DANIEL R. BORCHERT Magistrate Judge
Sent to S.C. Reporter 12/21/22
DECISION OF THE MAGISTRATE
DANIEL R. BORCHERT Magistrate Judge
{¶1} On May 21, 2021, applicant, Wanda Jolly, filed a compensation application with the Ohio Attorney General alleging that three people attacked her with a knife in her home on February 1, 2021. Two of the three people live in the apartment unit below hers. Applicant sought reimbursement for counseling expenses, replacement services, and lost wages.
{¶2} On June 1, 2021, the Attorney General issued a finding of fact and decision denying applicant's claim because applicant was convicted of domestic violence in April 2014. Applicant submitted a request for reconsideration on August 7, 2021. She included a journal entry expunging a conviction and a docket printout showing that she was found not guilty of another offense.
{¶3} On January 4, 2022, the Attorney General rendered a Final Decision, in which the Attorney General denied applicant's claim, but for different reasons. Her claim for counseling expenses was denied because a portion of her counseling expenses had already been recouped from Medicaid. Her claim for other expenses was denied because she did not provide supporting documentation showing economic loss.
{¶4} On February 7, 2022, applicant filed a notice of appeal from the Final Decision of the Attorney General. Therein, she stated that the cuts to her hands from the attack took two and a half or three months to fully heal. Because she could not use her hands, she lost her job as a home health aide. She also claimed that she could provide receipts for the expenses incurred as a result of moving out of her former home, away from the attackers.
{¶5} Hence, a hearing was held before this magistrate on April 19, 2022. Assistant Attorney General Heidi James appeared on behalf of the state of Ohio. Applicant was given ten (10) minutes to appear. However, applicant did not attend the hearing.
{¶6} The Assistant Attorney General clarified that the Attorney General is no longer denying the claim on the basis of applicant's prior conviction. However, the Assistant Attorney General argued that applicant is not entitled to an award of reparations because she has not proven, by a preponderance of the evidence, that she incurred allowable expenses. Applicant claimed that she incurred moving expenses, but she did not provide documentation for a moving truck, moving facility, or hiring assistance moving. Nor did the Attorney General receive documentation showing that she needed to move as part of her remedial care. The Assistant Attorney General further argued that the living expenses claimed by applicant are not compensable under the law.
{¶7} The Attorney General also argued that applicant failed to provide documentation showing that she was unable to work. On the physician report from Neon Health Center for medical treatment applicant received after the attack, there was no indication that she could not return to work. Furthermore, applicant has not provided proof of the amount of work loss. The Assistant Attorney General reported that applicant did not provide her complete 2021 tax return or the name of the business or people for which she was working at the time of the attack. In its brief, the Attorney General additionally argued that applicant's claim for counseling expenses was denied because they were covered by Medicaid. Whereupon, the hearing was concluded.
{¶8} R.C. 2743.52(A) places the burden of proof on an applicant to satisfy the Court of Claims that the requirements for an award have been met by a preponderance of the evidence. In re Rios, 8 Ohio Misc.2d 4, 455 N.E.2d 1374 (Ct. of Cl. 1983).
{¶9} Black's Law Dictionary Sixth Edition (1990) defines burden of proof as: "the necessity or duty of affirmatively proving a fact or facts in dispute on an issue raised between the parties in a cause. The obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court."
{¶10} Black's Law Dictionary Sixth Edition (1990) defines preponderance of the evidence as: "evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not."
{¶11} From a careful review of the case file and consideration of the argument presented at the hearing, it is undisputed that applicant is a victim of crime. It is also undisputed that she was attacked in the common hallway of her apartment building. The Attorney General asserted in its brief that it did not have documentation that the offender was on the lease in the building or that moving was necessary for applicant's remedial treatment or care. However, the police report indicates that Myra Eutsey, the woman who stabbed applicant, lives in the apartment downstairs from applicant's apartment. Indeed, the police report indicates that multiple people who were involved with the stabbing lived in or were visiting that downstairs apartment. That is consistent with applicant's claims in her application. The Attorney General's Field Investigation Report indicates that Myra Eutsey was arrested on May 11, 2021, pled guilty to attempted felony assault and was sentenced to two years of probation.
{¶12} Allowable expenses are "reasonable charges incurred for reasonably needed products, services, and accommodations, including those for medical care, rehabilitation, rehabilitative occupational training, and other remedial treatment and care." R.C. 2743.51(F)(1). Hotel expenses can be allowable expenses if the applicant cannot remain at home due to fears of continuing criminal activity. In re Segebart, 61 Ohio Misc.2d 428, 579 N.E.2d 796 (Ct. of Cl. 1989); In re Fields, 61 Ohio Misc.2d 376, 579 N.E.2d 318 (Ct. of Cl.1989), In re Andrews, V92-47246sc (1-29-93); and In re Farley, V91-54842sc (11-23-92).
{¶13} In her application, applicant stated that she moved out of her apartment because two of the attackers live in the apartment downstairs from hers, rendering her apartment unsafe. She stated that she has been paying rent to live elsewhere, in addition to paying for her now-unsafe apartment, for three months while she looked for a new home. She related that she found a new place to live and had paid the deposit, but she was waiting on the inspection to move in. In addition to paying a second rent, she asserted that she has stayed in hotels on occasion to get privacy. She also claimed that other expenses were related to her move.
{¶14} Applicant submitted to the Attorney General hotel receipts from February 19, 2021 to February 22, 2021, February 28, 2021 to March 2, 2021, and March 14, 2021 to March 16, 2021. She also submitted rent receipts from February through July 2021 showing that she paid $300 per month.
{¶15} The undersigned magistrate finds that applicant had a reasonable fear of continued violence if she were to remain at the apartment where she was attacked. She was attacked by her neighbor, and there is no indication that her attacker was held in jail for the three months that applicant rented a second accommodation. The attacker was arrested on May 11, 2021. Furthermore, there is no evidence in the record that the other individuals involved in the attack were in detention.
{¶16} However, because applicant did not testify at the hearing, there is no evidence in the record that applicant reasonably needed to pay a second rent for longer than the three months originally mentioned in her application. Nor is there a preponderance of the evidence supporting how the other expenses applicant claimed- laundry, premises repair, and a new refrigerator-were reasonably related or needed. Furthermore, basic living expenses are not compensable. In re Segebart, 61 Ohio Misc.2d 428, 579 N.E.2d 796 (Ct. of Cl. 1989); In re Khatab, 2013-00046VI (May 24, 2013). Lastly, because she was already renting another accommodation, the hotel stays were not a reasonably needed accommodation.
{¶17} Applicant bears the burden of proving by a preponderance of the evidence that the requirements for an award have been met. Upon review of the evidence submitted by applicant to the Attorney General, the undersigned magistrate concludes that the only allowable expense for which applicant met her burden of proof was three months of rent. According to the receipts applicant provided, the three months of rent amount to $900.00.
{¶18} Applicant also sought an award for lost wages. There are two elements necessary to prove work loss. First, one must prove work loss was sustained by showing an inability to work. Second, one must prove the monetary amount of work loss. Both elements must be proven by corroborating evidence. In re Berger, 91 Ohio Misc.2d 85, 698 N.E.2d 93 (Ct. of Cl. 1994). Applicant did not provide proof that she lost work due to an inability to work. Nor did she prove the monetary amount of work loss. Therefore, applicant has not met her burden of proof that she should receive an award for work loss.
{¶19} Additionally, applicant sought an award for counseling expenses. The Attorney General denied that claim because applicant could have recovered her costs for counseling expenses from a collateral source, Medicaid. "The attorney general or the court of claims shall reduce an award of reparations or deny a claim for an award of reparations that is otherwise payable to a claimant to the extent that the economic loss upon which the claim is based is recouped from other persons, including collateral sources." R.C. 2743.60(D). Medicaid is a collateral source. R.C. 2743.51(B)(3). Moreover, applicant has not provided any receipts showing that she paid out of pocket for medical or counseling expenses. Therefore, applicant has not met her burden of proof that she should receive an award for counseling expenses.
{¶20} In conclusion, applicant is a victim of criminally injurious conduct. Applicant met her burden of proof that she incurred allowable expenses for renting additional accommodations for three months for $900.00 total. But she did not meet her burden of proof regarding any other claimed economic loss. Therefore, I recommend that the Attorney General's Final Decision of January 4, 2022, be affirmed, in part, and reversed, in part, and that this claim be remanded to the Attorney General's Office for payment of an award in accordance with this decision.
{¶21} A party may file written objections to the magistrate's decision within 14 days of the filing of the decision, whether or not the court has adopted the decision during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files objections, any other party may also file objections not later than ten days after the first objections are filed. A party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion within 14 days of the filing of the decision, as required by Civ.R. 53(D)(3)(b).