Accident + Injury secondary disability due to medication intake

[tk3000]

Hello Folks,

I read in the the past in books or other sources, and it seems that there are fully developed cases and claims within the VA whereby the intake of medication (opioids/pain killers in particular) can supposedly play a substantial roles in an accident with a subsequent injury and disability. While it is true that the medication's prescription warns about such impairment one can not stop living a life or perform basic and necessary tasks (for what there is no substitute) due to such medications.  

It seems reasonable that whether one is riding a motorbike or operating a machinery and  then is victimized by a debilitating accident for which one could argued that the intake of pain killers played a substantial role in the  precipitation or occurrence of the accident, that then one could claim that the injury and disability caused by aforementioned accident shall be service connected as well.  

There are many questions   afloat from this argument, mainly questions of principles and cause/effect, for instance:  in these circumstances, while the burden of the proof lies with the veteran it would not be possible for the VA to prove beyond a reasonable doubt  the intake of medication did not play a role in the accident. 

Could anyone point me out to previous cases or scenarios of this nature, please?  How straightforward  or convoluted such cases can be?

 

Edited August 23, 2017 by tk3000

[Buck52]

Good and Rare Question.

I would say maybe this would fall under  torte claim's? although I'm not sure.

 Miss use of willful misconduct would need to be proven,( non-abuse of medications) blood test taken at the time of accident ,lots of factors factor in here.

However it is possible to get compensation for taking VA pain prescribe medications that was the cause of an accident/and injury.

''When Drug Use Is Willful Misconduct''

''The occasional use of a drug (even if illegal) will not rise to the level of willful misconduct in the absence of a finding that the use of the drug actually caused the injury or death.''

If a prescription drug is taken as prescribed and is used as medically intended, this is not drug abuse even if it results in an addiction to the prescription drug.

source: published by NOLO ''Disability Secrets ''

I would advise to get all your evidence together and everything you need to substantiate your claim and file FDC , and just see what they say?  

(What We Decided) if your denied  then you can use that to appeal your claim if you feel you don't agree with the decision.

 I would advise to use a Experienced VA Attorney or  Experienced VA  Certified Rep.

Edited August 23, 2017 by Buck52

[jfrei]

If it's not to much to ask can you share more details about the accident. The key I think would be the police report and what it is that they said played the role in the accident? I got lots of information of cases but the biggest tool for you to search if your not about sharing exact details is going to BVA.VA.GOV and look up recent decisions and begin your search in their search drive. Exact phrase and using " " with the word AND will help. If you share more info I maybe able to help with more exact cases...

[tk3000]

On 8/23/2017 at 10:40 AM, Buck52 said:

Good and Rare Question.

I would say maybe this would fall under  torte claim's? although I'm not sure.

 Miss use of willful misconduct would need to be proven,( non-abuse of medications) blood test taken at the time of accident ,lots of factors factor in here.

However it is possible to get compensation for taking VA pain prescribe medications that was the cause of an accident/and injury.

''When Drug Use Is Willful Misconduct''

''The occasional use of a drug (even if illegal) will not rise to the level of willful misconduct in the absence of a finding that the use of the drug actually caused the injury or death.''

If a prescription drug is taken as prescribed and is used as medically intended, this is not drug abuse even if it results in an addiction to the prescription drug.

source: published by NOLO ''Disability Secrets ''

I would advise to get all your evidence together and everything you need to substantiate your claim and file FDC , and just see what they say?  

(What We Decided) if your denied  then you can use that to appeal your claim if you feel you don't agree with the decision.

 I would advise to use a Experienced VA Attorney or  Experienced VA  Certified Rep.

Thanks for the insight. 

I am not sure about it been characterized as a tort claim either. Tort seems to be related to negligence or crime whereas there is intention. 

The medication was used as intended, but I was under more than one type of medication (all from the VA) and they do interact with each other as well.

Yeah, I plan on filing a FDC, but first have to find out the records to properly substantiate the claim and thus increase chances of success. 

I happen to have an appeal at BVA level, and as many of you I heard that the file can only be at one place at a time (must be paper file) so having multiple claims delay all of them. Is that a right assessment?

 

[tk3000]

18 hours ago, jfrei said:

If it's not to much to ask can you share more details about the accident. The key I think would be the police report and what it is that they said played the role in the accident? I got lots of information of cases but the biggest tool for you to search if your not about sharing exact details is going to BVA.VA.GOV and look up recent decisions and begin your search in their search drive. Exact phrase and using " " with the word AND will help. If you share more info I maybe able to help with more exact cases...

The accident happened in 2008. Back then, I was a student taking classes at MSU (Michigan State University) and with allowance plus financial aid I could barely afford to pay rent and living expenses, so my main of transportation was a motor scooter (used it to go to classes, buy grocery, etc). And it because of my difficulties in mobility and pain, the scooter was a life saver. And the accident happened while riding this bike. Suffice to say, I am not riding motorbikes any longer.

The police report only said that I was riding slowly (witness told officer).

Thanks, I will look into the bva's website for possible similar cases

[Buck52]

Well not to long ago a widow came here for help  her bubby was killed riding a Motor Cycle.

OK she  claimed that the medication he was on from VA Prescribe medications for  his S.C. PTSD  was the cause of him having a seizure or blackout at the time of his Accident Although Alcohol was found in is blood after the Accident  but also the medications too!

  so the board could not determine if he had a black out or not at the time of the Accident? ( I believe he was killed instantly) (benefit of doubt goes to the veteran)..even when a witness stated or testified that he was riding recklessly and popping wheeling's  riding on the rear tire with the front end of the motor cycle up in the air at the time of the Accident..I believe she won the case...its here on hadit some place? her post.

 Crucial  medical evidence in this case was the blood test taken after the Accident his Medications he had taken from the VA.& not the Alcohol 

I am not sure how this case went? but if I remember correct she won and recieved DIC.

I can't remember her screen name here on hadit. sorry.

[jfrei]

16 hours ago, tk3000 said:

The accident happened in 2008. Back then, I was a student taking classes at MSU (Michigan State University) and with allowance plus financial aid I could barely afford to pay rent and living expenses, so my main of transportation was a motor scooter (used it to go to classes, buy grocery, etc). And it because of my difficulties in mobility and pain, the scooter was a life saver. And the accident happened while riding this bike. Suffice to say, I am not riding motorbikes any longer.

The police report only said that I was riding slowly (witness told officer).

Thanks, I will look into the bva's website for possible similar cases

And what was the cause of the accident in the police report their words are what the VA will use to make their determination, and if you were in the service and a LIne of duty was done but if your out the police report sounds what they will use. The report should have a breakdown of what happened, the events leading to the accident, and the cause.