STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA

COUNTY OF WATAUGA |IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

07 CPS 2292 | |

| | | |

|HILLARY HOLT, |) | |

| |) | |

|Petitioner, |) | |

| |) | |

|v. |) |DECISION |

| |) | |

|N.C. CRIME VICTIMS COMPENSATION COMMISSION, |) | |

| |) | |

|Respondent. |) | |

| |) | |

| |) | |

THIS MATTER came on for hearing before the Honorable Selina M. Brooks, Administrative Law Judge, on August 6, 2008, in Asheville, North Carolina.

APPEARANCES

For Petitioner: Benjamin S. Burnside

The Deuterman Law Group, P.A.

101 S. Elm Street, Suite #170

Greensboro, NC 27401

For Respondent: Tamara S. Zmuda

Sebastian Kielmanovich

Assistant Attorney General

North Carolina Department of Justice

Crime Control Section

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

PETITIONER’S WITNESSES

No witnesses testified on behalf of Petitioner.

RESPONDENT’S WITNESSES

The following witnesses appeared and testified on behalf of Respondent:

1. Hillary Holt

2. Liddie Shropshire, Investigator, North Carolina Department of Crime Control and Public Safety, Division of Victim Compensation Services

EXHIBITS

The following exhibits were admitted into evidence on behalf of Respondent:

1. Victim Compensation Application

2. Decision of Director Denied and Cover Letter

3. Petitioner’s Petition for Contested Case Hearing

4. Respondent’s First Set of Interrogatories, Admissions and Requests for Production of Documents to Petitioner and Petitioner’s Responses

5. Respondent’s Second Set of Interrogatories, Admissions and Requests for Production of Documents to Petitioner and Petitioner’s Responses

6. Medical Expense Summary

7. Petitioner’s Medical Bills

8. Petitioner’s GameKeeper Restaurant Paystub for 4/19/06 – 5/02/06

9. The Gamekeeper Restaurant Employer Quick report

10. Affidavit of Anh-Mai Nguyen

11. Respondent’s Second Set of Interrogatories, Answer No. 1.

12. Examples of Physician Certificates for Work Loss

13. N. C. Gen. Stat. § 108A-57

14. N. C. Gen. Stat. 42 CFR § 447.15

15. N. C. Gen. Stat. § 44-49

16. N. C. Gen. Stat. § 44-50

17. N.C. Gen. Stat. § 15B-2

18. Proposed Order on Final Pretrial Conference

ISSUES

1. Whether Petitioner has established by substantial evidence that the economic loss upon which her claim is based either has not or will not be recouped from a collateral source.

2. Whether Petitioner has established by substantial evidence that she is entitled to work loss.

FINDINGS OF FACT

1. The Petitioner in this case is Hillary Holt. Petitioner is a resident of Watauga County, North Carolina.

2. Respondent is an agency created under Chapter 15B of the North Carolina General Statutes charged with the responsibility of administering the North Carolina Crime Victims Compensation Fund.

3. Petitioner initiated this contested case following Respondent’s determination to deny her claim for compensation.

4. Both parties are properly before this Administrative Law Judge, in that jurisdiction and venue are proper, that both parties received notice of the hearing and Petitioner received, by certified mail, the Decision of Director: Denied, mailed by Respondent on October 24, 2007. (Respondent’s Exhibit 2)

5. On April 29, 2006, Petitioner was the victim of criminally injurious conduct as a result of a motor vehicle incident.

6. Petitioner received medical treatment and incurred medical expenses as a result of the April 29, 2006 incident.

7. Petitioner qualified for emergency North Carolina Medicaid. Medicaid paid a majority of Petitioner’s medical expenses; however, Medicaid did not pay for Petitioner’s medical expenses owed to Appalachian Orthopedics in the amount of $15,257.40 and Watauga Medical Center in the amount of $1,120.00.

8. As a result of a civil settlement involving the April 29, 2006 incident, Petitioner received $30,000 for economic loss from North Carolina Farm Bureau Mutual Insurance Co.

9. Pursuant to N.C. Gen. Stat. § 108A-57, $10,000 of Petitioner’s $30,000 settlement must be used to partially reimburse Medicaid, Appalachian Orthopedics, and Watauga Medical Center as follows: (Respondent’s Exhibit 10)

i. Medicaid is entitled to $7,515.60

ii. Appalachian Orthopedic is entitled to $2,314.50

iii. Watauga Medical Center is entitled to $169.90

10. After prorating the $10,000 and disbursing the prorated shares, Petitioner owes Appalachian Orthopedics $12,942.90 and Watauga Medical Center $950.10. Petitioner’s total outstanding medical expense balance in relation to the April 29, 2006 incident is $13,893.

11. Petitioner failed to include in her crime victim compensation application a Physician’s Certificate, as provided by N.C. Gen. Stat. § 15B-2 (14), and Respondent did not receive a Physician’s Certificate prior to denying the claim.

12. Petitioner’s Social Security Administration application excerpt, presented in evidence at the contested case hearing, failed to satisfy the requirements set forth in N.C. Gen. Stat. § 15B-2 (14). In particular, Petitioner’s excerpt failed to indicate that Petitioner was unable to work from a point in time to another point in time, as a result of the April 29, 2006 incident.

13. Petitioner failed to present in evidence at the contested case hearing a Physician’s Certificate, as provided by N.C. Gen. Stat. § 15B-2 (14), stating that Petitioner was unable to work from a point in time to another point in time, as a result of the April 29, 2006 incident.

Based upon the Findings of Fact set forth above, the undersigned hereby makes the following:

CONCLUSIONS OF LAW

1. All parties were properly before the Administrative Law Judge and jurisdiction and venue are proper. To the extent that the Findings of Fact contain Conclusions of Law or that the Conclusions of Law are Findings of Fact, they should be considered without regard to the given labels.

2. The subject matter of a contested case hearing in the Office of Administrative Hearings is the agency decision. Britthaven, Inc. v. North Carolina Dep't of Human Resources, 118 N.C. App. 379, 382-383, 455 S.E.2d 455, 459, disc. review denied, 341 N.C. 418, 461 S.E.2d 754 (1995). The purpose of the hearing is to “determine whether the petitioner has met its burden in showing that the agency substantially prejudiced petitioner's rights, and that the agency also acted outside its authority, acted erroneously, acted arbitrarily and capriciously, used improper procedure, or failed to act as required by law or rule.” Id. (citing N.C. Gen. Stat. § 150B-23(a)). Unless a statute provides otherwise, the petitioner has the burden of proof in all contested cases. Holly Ridge Assocs., LLC v. N.C. Dep't of Env't & Natural Res176 N.C. App. 594, 609, 627 S.E.2d 326, 336-337 (2006). See also, Peace v. Employment Sec. Comm'n, 349 N.C. 315, 328, 507 S.E.2d 272, 281 (1998).

3. 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.

4. Petitioner bears the burden of establishing, by substantial evidence, that she is entitled as a “claimant,” pursuant to N.C. Gen. Stat. § 15B-2(2), to compensation from Respondent.

5. N.C. Gen. Stat. § 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.”

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

7. Substantial evidence exists to show that Petitioner was the “victim” of “criminally injurious conduct” as those terms are defined in N.C. Gen. Stat. §§ 15B-2(5) and (13).

8. Substantial evidence exists to show that Petitioner incurred an “allowable expense” as that term is defined in N.C. Gen. Stat. §15B-2(1).

9. N.C. Gen. Stat. §15B-11 lists the grounds for denial of a claim for compensation or for the reduction of an award. Specifically, N.C. Gen. Stat. § 15B-11(d) states that “[a]n award that has been approved shall nevertheless be denied or reduced to the extent that the economic loss upon which the claim is based is or will be recouped from a collateral source.”

10. The term “collateral source” is defined in N.C. Gen. Stat. § 15B-2 (3) as “a source of benefits or advantages for economic loss otherwise compensable that the victim or claimant has received or that is readily available to the victim or the claimant from . . . (a) The offender . . . (b) Proceeds of a contract of insurance payable to the victim for loss that the victim sustained because of the criminally injurious conduct . . . (c) Social Security, Medicare, or Medicaid.”

11. Substantial evidence exists to show that the economic loss upon which Petitioner’s claim is based has been recouped from a collateral source. Petitioner received $30,000 in benefit or advantage for economic loss from a civil settlement from Farm Bureau Mutual Insurance Co. in relation to the April 29, 2006 incident.

12. The proceeds Petitioner received from the civil settlement are sufficient to pay for Petitioner’s outstanding medical bills. In particular, after disbursing $10,000 to Medicaid and the medical providers, Petitioner’s remaining funds ($20,000) are sufficient to pay for her outstanding total medical expenses ($13,893).

13. N.C. Gen. Stat. §15B-2 (14) states that “[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.” A physician’s certificate must indicate “that the injured person was unable to work” for a specific period of time, as a result of the criminally injurious conduct.

14. Substantial evidence exists to show that Petitioner’s Social Security Administration application excerpt failed to comply with the requirements contained in N.C. Gen. Stat. §15B-2 (14) as it does not indicate that Petitioner was unable to work for a specific time frame as a result of the April 29, 2006 incident.

15. Substantial evidence exists to show that Petitioner failed to present a Physician’s Certificate stating that Petitioner was unable to work for a specific period of time as a result of the April 29, 2006 incident.

16. Petitioner failed to show that Respondent: (1) substantially prejudiced her rights; and (2) either acted outside its authority, acted erroneously, acted arbitrarily and capriciously, used improper procedure, or failed to act as required by law or rule. Accordingly, Petitioner has failed to carry her burden under N.C. Gen. Stat. §150B-23(a).

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

PROPOSED DECISION

It is hereby PROPOSed that Respondent’s decision to deny Petitioner’s claim for Crime Victims Compensation be AFFIRMED on grounds that the Petitioner failed to carry her burden under N.C. Gen. Stat. §150B-23(a) and the preponderance of the evidence establishes that the victim received a collateral source of economic benefit that covered her outstanding medical expenses and that Petitioner failed to show by substantial evidence that she was entitled to work loss.

NOTICE

The North Carolina Crime Victims Compensation Commission will make the Final Decision in this contested case. Pursuant to 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 is hereby ordered that the North Carolina Crime Victims Compensation Commission 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 18th day of September, 2008.

______________________________

Selina M. Brooks Administrative Law Judge

Administrative Law Judge

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