STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA

COUNTY OF ALAMANCE |IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

10 CPS 9348 | |

| |) | |

|ODELL GENE GOLDEN, |) | |

| |) | |

|Petitioner, |) | |

| |) | |

|v. |) |DECISION |

| |) | |

|NORTH CAROLINA CRIME VICTIMS COMPENSATION COMMISSION, |) | |

| |) | |

|Respondent. |) | |

| |) | |

| |) | |

THIS MATTER came on for hearing before Beecher R. Gray, Administrative Law Judge, on April 29, 2011, in Graham, North Carolina.

APPEARANCES

For Petitioner: Odell Gene Golden, Pro Se

Post Office Box 887

Burlington, North Carolina 27216

For Respondent: Jess D. Mekeel, Assistant Attorney General

North Carolina Department of Justice

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

WITNESSES

Petitioner testified in his own behalf. No witnesses testified for Respondent.

EXHIBITS

No exhibits were admitted into evidence. Petitioner offered photographic evidence of his injuries, but these were not introduced or admitted as exhibits.

STIPULATION

The parties stipulated on the record that the facts in this case are as found by the undersigned in the filings of record in this contested case. No further evidence was offered.

ISSUE

Whether Respondent substantially prejudiced Petitioner’s rights and acted outside its authority, acted erroneously, arbitrarily and capriciously, used improper procedure, or failed to act as required by law or rule, when it allowed Petitioner’s claim for crime victim’s compensation but denied compensation for economic loss incurred outside of the one-year limitation under N.C. Gen. Stat. § 15B-11(a)(2).

BASED UPON careful consideration of the entire record in this proceeding and the stipulation of the parties, the undersigned makes the following:

FINDINGS OF FACT

1. The parties received notice of hearing by certified mail more than 15 days prior to the hearing and each stipulated on the record that notice was proper.

2. Petitioner is Odell Gene Golden, a resident of Burlington, North Carolina. At the outset of this hearing, Petitioner knowingly and voluntarily consented to proceeding pro se.

3. Respondent is the North Carolina Crime Victims’ Compensation Commission within the Department of Crime Control and Public Safety. Respondent is created under Chapter 15B of the North Carolina General Statutes and is charged with administering the Crime Victims’ Compensation Fund in North Carolina.

4. Petitioner was the victim of a violent criminal assault on February 18, 2010.

5. On February 22, 2010, Petitioner reported the assault to law enforcement.

6. On August 17, 2010, Petitioner filed an application for assistance with the Crime Victims’ Compensation Commission.

7. Following an investigation and review of the claim, Respondent denied Petitioner’s claim under N.C. Gen. Stat. § 15B-11(a)(3). See N.C. Gen. Stat. § 15B-11(a)(3) (“An award of compensation shall be denied if: . . . [t]he criminally injurious conduct was not reported to a law enforcement officer or agency within seventy-two (72) hours of its occurrence, and there was no good cause for the delay.”).

8. On November 5, 2010, Respondent mailed Petitioner the denial notification as well as an explanation of Petitioner’s appeal rights.

9. On December 21, 2011, Petitioner filed a Petition for a Contested Case Hearing.

10. On January 18, 2011, Respondent filed its Prehearing Statement, and on January 21, 2011, Petitioner filed his Prehearing Statement.

11. Based upon the statements and allegations in Petitioner’s Petition and Prehearing Statement, Respondent accepted that there was “good cause” for the delay under N.C. Gen. Stat. § 15B-11(a)(3) and sent Petitioner a cover letter and substitute decision of award on March 21, 2011.

12. As depicted in the itemized schedule of payments attached to the substitute decision, the only payment made by Respondent was $73.33 to the Person Family Dental Center, which constituted 66 2/3% of the $110.00 balance, as permitted by N.C. Gen. Stat. § 15B-2(1).

13. The only other expense submitted to Respondent by Petitioner was a bill from Alamance Regional Medical Center. Alamance Regional Medical Center wrote the bill off as charity care so that Petitioner has no balance due with Alamance Regional Medical Center.

14. On March 21, 2011, Respondent filed a motion to stay pending payment of Petitioner’s claim, stating that Petitioner’s claim had been awarded and that the case would become moot upon confirmation that payment had been accepted. Respondent also explained that any future treatment and expenses would not be eligible for reimbursement as Petitioner’s claim timed-out on February 18, 2011, according to the one-year limitation on economic loss under N.C. Gen. Stat. § 15B-11(a)(2).

15. On April 14, 2011, Petitioner filed a response to the motion to stay, contending that Respondent should be required to pay for additional necessary dental treatment, including appointments on April 8, 2011 and April 20, 2011.

16. Respondent’s motion was heard by telephone with Chief Judge Julian Mann, III on April 15, 2011. At the conclusion of the hearing, Chief Judge Mann denied the motion to stay and ruled that the evidentiary hearing would proceed as noticed for April 29, 2011.

17. On April 26, 2011, Chief Judge Mann reassigned the case to the undersigned.

18. It is undisputed that Respondent paid all allowable expenses incurred by Petitioner between February 18, 2010 and February 18, 2011.

19. At the hearing on April 29, 2011, the undersigned explained to the parties that he questioned whether the “future economic loss” provision in N.C. Gen. Stat. § 15B-8(b) could potentially allow for compensation for expenses incurred outside of the one-year limitation under N.C. Gen. Stat. § 15B-11(a)(2). In other words, the undersigned questioned the interplay between N.C. Gen. Stat. §§ 15B-8(b) and 15B-11(a)(2) and whether the legislature intended the one-year limitation to be absolute under all circumstances.

20. The undersigned inquired of Petitioner whether he intended and desired to seek the assistance of Legal Aid or other legal representation. The undersigned explained that he was willing to grant Petitioner additional time to obtain representation. Petitioner, however, indicated his preference to have the case resolved at the hearing.

21. Respondent has the authority and responsibility under Chapter 15B of the North Carolina General Statutes to investigate and award or deny claims for compensation under the Crime Victims Compensation Act.

22. N.C. Gen. Stat. § 15B-4(a) provides that “compensation for criminally injurious conduct shall be awarded to a claimant if substantial evidence establishes that the requirements for an award have been met.”

23. N.C. Gen. Stat. § 15B-4(a) provides that “compensation for criminally injurious conduct shall be awarded to a claimant if substantial evidence establishes that the requirements for an award have been met.”

24. N.C. Gen. Stat. § 15B-11 lists the grounds for denial of a claim for compensation or for the reduction of an award.

25. N.C. Gen. Stat. § 15B-11(a)(3) provides, in pertinent part: “An award of compensation shall be denied if . . . [t]he criminally injurious conduct was not reported to a law enforcement officer or agency within 72 hours of its occurrence, and there was no good cause for the delay.”

26. Although Petitioner originally was denied compensation under N.C. Gen. Stat. § 15B-11(a)(3), Respondent conceded during the course of the instant contested case that Petitioner had demonstrated “good cause” under N.C. Gen. Stat. § 15B-11(a)(3). Accordingly, Respondent awarded Petitioner’s claim.

BASED UPON the foregoing Findings of Fact, the undersigned hereby makes the following:

CONCLUSIONS OF LAW

1. Both parties properly are before the Administrative Law Judge, in that jurisdiction and venue are proper and both parties received notice of the hearing.

2. To meet all the requirements for an award, Petitioner must show he is a “claimant” and has incurred an “allowable expense” as or on behalf of a “victim” of “criminally injurious conduct.” N.C. Gen. Stat. § 15B-2(2), (1), (5), (13). In addition, Petitioner bears the burden of showing that none of the disqualifying criteria in N.C. Gen. Stat. § 15B-11 operate to bar his claim. See Richardson v. N.C. Dep’t of Pub. Instruction Licensure Section, 199 N.C. App. 219, 228, 681 S.E.2d 479, 485 (“It is well-settled that a petitioner has the burden of proof at an administrative hearing to prove that he is entitled to relief from the action of the administrative agency. This burden is on the petitioner even if he must prove a negative.” (citing Overcash v. N.C. Dep’t of Env’t & Natural Res., 179 N.C. App. 697, 635 S.E.2d 442 (2006), disc. rev. denied, 361 N.C. 220, 642 S.E.2d 445 (2007))), disc. rev. denied, 363 N.C. 745, 688 S.E.2d 694 (2009).

3. Substantial evidence is defined as “relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” N.C. Gen. Stat. § 15B-2(12a).

4. Substantial evidence exists to show that Petitioner properly filed his application as a “victim” of “criminally injurious conduct” under N.C. Gen. Stat. § 15B-2(5) and (13).

5. Although Petitioner sought compensation for treatment in April 2011 and beyond, Respondent is only permitted by statute to award compensation for economic loss incurred within one year of the criminally injurious conduct. See N.C. Gen. Stat. § 15B-11(a)(2).

6. N.C. Gen. Stat. § 15B-11(a)(2) has been applied in prior cases to preclude compensation for medical expenses incurred more than one year after the criminally injurious conduct. See, e.g., Jackson v. N.C. Victim & Justice Servs., Recommended Decision, No. 04 CPS 0746 (OAH Nov. 17, 2004) (Morrison, Jr., A.L.J.); Taylor v. N.C. Crime Victims Comp. Comm’n, Recommended Decision, No. 00 CPS 1052 (OAH May 22, 2011) (Gray, A.L.J.).

7. Respondent awarded compensation for all expenses submitted by Petitioner that were incurred within one year of the criminally injurious conduct, and any additional expenses for which Petitioner now seeks compensation, including future dental treatment, are time-barred by N.C. Gen. Stat. § 15B-11(a)(2).

8. Based upon the record and arguments before this Court, the undersigned finds that Petitioner’s claim timed-out on February 18, 2011 and that any expenses incurred beyond February 18, 2011 are not allowable expenses under Chapter 15B of the North Carolina General Statutes.

9. Although the additional treatment described by Petitioner may well be necessary, Respondent is not permitted by the statute to award compensation in connection with treatment performed more than one year after the criminally injurious conduct occurred.

BASED UPON the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby makes the following:

DECISION

Respondent’s decision to deny Petitioner’s claim for crime victims compensation for economic loss incurred after February 18, 2011 is supported by the evidence and is AFFIRMED.

NOTICE

The North Carolina Department of Crime Control and Public Safety will make the Final Decision in this contested case. Under N.C. Gen. Stat. § 150B-36(a), the agency making the Final Decision is required to give each party an opportunity to file exceptions to this decision and to present written arguments to those in the agency who will make the Final Decision. In making its Final Decision, the agency must comply with the provisions of N.C. Gen. Stat. § 150B-36(b), -36(b1), -36(b2) and -36(b3). The agency may consider only the official record prepared pursuant to N.C. Gen. Stat. § 150B-37.

ORDER

It hereby is ordered that the North Carolina Department of Crime Control and Public Safety shall serve a copy of its Final Decision upon each party and the Office of Administrative Hearings, in accordance with N.C. Gen. Stat. § 150B-36(b3).

IT IS SO ORDERED.

This the 10th day of May, 2011.

______________________________

Beecher R. Gray Administrative Law Judge

Administrative Law Judge

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