Upper Big Branch Memorial - Bailey Javins & Carter Remembers

Gone but Not Forgotten: BJC Remembers the Fallen Workers from the 2010 Upper Big Branch Mining Disaster

On April 4, 2010, 29 coal miners working in the Upper Big Branch mine were killed in an explosion. This tragic disaster turned out to be the worst coal mining accident in four decades.

An independent investigation found that the coal company that operated the mine was directly responsible for the blast. The company was operating the mine in a horribly illegal manner, and they were issued 369 citations for flagrant safety violations that contributed to the explosion.

On the 11-year anniversary of the Upper Big Branch mining disaster, we at Bailey, Javins, and Carter honor the miners who lost their lives that day. Each day, tens of thousands of coal miners go to work in inherently dangerous conditions in order to provide for their families. At the very least, their employers have a duty to take all reasonable measures necessary to ensure a safe work environment. Had the coal company lived up to their duty to protect their workers, this disaster would not have occurred.

Our firm was privileged to represent several of the families of the fallen workers from the Upper Big Branch disaster, and we took a lead role by recovering multiple times more than the $3 million per family the coal company was offering. We know that no amount of money can replace those workers who were lost because of this disaster, but by holding the coal company and others like them fully accountable when they engage in such egregious conduct, we can help ensure that West Virginia employers finally start putting the safety of their workers ahead of their bottom line.

can personal injury cases be reopened?

Can My Personal Injury Claim be Reopened after I Have Already Settled?

You got injured in a vehicle crash that was caused by someone else. You had to miss work for an extended period of time, and you have racked up some doctor and hospital bills as well. Finances are getting tight, and the daily pain from your injury is starting to take both a physical and emotional toll.

In the midst of all this, the last thing you want to do is go through a long and complicated insurance claim process, so when the insurance company calls to talk about a settlement, you are ready to listen. They give you an offer that seems lower than what you believe you should get, but because you want to put this incident behind you and move on, you decide to accept the offer.

As time goes by, you notice that your symptoms are getting worse and not better. You go back to the doctor and you are sent for more testing. The additional tests reveal that your injuries are more extensive than you originally thought, and it may be quite a bit longer before you are able to go back to your job. At this point, you wonder if it is possible to reopen your personal injury claim.

The short answer to this question is, usually “no”. When you receive a personal injury settlement, you are typically required to sign a liability waiver that prohibits you from taking any further legal action against the at-fault party for the same incident. That said, there are a few limited circumstances in which you might still be able to pursue compensation for a personal injury after you have received a settlement.

When Can you Reopen a Personal Injury Claim after a Settlement?

Here are some circumstances in which it may be possible to get your personal injury case reopened once you have settled:

  • Unsigned Agreement or Clerical Errors: Maybe you are still at an early stage of receiving your settlement where you have not yet signed the paperwork, or the paperwork contains a significant technical error. For example, the settlement amount is supposed to be $53,000 and it says $35,000. In either of these situations, it might still be possible to get out of the settlement and reopen your claim.
  • Fraud: If, for example, the insurance company for the at-fault party acted in bad faith by defrauding you or misrepresenting information, then you might have a possible basis for reopening the claim. This is a very difficult legal avenue to pursue, however, so make sure you speak with an experienced attorney before considering this route.
  • Other At-Fault Parties: In some situations, there are multiple parties that may have contributed to your injuries. For example, if you were hit by a commercial truck, you may be able to file a claim against the driver, the company that employs them, and the shipping company that overloaded the truck, which caused it to crash. Or if you got hurt at work because of a faulty piece of machinery, you might be able to file a product liability claim against the manufacturer, distributor, or other parties within the product’s supply chain.

What to Do Before Accepting a Personal Injury Settlement Offer

Taking a settlement for your injury seriously limits your legal options, and you should not take such an offer without a great deal of thought and consideration. First of all, be sure you have sought appropriate medical treatment and that you have gone in for any tests and exams that your doctor has recommended. Also be sure to follow through on your doctor’s orders and any prescribed treatments with your recovery plan.

Second, never agree to a settlement without first talking with an experienced personal injury lawyer. The effects of your injury may go far beyond just the direct monetary losses like medical bills and lost earnings. There are intangible losses to consider as well, such as pain-and-suffering, psychological distress, and diminished quality of life.

An attorney will be able to thoroughly review your case, consider all the ways the injury has affected your life, and advise you of your legal rights and options. This way, you will be able to make the most informed decision on whether or not it is in your best interests to take the settlement, or if you should go a different route.

Bailey, Javins, and Carter L.C. is Here to Help

If you or a loved one suffered injury because of the negligence or reckless actions of another party, you deserve to be fully compensated. But if you have already taken a settlement, you may not have any further legal recourse. Still, it never hurts to have your case looked at by one of our attorneys. For your free consultation and case assessment, message us online or call our office at (800) 497-0234 or (800) 296-6979.


Construction Accident Kills One Man and Injures Another

Workers Killed and Injured at Old Mason County Power Plant

A worker for Frontier Group of Companies has died after an incident on Monday night at an old power plant in Mason County, West Virginia. Two workers were in the process of dismantling and salvaging materials at the former Phillip Sporn Power Plant in New Haven, WV (in preparation for the demolition of the plant) when a structure collapsed prematurely. Both workers were taken to the hospital, one died of his injuries and the other remains hospitalized.

The old Mason County Power Plant has been in the process of being dismantled for quite some time, and it is expected to be demolished in the very near future. An investigation into the incident is currently underway.

Operating heavy equipment while dismantling steel structures is extremely dangerous work, and in some ways, this type of work is actually even more hazardous than constructing the plant. While we do not yet know the details of how this happened, this tragic incident underscores the need for companies to adhere strictly to government safety standards and implement best safety practices to help ensure that their workers are fully protected. Additionally, when dismantling such structures, proper engineering design and planning is necessary to ensure structural integrity during the process. Negligent engineering or failure to follow properly engineered dismantling designs and plans are sometimes the cause of needless injuries and deaths.

At Bailey, Javins, and Carter, our hearts go out to the family of the worker who was killed at the power plant, as well as the surviving worker and his family. We have represented workers catastrophically injured during the dismantling of a plant like this one and understand the hazards associated with that work and the safety regulations that are often violated leading to injuries and deaths. As attorneys who have dedicated our careers to standing up for victims of workplace tragedies, we sincerely hope and pray that investigators are able to get to the bottom of what happened, so those responsible can be held accountable and further steps can be taken to help prevent fatal tragedies like these in the future.

Railroad crossing accident - Bailey Javins & Carter

Accidents and Railroad Crossings

There are more than 250,000 railroad crossings in the United States that intersect with vehicle traffic, and over 8,000 crossings in West Virginia alone. Historically, railroads have played a critical role in the growth and development of the Mountain State, and trains are still widely used to transport coal and other natural resources and goods to other parts of the country. Although trains are an important part of our state’s economy, they also pose a risk of accidents at railroad crossings.

According to the Federal Railroad Administration, collisions at railroad crossings rose by 3.1% in the U.S. from 2016 to 2017. There was also a 7.4% increase in crossing collision fatalities during this period. Railroad crossing accidents are especially hazardous because of the sheer force of colliding with an oncoming train. When a motor vehicle is struck by a train that weighs anywhere between 80,000 and 400,000 pounds, it is very difficult to walk away without life-altering or fatal injuries, no matter how well-built and protected your vehicle is. It comes as very little surprise, then, that individuals who collide with trains are approximately 30 times more likely to be killed than those involved in collisions with other motor vehicles.

One of the major reasons for train accidents is that so many crossings lack the proper warning mechanisms. Nationally, approximately 46% of railroad crossings do not have flashing lights or crossing gates to protect motorists when there is an oncoming train. Although unprotected or “passive” crossings make up a little under half of the crossings in the United States, approximately 60% of all railroad crossing fatalities occur at a passive crossing.

The sharp rise recently in railroad crossing accidents and fatalities has prompted the Federal Railroad Administration (FRA) and National Highway Transportation Safety Administration (NHTSA) to re-launch their “Stop. Trains Can’t” education initiative. In addition to educating the public regarding the dangers of colliding with an oncoming train at a railroad crossing, the FRA is also investing over $65 million into a wide range of grant projects designed to improve railroad safety, efficiency, and reliability. Installing warning mechanisms at passive crossings is included among the improvement projects the FRA is awarding grants for.

Accidents and Railroad Crossings in West Virginia

Because of the unique topography here in West Virginia motorists, bicyclists, and pedestrians here face a greater risk of colliding with a train. This state has countless narrow, winding roads that cut through the numerous hilly and mountainous regions. If there is a lack of proper warning mechanisms, overgrowth of vegetation, and other factors that prevent a motorist from detecting a railroad crossing until they are practically right on top of the tracks, the dangers become even more escalated.

Who is Responsible for Railroad Crossing Accidents?

When a train accident occurs, there are several parties they may be potentially liable:

  • The Driver, Bicyclist, or Pedestrian: Some individuals make very poor decisions when they are near railroad crossings. Motorists, bicyclists, and pedestrians need to exercise extreme caution around crossings. Listen carefully for trains and watch for warning mechanisms, and NEVER try to race an ongoing train.
  • The Company Operating the Train: The driver has a responsibility to operate the train in a safe manner. Unfortunately, some train operators are improperly trained, causing them to break acceptable speed limits and increase the chances of a deadly collision.
  • The Railroad Track Owner: The company that owns the railroad track may or may not be the same company that owns and operates the train. The track owner is responsible for maintaining the tracks to minimize the chances of a derailment, keep the vegetation in and around railroad crossings trimmed so motorists can see oncoming trains, and take other measures to ensure the public’s safety.
  • The Train Designer and/or Manufacturer: If the railroad crossing accident was due to a malfunction of an electrical or mechanical system, the designer and/or manufacturer of the train may be the responsible party. Examples of electrical or mechanical defects include failure of warning whistles, failure of warning lights, failure of the train’s braking system, and many others.
  • The Local Municipality: Some train accidents are caused by failure to properly maintain the roadway that intersects with the railroad crossing. When this occurs, the city, county, or other entity that is responsible for maintaining the roads could be held liable.

Injured in a Railroad Crossing Accident? Speak with an Experienced West Virginia Personal Injury Lawyer

Because of the various parties that could be held responsible and the numerous laws and regulations governing the railroad industry, train accident cases tend to be very complex and difficult to pursue. If you or a loved one was injured or killed at a railroad crossing, it is important to work with an attorney who thoroughly understands these types of cases and has a successful track record obtaining full and fair compensation for injury victims.

At Bailey, Javins, and Carter L.C., we have successfully represented countless clients over the years who have been injured in accidents at railroad crossings. We have extensive knowledge of this area of the law, and we work closely with our clients to provide the strong personalized representation they need and deserve. For a free consultation with one of our experienced attorneys, contact our office today at (800) 497-0234 or (800) 296-6979, or send us a message through our online contact form.

Black Lung Disease Claims - Bailey Javins & Carter

West Virginia Supreme Court Rejects Coal Workers’ Black Lung Disease Claims

Coal workers with black lung disease might be among the first casualties of the recent chaos at the West Virginia Supreme Court. Last year, a TV investigative report uncovered lavish spending on the private offices of the justices, to the tune of $3.9 million. Examples included a $32,000 sofa, $1,700 throw pillows, and $16,000 for eight office chairs. This blew up into a major scandal that resulted in the impeachment of the entire Supreme Court.

In the aftermath of this chaos, most of the justices are brand new. These justices issued a ruling last week that appears to go against previous legal precedent and could make it more difficult for coal workers to access black lung disease benefits. The newly assembled Supreme Court upheld the decision of the Workers’ Compensation Board of Review rejecting benefits for four coal workers with Occupational Pneumoconiosis (OP), also known as black lung disease.

At issue in this case was whether or not three coal miners and one factory worker would be allowed to be examined by the Occupational Pneumoconiosis (OP) Board for the purposes of determining if they would qualify for benefits. In a 4-2 ruling, the court rejected the claims saying that they did not meet the statutory filing deadlines for occupational pneumoconiosis benefits. These deadlines are:

  • Three years from the last day of 60 continuous days of exposure to the hazardous substances known to cause occupational pneumoconiosis; or
  • Three years after being diagnosed with an impairment due to this condition.

Justice Tim Armstead, in writing for the majority, said, “It is undisputed that none of the four claimants filed an application or claim within three years of their date of last exposure.” Justice Armstead went on to say that none of the claims set forth a diagnosed impairment, and that the claims were “properly rejected by the Board of Review.”

Chief Justice Margaret Workman vehemently disagreed with the Court’s decision in a scathing dissent. Chief Justice Workman said of the majority:

By utilizing an inapplicable statute of limitations to bar even the filing of a claim, today’s opinion is an extreme departure from the long-standing rule of law firmly established in the management of OP claims. The majority is way too eager to rewrite West Virginia Code §23-4-15(b) (2017) with far-reaching and grotesquely unfair consequences. It demonstrates either an ignorance of the law or a callous disregard for those who suffer from OP…

Chief Justice Workman goes on to argue that while there are two separate time limitations on which a claim for benefits can be barred, these limitations have never been applied to deny a claimant an evaluation from the OP Board. Furthermore, an evaluation of the OP Board is necessary to determine if a claimant has a black lung disease-related impairment that would qualify them for benefits. So, to deny a claimant the right to an OP Board evaluation because of the lack of a diagnosed impairment seems to be a catch-22.

Chief Justice Workman Continues:

A claimant has never been required to bear the burden and expense of having pulmonary function tests performed and evaluated before filing a claim…It is therefore nonsensical to require a claimant to produce evidence of the very thing the OP Board serves to provide before being permitted to present one’s claim to the OP board.

Progressive Nature of Black Lung Disease at Issue

Both the majority and dissenting opinions acknowledged that black lung disease is a progressive condition that can worsen severely over time. However, the majority sided with the Commissioner and the claimants’ employers and their contention that allowing these examinations (outside of the three-year deadline) would “unreasonably burden” the OP Board. In denying the claims, the majority callously dismissed the progressive nature of the disease by stating that the four claimants were “free to file a claim within three years of receiving a diagnosed impairment due to occupational pneumoconiosis.”

Workers Affected by Black Lung Disease need Strong Legal Representation

Black lung disease has been on the rise in recent years. A 2017 NPR investigation identified nearly 2,000 cases across West Virginia, Kentucky, Virginia, Pennsylvania, and Ohio. Sadly, coal workers in West Virginia who may have this condition must now overcome a major barrier to receive the diagnoses needed to obtain benefits. Unless and until the West Virginia Supreme Court reverses this grossly misguided ruling, there are likely to be many more denials of OP Board examinations (based on the precedent set by the ruling).

There are thousands of coal workers in West Virginia that are living with black lung disease. But to obtain the benefits they deserve, they will now have to jump through more legal hoops. If you or a loved one is in this position, it is important to have strong legal counsel by your side aggressively advocating for your rights and interests.

At Bailey, Javins, and Carter, we have over four decades of experience standing up for West Virginia coal workers. We have in-depth knowledge of the state laws regarding black lung disease and related issues miners face, and we have a successful track record securing just compensation on their behalf. Even when court rulings go against state workers, we will continue to fight hard for their rights and put our extensive experience to work to skillfully argue their cases.