concussions in high school sports. ORS 336.485 requires coaches to receive training every year on the symptoms of concussion and proper treatment. It also prohibits coaches from playing students with concussion symptoms.

Hopefully, the NFL poster will bolster Oregon's law by making it even easier for coaches and parents to do the right thing. The poster lists the stark facts that concussions are traumatic brain injuries that change your brain function, can change your personality, and can forever change the lives of you and your family.

The NFL poster notes that a concussion is not the type of injury a player should "play though," because the grave consequences of repeated brain injuries before the first one is resolved. Symptoms of brain injury are many and can be found here.

So, for parents, coaches and others, the NFL poster is a great opportunity to teach young people what to look for and what to do when it comes to head injuries. This is important not only for football players, but also soccer players, hockey players, and snowboarders and every other person who plays a rough sport.

Jeff Merrick, Oregon Trial Attorney
www.pediatriclaw.com
503-665-4234

Window Safety Week highlights the fact that, like clockwork, children fall from windows every year when the weather warms. Oregon's trauma registry records about 50 window falls per year. Other children are luckier; they fall and do not suffer significant trauma. Nationally, the number of children suffering traumatic injury from window falls is in the thousands per year. The most vulnerable are children under age seven, who suffer brain injury and death from window falls.

These tragedies are as preventable as they are predictable.

Window guards, screens & mesh save lives.

For decades certain jurisdictions have required window guards. The laws work, saving lives and tragedies. As of February, 2010, Oregon's building code addresses some aspects of window falls, but safety professionals know that it is not enough. (Previously, I wrote about the new Oregon regulation.)

With the spread of these laws, manufacturers are competing to produce safety devices that look better than the old bars. The latest product, the window guard mesh, looks more like a decorative curtain.

Even inexpensive window stops can save lives, so long as parents do not open the window wider than their child's head.

Conclusion.

Window Safety Week raises the awareness of this safety issue. We know that the tragedy of brain-injured and dead children is as predictable as it is preventable. Please help spread the word to help families in Oregon and Washington.

The authors of a new study of brain-injured children found that doctors most often used the term "concussion" and not "traumatic brain injury." The authors theorize that the doctors use the "concussion" label to minimize the worry of parents. However, the lead author, Carol A De Matteo, believes that the concussion label misleads parents and coaches, which could cause inferior follow up precautions and care. Oregonians should know that a concussion IS a traumatic brain injury and should act accordingly.

The Canadian study noted that there is no universal agreement on how to grade concussions. There are 6 different categories of concussions plus 8 different grading scales. Doctors use "concussion" to describe brain injuries ranging from (1) a brain injury where the child or teenager returns to preexisting levels of functioning to (2) severe, permanent brain damage or even death. So, Oregonians should know that the "concussion" label does not mean your child is necessarily going to be okay.

The authors fear that a diagnosis of concussion may affect a parent's decision on how soon to return the child to school, or even sports. When the child has some symptoms associated with brain injury, the symptoms might be ignored or pooh-poohed, because everyone thinks the person is "over" the concussion. Consequently, the child might not receive the help he needs in school. In Oregon a proper diagnosis and classification of symptoms might be critical determining whether the school must work on an Individualized Educational Program (IEP).

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

For years, Oregon children have been killed and have suffered Traumatic Brain Injury because they fell from windows. Second story windows are high enough, as I sadly learned while suing a landlord and Portland property management company. In the Portland area, alone, more than a dozen children go to hospitals for window fall injuries each year. Oregon Trauma Registry data indicate a total of close to 50 child window fall injuries per year.

The legal cases I had involving children falling from windows caused me to lead a legislative effort to pass a law requiring landlords to offer window guards to tenants with small children. That law did not pass, but a new Oregon building code is a step in the right direction.

The new regulation became effective February 1, 2010. It is Oregon Residential Specialty Code § R613.2. It applies to windows more than 72 inches above the ground below and offers two protections:

• First, windowsills must at least 24 inches above the floor.
• Second, the windows may not open more 4 inches unless the windows a provided with window guards that meet a certain national standard, called ASTM F 2090-08.

This is an important first step for a couple of reasons. First it acknowledges the serious and continuing problem of children falling from windows. Every year, when the weather gets hot, kids start dropping out of windows. You can count on it.

Second, the window guard requirement might cause stores to stock window guards. Right now, guards are very hard to find. You can see how window guards work at the Legacy Children's Hospital Safety Store, which is borrowing my own window guard displays. The knowledgeable and kind women who staff the store can help you order window guards and other safety devices.

I trust the word will get out to residential homebuilders: Make places safer to prevent tragedy!

Jeff Merrick, Oregon Trial Attorney
503-665-4234

The above is not legal advice. I cannot give you reliable advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

I represented a Lake Oswego, Oregon family affected by traumatic brain injury to the wife / mother. The impacts on her were devastating. The impacts on the husband and daughter were life changing, also.

The current issue of journal Brain Injury reports a study of the quality of life and emotional distress of primary relatives of those who suffered brain injuries and were treated at Copenhagen University Hospital. The study confirmed what professionals who work with families already knew: the closest relatives of brain-injured patients suffered a severe impairment in their quality of life. The relatives suffered significantly more symptoms of depression and anxiety. (Anne Norup, Emotional distress and quality of life in relatives of patients with severe brain injury: The first month after injury.)

Under Oregon law, spouses of brain-injured people may sue for "loss of consortium." Oregon juries are told that they may award monetary compensation to the spouse for the loss of "spousal services, society and companionship." Only husbands and wives have a claim for loss of consortium in Oregon, not children or parents.

It is important to remember the impacts on the family of those who acquire brain injuries. They need help, too, as they cope with new circumstances they could never have anticipated. Family members might find helpful Mayo Clinic's Guide to Brain Injury for Family Members. Oregonians can also look for support groups in their area by checking the listings in the newsletter published by the Brain Injury Association of Oregon, the latest issue of which is posted on their website.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

The above is not legal advice. I cannot give you reliable advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

In Oregon, if the employer pays for workers' compensation insurance, then the worker may not sue the employer when he or she is hurt on the job. This "exclusive remedy" provision does not apply if either (a) the employer does not have workers' compensation coverage or (b) someone else -- or something else -- was at fault.

For example, we sued a printing press manufacturer for making a dangerous machine when a worker suffered a severe arm injury. The manufacturer was not the employer, so it was not immune from suit under Oregon law. A more typical example is someone hurt in a car or truck accident while on the job. The worker can sue the other driver that caused the wreck.

But there are special issues to be aware of involving who may sue and who gets the money.

If the workers' compensation insurer pays benefits, then it has a right to get paid back out of any lawsuit proceeds. In fact, the insurance company can force you to decide whether to file a lawsuit. If you do not sue, then the insurance company can sue in your name.

There's a big difference to Oregon workers depending on whether the worker sues or the insurance company files the lawsuit.

If the insurance company sues in your name, then it controls the litigation. It decides when to settle. If the insurance company sues and settles the case, then it gets paid before the worker. The formula is that the insurer gets paid in full before the worker gets even one penny.

If the injured worker sues, then the formula for distributing the money is very different. First, the costs of the lawsuit are paid, including the attorney fees. Next, the worker receives 1/3 of the balance. Only then does the insurance company get paid back. So, if the worker sues, he or she jumps ahead of the insurance company. If there is still money left after paying back the insurer, the balance goes to the worker. The key Oregon law is ORS 656.576 to 656.596.

Another consideration is this. If the insurance company sues, will it really care whether the worker receives any money? Will it settle too cheaply, making sure it gets repaid and not worry about winning monetary compensation for your disability?

So the lesson? If you are seriously injured at work because of someone other than a coworker or something like a dangerous machine, then it is in your interest to sue and not let the insurance company file a lawsuit in your name.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

The above is not legal advice. I cannot give you reliable advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Oregon can be a winter playground. Mt. Hood & Mt. Bachelor trails are great for cross country skiing and snowmobiling. But for one Oregon woman, her family outing turned into a life-changing event.

The other guy was test running his family's snowmobiles. On his third run, he sped about 60 miles per hour on a snow covered forest road outside of a popular snow park. When he zipped around a blind corner, he narrowly missed the husband, but came face-to-face with a teenage girl, who had mom on the back of her snowmobile.

It ended up being a dangerous game of "chicken." Both drivers turned the same way, they collided, and my client "flew like superman" off the snowmobile. Despite wearing a helmet, my client acquired a mild brain injury. Twenty years earlier, she suffered a traumatic brain injury, from which she recovered. But the prior TBI made her much more vulnerable to brain injury from her snowmobile collision.

She and her husband tried to settle by themselves. The other driver's insurance company pooh-poohed her injury and said that it was the daughter's fault, at least 50% worth. So they had to hire me.

Most important for any client is to get proper medical care, and I referred my client to an excellent place for diagnosing and coping with head injuries. We sued the other driver and fought hard. After depositions, we asked the court for permission to seek punitive damages, because we believed the other driver was reckless in flying around a blind corner at 60 mph (or more?). The court granted the motion.

Initially, the lawyer for the insurance company thought the case should settle for $30,000. By the time we worked up the case for trial, they paid the full policy limit of $300,000.

The moral of the story? 1. Be careful of dangerous snowmobile drivers even enjoying the weekend. 2. Be careful of insurance companies who do not want to pay what they should.

If you or your child has suffered a head injury, you ought to consider the signs and symptoms of brain injury. Here's a short list of brain injury symptoms from the CDC and a much more comprehensive resource on traumatic brain injury from the State of Washington.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

Oregon citizens diagnosed with Mild Traumatic Brain Injury (MTBI) know that the effect on them is not mild. When Oregonians suffer head injuries, too often, it takes time to properly diagnose their brain injury. Then, they have to fight for insurance benefits for the treatment, services, and money they need. Too often insurance claims examiners - and even general doctors - do not understand the problems or believe the injured person. Fortunately, yet another peer-reviewed study supports the truth of what these Oregonians experience.

People with brain injuries suffer from mental fatigue. Even on good days, those with brain injuries often hit a wall. Then, words and concepts begin to wash over them. Things just do not sink in. The brain runs out of gas.

Also, even brain injuries categorized as "mild" result in slower information processing. Think of dial up Internet before high-speed cable.

You can't see this on an x-ray or MRI. Science has not developed the tools to see this process, so the actual mechanism is not 100% understood, even though people with head injuries, their loved ones, and all professionals who help those with brain injuries know the phenomena are real. Although we cannot see it, sophisticated testing is helping us understand what people with traumatic brain injury must endure and cope with.

The December 2009 issue of Brain Injury reports the results of tests to compare those with mild traumatic brain injury, traumatic brain injury, and those without brain injury. The article, Mental fatigue and impaired information processing after mild and moderate traumatic brain injury, reports the testing people for mental fatigue, information processing speed, working memory and attention issues. The results: (1) Those with MTBI or TBI reported statistically significantly more deficits from mental fatigue and related symptoms than those without any BI. (2) People with MTBI or TBI had measurably and significantly decreased information processing speed compared to those without any BI. (3) There was a difference in divided attention, but less so. (4) This study found no difference on working memory.

Study authors: Birgitta Johansson; Peter Berglund; Lars Rnnbck. Journal: Brain Injury, Vol. 23, Issue 13 & 14, 12/2009, pp.1027 - 1040.

Our hope is that as the more and more studies publish, (1) primary care physicians will be quicker to diagnose MTBI, and (2) insurance companies will be more willing to pay for the necessary care. I'm more hopeful about (1) than (2).

Jeff Merrick, Oregon Trial Attorney
503-665-4234