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.


Limousine Accidents - Who is responsible? - Bailey Javins & Carter

Who is Responsible for Accidents in Limousines?

Earlier this month, 20 people were killed in upstate New York when a limousine barreled through a T-intersection and crashed into an unoccupied vehicle. The crash killed all 18 occupants of the limousine (including the driver) and two nearby pedestrians, making it the worst tragedy in the United States in nearly a decade. The crash is still under investigation, but according to New York Governor Andrew Cuomo, the limousine had failed an inspection last month and never should have been on the road in the first place. In addition, the driver did not have the required commercial license endorsement to be driving the vehicle.

The recent tragedy in New York has helped shine the spotlight on a high-end means of travel that is assumed by most people to be safe. Many choose to travel by limousine for special occasions such as proms, weddings, concerts, and parties. In the case of the upstate New York crash, the passengers were in route to a birthday celebration at a local brewery. Knowing that alcohol was going to be involved, they did what they thought was the responsible thing and hired a limo to drive them, so they could all make it home safe. Sadly, the limo service provider failed miserably to live up to their obligations.

Who is Responsible in a Limousine Accident?

With Halloween parties happening later this month and the holiday season rapidly approaching, many West Virginians are making plans for celebrations with family and close friends. But with what just happened in New York, many are wondering if renting a limousine for these occasions is such a good idea. Most limo excursions do end safely. That said, it is important to perform your due diligence and check out the limo service before you hire them. Make sure they have the proper licensing and have a good record with the Better Business Bureau and other consumer organizations.

Some people also wonder who is responsible if they should happen to get into an accident as a passenger in a limousine. As the recent case shows, there is not always a definitive answer to that question. According to NBC News, it is still not clear if the crash was the driver’s fault, or if it was caused by a vehicle malfunction. In a typical case, the accident could be the fault of the driver, the limousine company, the vehicle (or vehicle part) designer, manufacturer, supplier, or distributor, or a combination of factors.

The driver could be at-fault if he/she was:

  • Speeding or driving recklessly;
  • Driving while under the influence of alcohol or drugs;
  • Driving while drowsy;
  • Driving while distracted (e.g., texting while driving).

The limousine company could be at fault if they:

  • Did not have the proper licensing to operate a limo service;
  • Deployed vehicles that are not properly maintained and are unsafe to be on the road;
  • Pressured drivers to work unreasonably long hours;
  • Overloaded the vehicle with too many passengers;
  • Hired drivers that were unqualified or did not have the proper licensing.

The vehicle designer, manufacturer, or other parties in the supply chain could be at fault if a faulty or defective product proves to be responsible for the limousine accident. Finally, the driver of another vehicle could be at-fault if their negligence or reckless actions on the road were the cause of the accident.

What to Do if you are Involved in a Limousine Accident

If you are involved in a limousine crash, there are some steps that should be taken right away to ensure that you and other passengers are protected:

  • Seek Medical Attention: The first priority is to make sure everyone who may have been injured (including yourself) is treated for their injuries. Call 911 right away to bring an ambulance to the scene. It is important to keep in mind that some injuries (such as whiplash and internal bleeding) are not always discovered right away. Even if you think you are okay, have a medical professional check you out just to be sure.
  • Document what Happened: Gather as much information as you can at the accident scene while everything is fresh in your mind. Take detailed notes of the incident and how it occurred. Take multiple photographs of the scene from various angles. And obtain the contact information of those nearby that may have witnessed the crash.
  • Obtain Strong Legal Representation: Limousine accident cases can be quite complicated. With multiple potential at-fault parties, it is not always clear which legal avenue is best to pursue. For this reason, it is very important to speak with a seasoned personal injury attorney who understands the complexities of these types of cases.

The experienced injury attorneys at Bailey, Javins, and Carter have over four decades of experience representing victims of all types of auto accidents in West Virginia. We have in-depth knowledge of this area of the law, and a successful track record obtaining full compensation for our clients and holding responsible parties fully accountable. Contact our office today to schedule a free consultation with one of our attorneys.

Concussion Complications - Bailey Javins & Carter

Caring for a Loved One with a Traumatic Brain Injury

There are roughly 2.5 million hospitalizations and visits to the emergency room each year for traumatic brain injury (TBI), and more than 5 million Americans are living with a TBI-related disability. When someone suffers from a TBI-related injury, it affects everyone around them. Loved ones are suddenly called upon to become caregivers, and most do not have any prior experience dealing with someone who has this type of condition.
Traumatic brain injury is different from most other medical conditions. The effects of TBI are unique to each individual who suffers from it, and the type of rehabilitation required as well as the amount of time needed for recovery varies widely from person to person. Unlike most other injuries, TBI affects the whole person; i.e., physical, cognitive, emotional, etc.
Physical issues related to traumatic brain injury can include dizziness, headaches, balance problems, and even problems seeing. Cognitive issues can include problems with focus and concentration, processing and understanding information, reasoning, solving problems, making decisions, and in some cases, memory loss. Emotional issues can include impulsive and often inappropriate behavior, mood swings, and general difficulty controlling emotions.
What Can Family Members do for TBI Sufferers?
From the moment you learn that a loved one has traumatic brain injury, your role in their life changes dramatically. For example, you may need to relate to a spouse who has TBI more like a child. The same holds true for children whose parents develop TBI, in this case, it may be a complete role reversal. Adjusting to your new role can be highly stressful, and this makes caring for a loved one with traumatic brain injury an emotionally draining experience.
Here are five important tips to help caregivers of loved ones with traumatic brain injury cope with this difficult situation:
Get Plenty of Rest
Caring for a loved one with traumatic brain injury is both physically and emotionally exhausting. This makes it critical for the primary caregiver to rest as much as possible. This might require some short-term changes while you help your loved one recover. For example, you may need to take some time off from work. Under the Family Medical Leave Act (FMLA), most employers are required to give up to 12 weeks off during a 12-month period to care for a loved one with a serious medical condition. Finally, enlist other family members or friends or even an in-home caregiving service (if your budget allows) to help care for your loved one’s needs.
Rest is not only important for the caregiver, it is also important for the TBI patient. Rest is essential to allow their body and brain time to repair and recover. Be sure your loved one is getting the amount of rest he/she needs to (hopefully) recover more quickly from their brain injury.
Follow all Doctor’s Orders
The recovery path for traumatic brain injury is unpredictable. This makes it all the more important to follow the advice of your doctor. Check in with your doctor before having your loved one resume activities such as driving, exercise, or going back to work. Your doctor will also most likely tell you not to allow your loved one to use alcohol or tobacco. It is very important to follow this advice, because these substances can hinder or even reverse the progress of recovery and do additional damage to the brain.
Be Patient
Caring for a close family member with TBI is not unlike caring for someone with Alzheimer’s or dementia. Those who have been through that experience will tell you that you need to develop (seemingly) infinite patience. To help with this, learn as much as you can about traumatic brain injury, and get connected with some type of support group either online or locally. The more you know and understand about this condition, the easier it will be to exercise patience and cope with the situation.
Be Mindful of the Impact on Younger Family Members
When a family member develops TBI, it affects everyone in the house, even your youngest children. They feel stress like everyone else, but they may deal with it in a different way, depending on their age. Take some time to speak with your family members about what is happening and find out how they feel about it. Do not just assume that because they appear okay on the surface, they are handling it well. It is best to find out as soon as possible if they might need some additional help in dealing with the situation.
Look into a Medicaid Waiver Program
Many states have waivers available for Medicaid eligibility for patients with severe cases of TBI. This may allow your loved one to qualify for Medicaid even if the household earns too much income under normal eligibility guidelines. If you are a resident of West Virginia, you can apply for a traumatic brain injury waiver through the West Virginia Bureau for Medical Services.
Covering your Legal Bases
If your loved one developed traumatic brain injury due to the negligent or reckless actions of another party, you may be entitled to both economic damages (e.g., medical and rehab costs, lost earnings, etc.) and non-economic damages (e.g., physical pain and suffering, emotional distress, diminished quality of life, etc.). To ensure that your rights and interests are fully protected, it is important to speak with an experienced personal injury attorney as soon as possible.
A seasoned injury attorney will be able to thoroughly assess the severity of the injury, how it occurred, and other critical details of the case and let you know your best legal options. Before accepting any kind of settlement offer from an insurance party or anyone else, make sure you consult with skilled legal counsel so you are able to make the most informed decision possible regarding the legal path you want to pursue.

Dangers of working as a Power Lineman - Bailey Javins & Carter

The Dangers of Working as an Electric Power Lineman

Electric power and cable linemen have one of the most dangerous jobs in America. They are routinely asked to work in high places with power lines that carry large amounts of electricity. On new construction projects, they are the ones building or upgrading the lines to meet codes and specifications. When bad weather hits and thousands of consumers lose power, they are also the ones out there braving the storm, so we can turn our lights back on.

It is the responsibility of power companies and other entities that employ power linemen to ensure that they are fully prepared to perform their job safely. Unfortunately, many of these companies have cut corners by not hiring adequate staff and not properly following job safety requirements. This causes them to be exposed to a wide range of hazards.

Some of the most common dangers power linemen face on the job include:

Not Using the Required Protective Equipment

Using proper safety and protective equipment is important for all types of work, but when you are working with high-voltage power lines all day, it is especially critical. Employers need to make sure that power line workers are equipped with the right type of gloves, burn-resistant clothing, and other gear that will help keep them safe out there.

Working at Dangerous Heights

As mentioned earlier, power line workers frequently have to work in high places, such as the top of a telephone or electric pole. If they do not have a stable platform when they are that high up, they become susceptible to falls that can result in serious and catastrophic injuries.

Working in Confined Areas

Not only do they have to work in dangerous altitudes, power linemen also frequently need to work in a confined space when they are putting up or repairing a portion of a line. Working in a closed-in space puts lineman at risk of hazards such as becoming trapped if there is an explosion or fire.

Welding Accidents

One of the jobs electrical linemen often do is weld together parts of the power line. This is often done in a high place or confined area. Welding accidents can cause cuts, bruises, burns, and other types of injuries.

Working in Adverse Weather Conditions

Power linemen tend to work the most hours when there are power outages because of bad weather. Since companies want to restore power as quickly as possible, they often send their workers out in very hazardous weather conditions. This makes an already dangerous job even worse.

Working Long Hours

The stress of working as a power lineman is bad enough on a full-time schedule. But when poor weather hits and there are mass outages as a result, they can end up working 60, 70, even 80 hours in a week. Working that many hours exposes linemen to a wide range of injuries and illnesses due to stress and other factors.

Compensation for Power Lineman Injuries

Electrical workers who become injured in an accident at work have several potential legal options. One of the first places to recover compensation is through workers’ compensation. Most companies are required to carry workers’ comp insurance, so an injured power lineman should be eligible for benefits. That said, the claims process can be complicated and confusing, and employers often throw up unnecessary road blocks that prevent workers from obtaining the benefits they are entitled to.

Other legal avenues for injured power line workers may include:

  • Personal Injury Lawsuit Against the Employer: Some employers do not carry workers’ compensation insurance. In such cases, you may be able to sue them directly for a workplace injury. Some states also allow for an employee to sue an employer if their negligence deliberately caused them physical harm.
  • Product Liability Claim: If there is a product that is responsible for a power lineman’s injury or death, the injured party (or their family) may be able to sue the product manufacturer, supplier, distributor, or sales person.
  • Third-Party Injury Lawsuit: If an accident resulting in severe injury or wrongful death was the fault of a party other than the employer (such as a subcontractor working on site), it may be possible to file a personal injury lawsuit against the third party.

The Importance of Experienced Legal Counsel

Power lineman have hazardous jobs, and when they become injured, they need to make sure their rights and interests are fully protected. At Bailey, Javins, and Carter, our skilled personal injury lawyers have been standing up for working people for many years. We have in-depth experience with the complex issues involved with power lineman injury cases and other types of workplace injuries, and we fight hard to ensure that our clients are fully compensated.