STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF VANCE 05 CPS 0529

|CURTIS GLENN DAVIS, ) |) | |

|Petitioner, |) | |

| |) | |

| |) | |

|v. |) |DECISION |

| |) | |

| |) | |

|N.C. DEPT. OF CRIME CONTROL AND PUBLIC SAFETY CRIME VICTIMS |) | |

|COMPENSATION COMMISSION, |) | |

|Respondent. |) | |

| |) | |

| |) | |

THIS MATTER came on to be heard before Robert A. Bryan, Jr., Temporary Administrative Law Judge, on 25 July 2005 in Raleigh, North Carolina.

APPEARANCES

For Petitioner: Michael F. Rogers, Esq.

Rogers and Rogers Lawyers

Post Office Box 696

Henderson, North Carolina 27536

Attorney for Petitioner

For Respondent: Donald K. Phillips

Assistant Attorney General

North Carolina Department of Justice

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

Attorney for Respondent

PETITIONER’S WITNESSES

1. Petitioner, Curtis Glenn Davis.

RESPONDENT’S WITNESSES

1. Laura Hay.

EXHIBITS

The following exhibits were admitted into evidence on behalf of Petitioner and are briefly identified as follows:

1. A 16-page copy of Petitioner’s Answers to Respondent’s First Set of Interrogatories, Requests for Admissions, and Requests for Production of Documents dated 26 May 2005; a copy of a one-page letter from Deborah C. Hayes of Auto Mart of Henderson dated 26 May 2005; and a one-page copy of a facsimile dated 8 April 2005 purportedly from Deborah C. Hayes listing 12 dates and a figure of $745.00. (NOTE: Pages 13 and 14 of Petitioner’s Exhibit 1, Petitioner’s Victim Compensation Application, is identical to Respondent’s Exhibit 1 and was submitted to the Court by agreement of the parties to avoid unnecessary duplication of evidence. Furthermore, the 16-page portion of Petitioner’s Exhibit 1, in its entirety, is identical to Respondent’s Exhibit 2 and, by agreement of the parties, was submitted to the Court to avoid unnecessary duplication of evidence).

The following exhibits were admitted into evidence on behalf of Respondent and are briefly identified as follows:

1. A two-page copy of Petitioner’s Victim Compensation Application which Petitioner completed on 23 September 2004 and Respondent received on 5 October 2004. (NOTE: By agreement of the parties, submitted to the Court as Petitioner’s Exhibit 1).

2. A sixteen-page copy of Petitioner’s Answers to Respondent’s First Set of Interrogatories, Requests for Admissions, and Requests for Production of Documents dated 26 May 2005. (NOTE: By agreement of the parties, submitted to the Court as Petitioner’s Exhibit 1).

3. A one-page copy of a cover letter for attached Respondent’s Exhibit 4 from counsel for Petitioner to the Respondent dated 13 October 2004 and received by the Respondent on 20 October 2004.

4. A one-page copy of Petitioner’s completed Income Verification-Victim Form completed by Petitioner on or about 12 October 2004 and received attached to Respondent’s Exhibit 3 by the Respondent on 20 October 2004.

5. A one-page copy of Petitioner’s Roentgenologic Report from Robert A. Cerwin, M.D. dated 17 December 2003 which Petitioner supplied to Respondent during discovery.

6. A one-page copy of Petitioner’s Roentgenologic Report from Alan B. Fein, M.D. dated 16 December 2003 which Petitioner supplied to Respondent during discovery.

7. A one-page copy of Petitioner’s Roentgenologic Report from Alan B. Fein, M.D. dated 15 December 2003 which Petitioner supplied to Respondent during discovery.

8. A one-page copy of Petitioner’s Roentgenologic Report from Alan B. Fein, M.D. dated 15 December 2003 which Petitioner supplied to Respondent during discovery.

9. A one-page copy of Petitioner’s Roentgenologic Report from J. Mark Spargo, M.D. dated 15 December 2003 which Petitioner supplied to Respondent during discovery.

10. A one-page copy of Petitioner’s Roentgenologic Report from J. Mark Spargo, M.D. dated 15 December 2003 which Petitioner supplied to Respondent during discovery.

ISSUES PRESENTED

1. Did the Petitioner provide “substantial evidence” within the meaning of N.C.G.S. § 15B-2(12a) of incurring an “allowable expense” within the meaning of N.C.G.S. § 15B-2(1)?

2. Has Petitioner’s alleged losses upon which his claim is based been recouped or will his alleged losses be recouped from a “collateral source” pursuant to N.C.G.S. §§ 15B-2(3) and -11(d)?

3. Did the Petitioner suffer “economic loss” within the meaning of N.C.G.S. § 15B-2(10) and provide “substantial evidence” within the meaning of N.C.G.S. § 15B-2(12a) of such economic loss?

4. Did the victim suffer “work loss” within the meaning of N.C.G.S. § 15B-2(14) and did the Petitioner provide “substantial evidence” within the meaning of N.C.G.S. § 15B-2(12a) of such work loss?

5. Has Petitioner presented “substantial evidence” to establish that the requirements for an award have been met pursuant to N.C.G.S. §§ 15B-4(a) and 15B-2(12a)?

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearings, the documents and exhibits received and admitted into evidence, and the entire record in this proceeding, the undersigned makes the following findings of fact. In making the findings of fact, the undersigned has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case.

FINDINGS OF FACT

1. The Petitioner in this case is Curtis Glenn Davis (hereinafter “Petitioner”) who testified on his own behalf at the hearing. On 15 December 2003, Petitioner was shot at his home and, by stipulation of the parties, is a “victim” of “criminally injurious conduct” as those terms are defined by N.C.G.S. §§ 15B-2(5) and 2(13). Due to his injuries, Petitioner was treated at both Maria Parham Hospital in Henderson and UNC Hospital in Chapel Hill.

2. On 5 October 2004, Petitioner completed and filed a Victim Compensation Application (hereinafter “application”) with the North Carolina Department of Crime Control and Public Safety, Victim Compensation Services Division, Crime Victims Compensation Commission (hereinafter “Respondent”) seeking lost wages and medical expenses as a “claimant” as that term is defined by N.C.G.S. § 15B-2(2).

3. On Petitioner’s application, he stated that he was “covered” by Medicare and Medicaid and was not employed at the time of his injuries related to the 15 December 2003 criminally injurious conduct.

4. On 14 March 2005, following an investigation and review of Petitioner’s claim, the Respondent’s Director denied Petitioner’s claim. On 14 March 2005, the Respondent mailed Petitioner a cover letter and Determination of Director Denied explaining the denial and giving notice to Petitioner of his right to appeal to the Office of Administrative Hearings (hereinafter “OAH”).

5. Petitioner filed a form Petition for a Contested Case Hearing with the OAH alleging that the Respondent acted erroneously, failed to act as required by law or rule, and otherwise substantially prejudiced his rights.

6. Petitioner stipulated at the hearing that all of his medical bills have been paid by Medicare and Medicaid and he therefore does not have any outstanding medical bills. Petitioner continues to have check-ups and plans to have a future surgery in October or November 2005 at UNC Hospital and possibly more surgeries thereafter.

7. Petitioner testified that Dr. Carl Smith, one of Petitioner’s doctors at UNC Hospital, informed him that he was not able to work.

8. After initiating his contested case and during the discovery phase of the case, Petitioner and a friend, Lloyd King, went to Maria Parham and UNC Hospital and retrieved all known medical records and presented them to the Respondent.

9. Petitioner alleged at the hearing that at time of injury, 15 December 2003, he was drawing disability, approximately $530.00 per month, based on a prior injury. Although on disability, Petitioner was working on an “as needed” basis, approximately 12 to 18 hours per week, washing and detailing cars for Auto Mart of Henderson, a car sales company. Petitioner testified that he had worked for Auto Mart of Henderson for three months prior to being shot and was paid by Auto Mart of Henderson at a rate of $7.50 per hour. Petitioner also asserted that he was being paid that amount at the time of the criminally injurious conduct. Petitioner stated that since his injury, he has not worked anywhere.

10. At the hearing, Petitioner provided the Court with paperwork concerning his claim for work loss. Petitioner first supplied the Court with a letter from Deborah C. Hayes of Auto Mart of Henderson indicating that Petitioner started working “part time” with Auto Mart and “worked only as needed.” Second, Petitioner submitted a facsimile sheet purportedly from Auto Mart of Henderson (although it says “Edwards Auto”) showing that he had actually “stopped work” on 2 October 2003, a full two months before his injury on 15 December 2003. Petitioner provided no check stubs or tax returns. Petitioner provided no documentation to support that he worked after 2 October 2003 and no documentation to show that he was employed, gainfully or otherwise, on 15 December 2003.

11. Laura Hay (hereinafter “Ms. Hay”) testified on behalf of Respondent at the hearing. Ms. Hay is a Claims Examiner with the Respondent agency. She has been employed as a Claims Examiner since 1988. Ms. Hay’s duties with the Respondent agency include, but are not limited to, processing claimants’ medical bills and work loss information and any allowable expenses claimed pursuant to applicable provisions of Chapter 15B of the North Carolina General Statutes.

12. In addition to other provisions of Chapter 15B, Ms. Hay is particularly familiar with the applicable statutes involving work loss and a claimant’s eligibility to receive work loss from the Respondent. Ms. Hay testified that a claimant is required under the victims compensation program to show that he or she is “gainfully employed” at the time of his or her injury.

13. Ms. Hay worked on Petitioner’s claim both before the Respondent’s 14 March 2005 decision to deny award and after Petitioner initiated this action and is therefore familiar with Petitioner’s case and his claim for compensation from the Respondent agency. Ms. Hay has reviewed Petitioner’s application and all other documents supplied to the Respondent during discovery of this contested case.

14. Ms. Hay noted that although Petitioner indicated on his application that he was seeking lost wages, he stated he was not employed at the time of the criminally injurious conduct and did not otherwise supply the Respondent with any information about an employer. Ms. Hay testified that because it is the responsibility of a claimant, such as the Petitioner, to provide employment information to the Respondent, and that the Petitioner stated on his application that he was not employed at the time of the criminally injurious conduct, the Respondent had no reason to dispute Petitioner’s assertion or the accuracy of his stated unemployment status.

15. Although Petitioner noted that he was not employed on his application, the Respondent sent Petitioner an Income Verification form for Petitioner to complete. A claimant’s employer typically completes the form.

16. Petitioner received and completed the Income Verification form. Petitioner listed on his Income Verification form that he had no employer and wrote “N/A” beside all corresponding employment and wage questions. On or about 13 October 2004, counsel for the Petitioner returned the form to the Respondent on behalf of Petitioner.

17. According to Ms. Hay, based upon all information supplied by Petitioner to the Respondent, including his application and his Income Verification form, the Respondent had absolutely no knowledge that Petitioner had alleged he was employed when the Respondent’s Director made her decision to deny Petitioner’s claim on 14 March 2005.

18. Prior to the Respondent’s denial of his claim and again prior to hearing of the contested case, Ms. Hay personally verified all of Petitioner’s accounts with providers and learned that all of his bills had been paid by Medicare and Medicaid and as of the date of the hearing had no outstanding medical bills. Additionally, Ms. Hay noted that on several of the medical documents Petitioner supplied to the Respondent during discovery, Petitioner was listed as “unemployed.”

19. Ms. Hay also testified that the Respondent cannot pay for expenses, such as future surgeries, incurred after one year from the date of the criminally injurious conduct.

Based upon the foregoing Findings of Fact, the undersigned makes the following:

CONCLUSIONS OF LAW

1. The parties received proper notice of hearing in this contested case and the OAH has jurisdiction over the parties and the subject matter of Petitioner’s contested case pursuant to Chapters 15B and 150B of the North Carolina General Statutes.

2. Respondent has the authority and responsibility under North Carolina General Statutes Chapter 15B, the “North Carolina Crime Victims Compensation Act,” to administer the Act in North Carolina, including the investigation and award or denial of claims.

3. Pursuant to N.C.G.S. § 150-34(a), in making a decision, the “administrative law judge shall decide the case based upon the preponderance of the evidence, giving due regard to the demonstrated knowledge and expertise of the agency with respect to facts and inferences within the specialized knowledge of the agency.” (emphasis added). Under the totality, deference should be given to the Respondent agency.

4. The Petitioner bears the burden of establishing, by substantial evidence, that he is entitled as a “claimant,” pursuant to N.C.G.S. § 15B-2(2), to compensation from the Respondent. Regarding awards of compensation, N.C.G.S. § 15B-4 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.” Substantial evidence is defined pursuant to N.C.G.S. § 15B-2(12a) as “relevant evidence that a reasonable mind might accept as adequate to support a conclusion.”

5. By stipulation, the Petitioner was the “victim” of “criminally injurious conduct” as those terms are defined in N.C.G.S. §§ 15B-2(5) and (13).

6. By stipulation, the Petitioner is not entitled to medical expenses as an “allowable expense” or “economic loss” because a “collateral source” has paid for the expenses pursuant to N.C.G.S. §§ 15B-2(1), -2(3), -2(10) and -11(d). Furthermore, pursuant to N.C.G.S. § 15B-11(a)(2), Petitioner had only one year from 15 December 2003 in which to incur economic losses. All losses have been paid. Therefore, Petitioner’s future surgeries are “timed-out” by applicable law as they are scheduled after the one-year deadline.

7. Finally, Petitioner has failed to show that he is entitled to “work loss.” Pursuant to N.C.G.S. § 15B-2(14), “work loss”

means loss of income from work that the injured person would have performed if he had not been injured and expenses reasonably incurred by him to obtain services in lieu of those he would have performed for income, reduced by any income from substitute work actually performed by him, or by income he would have earned in available appropriate substitute work that he was capable of performing but unreasonably failed to undertake. Compensation for work loss will be limited to 26 weeks commencing from the date of the injury, and compensation shall not exceed three hundred dollars ($ 300.00) per week. A claim for work loss will be paid only upon proof that the injured person was gainfully employed at the time of the criminally injurious conduct and, by physician's certificate, that the injured person was unable to work. (emphasis added).

8. Petitioner is not eligible to recover work loss because he did not comply with the provisions of N.C.G.S. § 15B-2(14). It is the claimant’s responsibility to provide work loss verification information and corresponding documentation. Petitioner asserts he was employed at the time that he got shot but provided absolutely no documentation to substantiate the allegation. At best, Petitioner has demonstrated that his “work” ended with Auto Mart of Henderson two full months before the date of the criminally injurious conduct. Also, his work schedule was sporadic and only “when needed.” Petitioner failed to show that at the time he was shot on 15 December 2003 he was “gainfully employed.” Furthermore, Petitioner has failed to demonstrate “by physician’s certificate that he was unable to work.”

9. Petitioner failed to provide by substantial evidence that he incurred an allowable expense, work loss, or economic loss within the meaning of Chapter 15B because the Petitioner provided the Respondent with absolutely no documentation or other evidence at the hearing that he has medical expenses or any other allowable expense.

10. Overall, Petitioner has failed to provide substantial evidence to establish that the requirements for an award have been met pursuant to N.C.G.S. §§ 15B-4(a) and 15B-2(12a). Petitioner is, therefore, not entitled to compensation from the Respondent.

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the following:

DECISION

It is hereby Recommended that the Respondent DENY Petitioner’s claim because the Petitioner did not prove by substantial evidence that he is entitled to an award.

NOTICE

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this decision issued by the undersigned, and to present written arguments to those in the agency who will make the final decision. N.C.G.S. § 150B-36(a). In accordance with N.C.G.S. § 150B-36 the agency shall adopt each finding of fact contained in the Administrative Law Judge’s decision unless the finding is clearly contrary to the preponderance of the admissible evidence. For each finding of fact not adopted by the agency, the agency shall set forth separately and in detail the reasons for not adopting the finding of fact and the evidence in the record relied upon by the agency in not adopting the finding of fact. For each new finding of fact made by the agency that is not contained in the Administrative Law Judge’s decision, the agency shall set forth separately and in detail the evidence in the record relied upon by the agency in making the finding of fact. The agency shall adopt the decision of the Administrative Law Judge unless the agency demonstrates that the decision of the Administrative Law Judge is clearly contrary to the preponderance of the admissible evidence in the official record. The agency that will make the final decision in this case is the North Carolina Crime Victims Compensation Commission.

ORDER

It is hereby ordered that the agency making the final decision in this matter serve a copy of the final decision to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714, in accordance with N.C.G.S. § 150B-36.

IT IS SO ORDERED.

This the 4th day of October, 2005.

______________________________

Robert A. Bryan, Jr. Administrative Law Judge

Temporary Administrative Law Judge

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