In re Mitchell

SUSAN G. SHERIDAN

Commissioners:
Susan G. Sheridan, Presiding
William L. Byers IV
Necol Russell-Washington
ORDER OF A THREE-

COMMISSIONER PANEL

{¶1}
On June 26, 2007, the applicant, Lisa Mitchell, filed a compensation application as the result of the death of her son Christopher Mitchell. The claim was assigned Claim No. V2007-52379-0, by the Attorney General. Although the Attorney General determined in a finding of fact and decision that Christopher Mitchell qualified as a victim of crime and the applicant was granted an award of reparations in the amount of $949.74, which represented $858.25 for payment of the funeral expense to FJ Corrigan Funeral Services and $91.49 to the applicant for lost wages she suffered to attend her son's funeral, the Attorney General denied the applicant's claim for counseling expenses pursuant to R.C. 2743.51(F)(2), since the applicant did not qualify as an immediate family member under R.C. 2743.51(W). Upon reconsideration, the Attorney General rendered a Final Decision refusing to modify the initial decision and asserting that the applicant was not eligible because she did not reside in the same household as her son. Consequently, her claim for additional work loss was denied. {¶2} On May 5, 2008, the applicant filed an appeal from the Attorney General's Final Decision of April 18, 2008. The Court of Claims assigned this appeal Claim No. the crime scene on the day of the murder. Furthermore, the detective was unaware of whether Ms. Mitchell ever went to the crime scene or the coroner's office. Finally, the detective stated that the apartment was orderly, there were no signs of a struggle, and the decedent's bloody clothing and a towel were removed prior to the applicant's arrival outside the crime scene. The applicant did not attend the hearing so she was unable to cross-examine the detective or provide testimony concerning her observations at the crime scene. {¶7} On July 18, 2011, the applicant filed a notice of appeal from the Decision of the Panel of Commissioners to a judge of the Court of Claims. On November 4, 2011, a hearing was held before a judge of the Court of Claims. On November 22, 2011, Judge Travis rendered a decision remanding this claim to a panel of commissioners since:

a. "the panel of commissioners did not have the opportunity to fully consider all the relevant evidence in this matter. Therefore, in the interest of justice, the court will remand applicant's claim to a three commissioner panel to consider applicant's testimony and additional evidence presented by the parties."
b. The hearing based on the judge's remand was held on February 22, 2012 at 10:00 A.M.

{¶8}
The applicant, Lisa Mitchell, and Assistant Attorney General Matthew Hellman attended the hearing and presented testimony and oral arguments for the panel's consideration. {¶9} The applicant contends that she went to the crime scene after the incident and although her son's body was gone, "part of his remains were present." Due to her witnessing the scene she suffered severe psychological injury so disabling that she has been unable to return to work. The applicant also related that the following month her father died of a massive heart attack and eight months later her mother died. {¶ 19} Finally, the applicant stated that she had to return to work at Trader Joe's since she was the sole bread winner in the family. Furthermore, she reduced her working hours from 38 to 27 hours per week. The applicant submitted an attorney fee bill she received from her former attorney Gregory Robey that was identified as Applicant's Exhibit 1 and admitted into evidence. Whereupon, the hearing was concluded. {¶ 20} On March 21, 2012, the applicant filed a letter from Trader Joe's dated March 15, 2012. The letter in pertinent part stated:

a. "This is to confirm that Lisa Mitchell was employed at Trader Joe's Company from 09/21/2005 through 4/03/2010.
b. "While employed, Ms. Mitchell went on two leave of absences as follows:
c. "9/21/2007 to 11/15/2007 Personal
d. "9/11/2009 to 4/03/2010 Medical"

{¶
21} On April 3, 2012, the Attorney General filed a reply to the applicant's additional documents. The Attorney General submits that the letter from Trader Joe's demonstrates that the first work loss incurred by the applicant happened over three months after the death of her son. Furthermore, her weekly hours were consistent with the hours worked prior to her son's death. The Attorney General states: "[i]n light of this, Ms. Mitchell's leave of absence from work does not - in and of itself - establish the necessary degree of debilitating injury." {¶ 22} Based upon the Supreme Court holdings in Paugh v. Hanks (1983), 6 Ohio St. 3d 72, 6 OBR 114 451 N.E. 2d 83 and Burris v. Grange Mut. Cos. (1989), 46 Ohio St. 3d 84, 545 N.E. 2d 83, the Court of Claims has espoused certain qualitative factors to be examined when determining who may qualify as a victim in their own right. {¶ 23} In re Clapacs (1989), 58 Ohio Misc. 2d 1, at paragraphs one and two of the syllabus states:

a. "1. The Court of Claims, Victims of Crime Division, will use a case-by-case analysis to ascertain the impact a criminal incident may
have upon a person other than the individual directly involved in the crime and will consider, inter alia, the following factors: (a) the person's proximity to the location of the crime, (b) the relationship between that person and the person actually assaulted, and (c) the shock directly attributable to the sensory and contemporaneous observance of the incident. (R.C. 2743.51(L), applied).
b. "2. The phrase 'personal injury' contained in the R.C. 2743.51(L) definition of 'victim' includes both psychological injury as well as physical harm. Thus, emotional distress, experienced as a result of criminal activity, constitutes 'personal injury'."
c. In re Fife (1989), 59 Ohio Misc. 2d 1, at paragraph two of the syllabus states:
d. "2. The term 'personal injury,' as used in R.C. 2743.51(L)(1) in reference to a psychological injury, requires a showing of more than mere sorrow, concern or mental distress. That is, the psychological injury must be of such a debilitating nature as to impede or prohibit the resumption or enjoyment of day-to-day activities."

{¶
24} This court recognized in Clapacs and Fife, that emotional distress due to a direct awareness of a criminal incident can be classified as personal injury. As such, persons other than the victim per se may qualify as victims in their own right. The determination of whether a person qualifies as a victim in one's own right is to be based upon a case-by-case analysis. See Clapacs. Additionally, the court also determined that the psychological injury suffered by the injured party must be so debilitating that it impedes or prohibits participation in day-to-day activities. The court emphasized that one must analyze the nature of the alleged injury and its relationship to the criminal incident. See Fife. Subsequently, a panel of commissioners In re Anderson (1991), 62 Ohio Misc. 2d 268, 598 N.E. 2d 223, modified the contemporaneous sensory perception requirement to allow for instances where an individual arrives at the scene shortly after the incident. mental health counselor who provides an opinion within a reasonable degree of medical or psychological certainty that the applicant sustained severe psychological injury which impeded or prohibited her from performing or enjoying her daily activities. The case file lacks such documentation. Mere sorrow, concern or mental distress are not sufficient to satisfy the psychological trauma necessary to qualify as an indirect victim. {¶36} Accordingly, we find the applicant has not satisfied her burden of proof and the panel's decision of June 24, 2011 is adopted. {¶37} IT IS THEREFORE ORDERED THAT {¶38} Applicant's Exhibit 1 is admitted into evidence; {¶39} Applicant's claim is DENIED and judgment is rendered for the state of Ohio; {¶40} Costs are assumed by the court of claims victims of crime fund.

________

SUSAN G. SHERIDAN

Presiding Commissioner

________

WILLIAM L. BYERS, IV

Commissioner

________

NECOL RUSSELL-WASHINGTON

Commissioner
ID #I:\Victim Decisions to SC Reporter\Panel Decisions\2012\March - May 2012\V2010-50396 Mitchell.wpd\DRB-tad

A copy of the foregoing was personally served upon the Attorney General and sent by regular mail to Cuyahoga County Prosecuting Attorney and to: Filed 3-13-12 Jr. Vol. 2282, Pgs. 136-140
Sent to S.C. reporter 10-9-12