DANIEL R. BORCHERT MAGISTRATE
Sent to S.C. Reporter 6/29/23
DECISION OF THE MAGISTRATE
DANIEL R. BORCHERT MAGISTRATE
{¶1} On December 3, 2020, applicant, Melanie Cates filed a compensation application as the result of the death of her mother Dorothy Cage. Applicant sought compensation for lost wages and counseling expenses.
{¶2} On April 1, 2021, the Attorney General issued a Finding of Fact and Decision. The Attorney General asserted that applicant was not a direct victim of criminally injurious conduct, so to qualify for reparations, the applicant needed to prove the following elements, by a preponderance of the evidence:
1) they had a close relationship with the primary victim;
2) they had direct awareness of the criminally injurious conduct or they arrived at the crime scene in its immediate aftermath;
3) they experience shock directly attributable to the sensory and contemporaneous observation of the crime scene and;
4) they sustained a severe psychological injury which was so debilitating that it impeded or prohibited them from participating in their day-to-day activities. This psychological injury must be more severe than mere sorrow, concern, mental distress or grief.
{¶3} The Attorney General's investigation revealed that applicant did not enter the crime scene in its immediate aftermath. Accordingly, applicant's claim for compensation was denied.
{¶4} On April 6, 2021, applicant filed a request for reconsideration. Applicant stated, on the day her mother was murdered, the offender called her and told her what he had done. Applicant entered the crime scene a few days after the crime. While applicant's mother's body was removed, the crime scene remained unchanged. Applicant's mother's blood was present throughout the home. Consequently due to the psychological injury applicant sustained at this time she was unable to work and sought counseling to deal with this issue. Applicant cited In re Hill, V2003-41158tc (3-24-04) affirmed jud (6-9-04), in support of her position.
{¶5} On August 4, 2021, the Attorney General rendered a Final Decision. The Attorney General granted applicant an award of reparations in the amount of $3,415.25, which represented work loss for the period October 14, through November 3, 2019, a medical expense incurred with Deryck Richardson, PHD, an expense with Holistic Wellness Solutions, and mileage expenses.
{¶6} On August 24, 2021, applicant filed a notice of appeal from the Attorney General's Final Decision. Applicant noted the only issue on appeal is charges incurred with Pathways for counseling expenses.
{¶7} Hence a hearing was held on November 15, 2022. Applicant, Melanie Cates, her attorney Michael Falleur, and Assistant Attorney General Candice Suffren appeared at the hearing.
{¶8} Applicant stated this appeal concerns counseling expenses. This appeal will turn on the reasonableness of the applicant's action in finding a suitable psychologist.
{¶9} The Attorney General stated applicant's counseling expenses were denied since she failed to use a readily available collateral source. At the time applicant was seeking counseling her insurance plan changed, applicant was aware of this change but did not seek a counselor in that network. Accordingly, the Attorney General's Final Decision should be affirmed.
{¶10} Melanie Cates was called to testify. She stated she realized she needed mental health counseling the day after her mother's murder. At that time, she sought counseling from Optima Behavioral Health, with counselor Debbie Sherman. She met with Ms. Sherman on October 18th. She met with Ms. Sherman on a weekly basis, but soon came to the realization that she was not making any progress.
{¶11} At the end of January, her employer contracted with United HealthCare (UHC). Applicant stated she went on UHC Website and located a list of eight providers, she called them but no one returned her call. She contacted United HealthCare. They provided her a list of eight counselors who were in the health carriers network. Again, she called these providers, and either they did not return her calls or stated they were not accepting new patients.
{¶12} At that time, she found Holistic Wellness Solutions and went to one appointment on January 25, 2020. Ms. Cates stated she talked to the therapist for approximately ten minutes. At that time she was told, she needed a therapist who specialized in trauma. Ms. Cates was told an appropriate therapist would contact her, however, after a week no one had called. She called back again, but no one returned her call.
{¶13} Applicant stated upon speaking with a friend, the friend suggested she contact Davia Stevenson. She found out Stevenson was not in her network, but was a Trauma specialist and was willing to take her on as a patient. Her first visit with Davia Stevenson was on February 12th. After these counseling sessions she felt better and was better able to deal with her situation. Even though she had to pay for the counseling out-of-pocket, she continued because the counseling was helping.
{¶14} Applicant did submit the expense to United HealthCare and they paid for the out-of-network provider and she was responsible for the rest approximately $220.00 per session. Applicant stated the counseling with Stevenson was very helpful and helped her back to the road to recovery.
{¶15} Upon cross-examination applicant was asked if she was aware of her new insurance plan with her employer. She stated she was.
{¶16} Her insurance carrier gave her a list of counselors which applicant attempted to contact. She related she contacted every counselor on the list. She waited thirty days and no one returned her call. It was at that time that she contacted Davia Stevenson.
{¶17} Applicant stated she made one visit to Holistic Wellness Solutions which lasted approximately fifteen minutes. At that time, the therapist told her she was not the right kind of counselor that the applicant needed a trauma specialist. She was told that Holistic Wellness Solutions had a trauma specialist who would contact her. After a week with no call, she called back, but no one returned her call. This was approximately three weeks prior to her seeing Ms. Stevenson.
{¶18} Applicant acknowledged when she started seeing Stevenson, her new insurance plan had been in effect for approximately forty-five days. Whereupon, the applicant's testimony concluded.
{¶19} In closing, applicant stated that the focus should be on reasonableness. Reasonableness is defined as: a person who exercises qualities of attention, knowledge, intelligence, judgment that society requires for their own interests and the interests of others.
{¶20} In this case, applicant decided to do what was best for her, even though at the time she was incurred an out-of-pocket expense. Applicant made very attempt to find a counselor in her network. She called all providers given to her by United HealthCare, either they did not return her call or stated they were taking no new patients. Ms. Cates tried to find a counselor in network, but was unsuccessful. The bottom line was that Ms. Cates needed help and, in the end, she was able to find a counselor who helped her. Applicant asserted the fund should be responsible for her out-of-pocket expenses.
{¶21} The Attorney General in closing cited R.C. 2743.60(D) which in pertinent part states: "The attorney general . . . 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.
{¶22} The Attorney General argued that applicant was under an obligation to find a provider in her network. In fact, she started counseling with Davia Stevenson, who at the time of her initial contact she knew was not in her insurance network.
{¶23} The Attorney General argued that counselors on the list provided by United HealthCare, possibly had the expertise which the applicant required. It is unknown if the counselor who did not call applicant back possessed the expertise necessary to help Ms. Cates.
{¶24} The Attorney General cites the case of In re Wilke, 2019-00503VI, (7-11-19) aff'd jud (10-16-19), wherein the court found that applicant's use of an out-of-network dentist would not result in applicant receiving an award of reparations.
{¶25} Applicant had one visit with Holistic Wellness Solutions, and then discontinued all contact with them. So it is unclear if someone in this practice possess the expertise necessary to treat the applicant.
{¶26} Finally, the Attorney General argued applicant has not met her burden of proof under R.C. 2743.52, and accordingly, the Attorney General's decision should be affirmed.
{¶27} Applicant stated that Melanie Cates called everyone which her insurance carrier provided. It should be noted approximately one hundred days past since her mother's death when she received mental health counseling. Ms. Cates did all she could to find a counselor in network, but she also needed counseling and when her needs were not met by United HealthCare, she sought the help she needed. Whereupon, the hearing concluded.
{¶28} R.C. 2743.52(A) states that the "attorney general shall make awards of reparations for economic loss arising out of criminally injurious conduct, if satisfied by a preponderance of the evidence that the requirements for an award of reparations have been met." The burden of proof is 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).
{¶29} R.C. 2743.60(D) states in pertinent part:
"(D) 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. If an award is reduced or a claim is denied because of the expected recoupment of all or part of the economic loss of the claimant from a collateral source, the amount of the award or the denial of the claim shall be conditioned upon the claimant's economic loss being recouped by the collateral source. If the award or denial is conditioned upon the recoupment of the claimant's economic loss from a collateral source and it is determined that the claimant did not unreasonably fail to present a timely claim to the collateral source and will not receive all or part of the expected recoupment, the claim may be reopened and an award may be made in an amount equal to the
amount of expected recoupment that it is determined the claimant will not receive from the collateral source."
{¶30} The Attorney General bears the burden of proof by a preponderance of the evidence with respect to the exclusionary criteria of R.C. 2743.60(D) and (H). In re Williams, V77-0739jud (March 26, 1979); and In re Brown, V78-3638jud (December 13, 1979).
{¶31} 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."
{¶32} 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."
{¶33} Black's Law Dictionary Sixth Edition (1990) defines reasonable as follows: "Fair, proper, just moderate, suitable under the circumstances. Thinking, speaking, or acting according to the dictates of reason."
{¶34} Black's Law Dictionary Sixth Edition (1990) defines unreasonable as the following: irrational, foolish, unwise, absurd, silly, preposterous, senseless, and stupid.
{¶35} Pursuant to In re Cardinal, V94-45526tc (9-29-95, a claimant who is eligible for health care benefits may seek treatment from non-network providers where necessary services are not available within the network and the claimant has made reasonable efforts to avail herself of readily available medical benefits. See also, In re Griffith, V90-47761 tc (1-28-94).
{¶36} It should be noted the Wilke case can be distinguished from the case at bar, since in Wilke the dentist involved did not possess distinguishable skills from other dentists in applicant's health insurance network. In this case, applicant was specifically told her therapist had to possess specific skills to deal with trauma.
{¶37} From review of the claim file and careful consideration of the testimony of applicant and the arguments made by the respective counsels, I find applicant was not unreasonable in seeking treatment with Davia Stevenon. The undisputed testimony of the applicant revealed she was aware of the fact that her employer switched health care coverage to United HealthCare. Applicant testified she initially went on United HealthCare's website to search for a counselor. When she was unsuccessful, she contacted a representative and was given a list of eight names. Again she attempted to contact all providers. The results were either no answer, call went to voicemail, or the counselors were not taking new patients. Applicant waited, made additional calls but still her calls were not returned. Due to the psychological nature of her problem, she sought treatment from Holistic Wellness Solutions. In her one visit to this facility the therapist informed her she was not qualified to treat her, but she needed a trauma specialist.
{¶38} At that time a friend told her about Davia Stevenson, and applicant had expressed satisfaction with this choice. Applicant stated her mental condition has improved.
{¶39} Accordingly, I find applicant did not act unreasonable given the circumstances. Therefore, I recommend this claim be reversed and remanded to the Attorney General for calculation of economic loss.
{¶40} 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).