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RECOVERING DAMAGES FOR VETERANS: The Benefits Of
Sport For Our Military Warriors
"He smiles at
the young solders,tells
them it's alright.
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 aggravation 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
identification of a re-injured brain
more likely than ever before.
Subjective injuries, unlike their
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”.
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
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[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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