STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF CUMBERLAND 04 CPS 1176

|MORENO EDOARDO LOVEJOY, ) |) | |

|Petitioner, |) | |

| |) | |

|v. |) | |

| |) | |

|NORTH CAROLINA DEPARTMENT OF CRIME CONTROL AND PUBLIC SAFETY, |) |DECISION |

|VICTIM COMPENSATION SERVICES DIVISION, CRIME VICTIMS |) | |

|COMPENSATION COMMISSION |) | |

|Respondent. |) | |

| |) | |

| |) | |

| |) | |

THIS MATTER came on to be heard before the Honorable Beryl E. Wade, Administrative Law Judge, on 10 May 2005 in Fayetteville, North Carolina with an additional telephone hearing on 19 August 2005.

APPEARANCES

For Petitioner: Moreno Edoardo Lovejoy, Pro Se

211 Helen Street

Fayetteville, North Carolina 28303

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, Moreno Edoardo Lovejoy.

2. Isabella Lovejoy.

RESPONDENT’S WITNESSES

1. None.

EXHIBITS

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

1. None.

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

1. None.

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 Edoardo Moreno Lovejoy (hereinafter “Petitioner”) who testified on his own behalf at the hearing. On 7 May 2003 at approximately 9:20 p.m., Petitioner was shot in a “drive-by” shooting 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). (Hearing Tape 1 of 1, Side A; Respondent’s Prehearing Statement)

2. On 6 June 2003, 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). (Hearing Tape 1 of 1, Side A)

3. On Petitioner’s application, he stated that he was “covered” by Tricare Health Insurance at the time of his injuries related to the 7 May 2003 criminally injurious conduct. (Hearing Tape 1 of 1, Side A)

4. On 3 May 2004, following a thorough investigation and review of Petitioner’s claim and documentation submitted, the Respondent’s Director denied Petitioner’s claim for failure of Petitioner to show “economic loss” pursuant to N.C.G.S. § 15B-2. (Respondent’s Prehearing Statement and Documents Constituting Agency Action) On 3 May 2004, 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”). (Respondent’s Prehearing Statement and Documents Constituting Agency Action)

5. On 14 July 2004, the Petitioner filed a form Petition for a Contested Case Hearing with the OAH alleging that the Respondent acted erroneously. (Petition for a Contested Case Hearing)

I. PETITIONER’S MEDICAL EXPENSES

6. During discovery Petitioner provided the Respondent with all known medical bills and supporting medical documentation related to the injuries suffered on 7 May 2003.

7. Although the Respondent requested Petitioner to submit all known medical bills, many of the bills Petitioner supplied the Respondent during discovery were not supplied to the Respondent prior to its decision on 3 May 2004. Respondent carefully considered each bill and verified the balance on each medical bill. (Hearing Tape 1 of 1, Side A)

8. Based upon a thorough review of all medical bills submitted and a verification of the balance owed to each provider and out-of-pocket expenses incurred by the Petitioner, the Respondent agrees that the following providers are eligible to be paid as an “allowable expense” pursuant to N.C.G.S. §§ 15B-2(1) and -16:

| | |Claimant |

| |Balance Owed |Out-of-Pocket |

| |Provider |Expenses |

|Provider Name and Address | | |

| |

|Bills Submitted at 10 May 2005 Hearing |

|Cape Fear Valley Medical Center |$85.39 |$0.00 |

|Cumberland County Hospital System | | |

|P.O. Box 788 | | |

|Fayetteville, NC 28302-0788 | | |

|Pathology Partners, Inc. |$ 50.50 |$0.00 |

|P.O. Box 222281 | | |

|Dallas, TX 75222-2281 | | |

|Fayetteville Ambulatory Surgery Center |$ 69.08 |$0.00 |

|1781 Metromedical Drive | | |

|Fayetteville, NC 28304 | | |

|CFVHS ED Physicians |$126.50 |$0.00 |

|P.O. Box 5799 | | |

|Asheville, NC 28813 | | |

|Cape Fear Center for Digestive |$ 53.75 |$30.00 |

|P.O. Box 87388 | | |

|Fayetteville, NC 28304 | | |

|Cape Fear Podiatry |$ 76.92 |$0.00 |

|1738 Metromedical Drive | | |

|Fayetteville, NC 28304 | | |

| |

|Bills Submitted at 19 August 2005 Telephone Hearing |

|Cape Fear Valley Medical Center |$372.28 |$0.00 |

|Cumberland County Hospital System | | |

|P.O. Box 788 | | |

|Fayetteville, NC 28302-0788 | | |

|Carolina Regional Radiology, PA |$ 42.00 |$0.00 |

9. Further, in addition to an award to the providers listed above in conformance with N.C.G.S. §§ 15B-2(1) and -16, Petitioner is eligible for an award of $30.00 for the out-of-pocket expenses incurred at Cape Fear Center for Digestive.

10. Although requested by Petitioner, Respondent cannot pay for expenses, such as future surgeries, incurred after one year from the date of the criminally injurious conduct.

II. PETITIONER’S WORK LOSS CLAIM

11. Although claiming work loss as defined by N.C.G.S. § 15B-2(14), Petitioner provided no documentation to support this assertion. (Hearing Tape 1 of 1, Side A) 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.

12. During the Respondent’s investigation process of a claim for compensation, regardless of what a claimant may indicate on his or her application regarding employment or claim for work loss, the Respondent’s policy requires that the Respondent send the claimant an Income Verification form to complete. It is the claimant’s responsibility to ensure that his or her employer completes the Income Verification form. Therefore, a claimant’s employer typically completes the form.

13. Petitioner alleged on his application and at the hearing on 10 May 2005 that at time of injury, 7 May 2003, he was “employed” with Pro Staffing (Temporary Service) of Fayetteville. Petitioner received the Income Verification form and Jennifer Woodard of Pro Staffing completed the form on behalf of Petitioner. On the form Ms. Woodard wrote that Petitioner was not on an assignment at the time of his injury on 7 May 2003. Further, Ms. Woodard stated that, “We are a Temp. Agency. He had only worked 2 days for us on 2 different assignments.” Although given multiple chances, including a 30 day period after the 10 May 2005 hearing to provide substantial evidence of “gainful employment” from Pro Staffing, other than this Income Verification form, Petitioner provided no documentation whatsoever from Pro Staffing to support his assertion that he was employed, gainfully or otherwise, on 7 May 2003.

14. Although given repeated opportunities, Petitioner failed to submit any documentation showing additional incurred expenses eligible for an award pursuant to Chapter 15B of the North Carolina General Statutes.

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 Recommended 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.” The mere fact that a claimant files an application with the Commission does not automatically grant the claimant the right to receive an award. See N.C.G.S. § 15B-25 (Chapter 15B “shall not be construed to create a right to receive compensation.”).

5. In examining North Carolina General Statutes, “[t]he primary goal of statutory construction is to give effect to the legislature’s intent. To that end, a statute clear on its face must be enforced as written. We will presume that the legislature acted with care and deliberation, and, when appropriate, reference will be made to the purpose of the legislation.” Bowers v. City of High Point, 339 N.C. 413, 419-20, 451 S.E.2d 284, 289 (1994)(internal citations omitted)(emphasis added). The statutory provisions of Chapter 15B of the North Carolina General Statutes are “clear on their faces.” Therefore, they must be enforced and interpreted “as written.”

6. 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).

7. The Petitioner is only entitled to medical expenses as an “allowable expense” or “economic loss” not already paid or subject to payment from a “collateral source” pursuant to N.C.G.S. §§ 15B-2(1), -2(3), -2(10) and -11(d). These expenses should be directed to the providers identified in the list provided above in paragraph 8 and paid in conformance with N.C.G.S. §§ 15B-2(1) and -16. Additionally, the Petitioner is entitled to payment of $30.00 for the out-of-pocket expenses incurred and explained above in paragraph 8.

8. Furthermore, pursuant to N.C.G.S. § 15B-11(a)(2), Petitioner had only one year from 7 May 2003 in which to incur economic losses. All losses except those listed above in paragraph 8 have been paid. Therefore, Petitioner’s future surgeries are “timed-out” by applicable law as they are scheduled after the one-year deadline.

9. 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).

10. 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 he had worked at two assignments for a temporary service prior to the date of the criminally injurious conduct. Pro Staffing stated that he was “not on assignment” at the time of the injury. Petitioner failed to show that at the time he was shot on 7 May 2003 he was “gainfully employed.” Furthermore, Petitioner has failed to demonstrate “by physician’s certificate that he was unable to work.”

11. Petitioner failed to provide by substantial evidence that he incurred an allowable expense or economic losses other than what is provided in detail in paragraph 8 above and failed to provide evidence of work loss within the meaning of Chapter 15B.

12. Overall, Petitioner has established that he is eligible for an “award” of the above listed providers only and he has failed to provide substantial evidence to establish that the requirements for a “work loss” award have been met pursuant to N.C.G.S. §§ 15B-4(a) and 15B-2(12a). Petitioner is, therefore, not entitled to work loss compensation from the Respondent and is only eligible for certain specific allowable expenses identified above.

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

DECISION

It is hereby Recommended that the Respondent AWARD Petitioner’s claim as specified herein and DENY Petitioner’s work loss claim because the Petitioner did not prove by substantial evidence that he is entitled to an award for work loss but did provide substantial evidence to show that he is eligible for certain allowable expenses.

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 20th day of September, 2005.

______________________________

Beryl E. Wade Administrative Law Judge

Administrative Law Judge

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