Paralyzed Marine wins right to benefits Persistent mother gets decision reversed

February 23, 1997|By NEW YORK TIMES NEWS SERVICE

CHICAGO -- Joanne Bertalan won the battle her paralyzed son could not fight -- a five-month struggle with Navy and Marine officials who had sought to strip her 22-year-old son of his veteran's benefits.

She was at her son's bedside at the Rehabilitation Institute of Chicago on Friday, bags under her blue eyes, her gray hair tousled by the five-hour flight from San Diego after a four-hour hearing.

Months of uncertainty about the quality and cost of the care her son will receive had ended.

It is doubtful that her son, Cpl. Joseph Bertalan, understood much of what she said. He is only minimally conscious after emerging from a coma eight months ago.

"It's been an uphill battle all the way, and I was never sure how this would conclude," Joanne Bertalan said.

"But in the end, the system worked; it did what it was supposed to do. It's been incredibly hard, but things worth fighting for always are."

In a ruling Thursday, a hearing panel of the Navy Physical Evaluation Board, meeting at the Naval Medical Center in San Diego, recommended a rare reversal of earlier findings that attributed the Marine's injuries to his own misconduct.

Joseph Bertalan's health costs have averaged more than $50,000 a month since his injury. He had faced the prospect of being stripped of all his veteran's benefits, including his medical care.

That would have severely hurt any chances for even the most minimal improvement in his condition, said Dr. James Kelly, director of the Rehabilitation Institute's brain injury program.

Joseph Bertalan now can communicate, although inconsistently, only by blinking his eyes. Quality medical care is "crucial for his survival," Kelly added, noting that his patient had contracted meningitis once and pneumonia seven times.

On Jan. 16, 1996, four days after his 21st birthday, Joseph Bertalan and 15 other Marines were traveling to sick bay for inoculations at the Navy base in Norfolk, Va., in four cars.

While trying to pass another Marine's car, Joseph Bertalan lost control of his vehicle, which skidded and smashed against a tree.

All four Marines in his car were injured. All except Joseph Bertalan returned to active duty. The crash damaged his brain stem and frontal brain lobe, and fractured his cheekbone.

An investigation into the accident by Capt. William F. McCollough found that his injuries were the result of intentional misconduct.

The accident occurred on a two-lane asphalt road where the posted speed limit was 25 mph, and the investigation concluded that Joseph Bertalan had been going much faster than that. Specifically, the investigation found that he should have "reasonably foreseen" that an accident would result from exceeding the speed limit and, therefore, his injuries did not occur in the line of duty.

Those findings were forwarded to the Navy Physical Evaluation Board in Arlington, Va., for review.

Capt. D. S. Koch, presiding officer of the board, notified Joanne Bertalan on Sept. 24 that the record review panel of that board would recommend that her son receive no Veterans Affairs benefits, including medical care, because the injuries were caused by his willful neglect of the speed limit.

Joanne Bertalan, a 48-year-old widow from Lansing, Ill., borrowed money and hired the law firm of Tomes & Dvorak, of Chicago and Kansas City, Mo. She has spent $50,000 to help build her son's case.

Quick to praise the military's handling of her son's treatment, she is also openly critical of the investigation that jeopardized his long-term care.

"I had never heard of anything like this in my life," she said. "I mean, my God, this was an accident."

The lawyers hired an investigator to review the accident inquiry. The investigator, Kip Ballenger of the Kansas State Police, reconstructed the accident at the scene. Ballenger disputed the quality of the initial accident investigation by private security guards at the base, ridiculing the conclusion that Joseph Bertalan's car had been going at least 60 mph.

The guards based their conclusion on their measurement of 115 yards of skid marks. Ballenger said that the measurement should have been 115 feet.

"We tend to train elite troops, like Marines, to think they are invincible. It makes no sense to hold them liable and deny them benefits when they are a little careless," said Jonathan Tomes, the senior partner in Tomes & Dvorak.

Pub Date: 2/23/97

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