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In Re: Kevin A. Ward

January 15, 2009

IN RE: KEVIN A. WARD KEVIN A. WARD APPLICANT


OPINION OF A THREE- COMMISSIONER PANEL

The Ohio Judicial Center 65 South Front Street, Fourth Floor Columbus, OH 43215 614.387.9860 or 1.800.824.8263 www.cco.state.oh.us

Commissioners: Randi Ostry LeHoty, Presiding Thomas H. Bainbridge Tim McCormack

{1}On April 8, 2005, a panel of commissioners issued a decision finding the applicant was unable to qualify as a victim of criminally injurious conduct since his injuries arose from a hit and skip accident. At the time the decision was rendered, hit and skip accidents did not qualify as exceptions to the motor vehicle exclusion contained in R.C. 2743.51(C)(1). On July 27, 2005, a judge of the Court of Claims affirmed the decision of the three- commissioner panel.

{2}On April 4, 2007, Amended Substitute House Bill 461 became effective. This legislation amended R.C. 2743.51(C)(1) and allowed victims of hit and skip accidents to qualify under the victims of crime compensation program. The legislation was retroactively applied to all hit and skip accidents occurring on or after July 1, 2000. Consequently, the applicant was sent a letter informing him of his right to reopen his claim.

{3}On March 2, 2007, a supplemental compensation application was filed on the applicant's behalf to reconsider any expenses incurred as the result of the hit and skip accident, which occurred on November 27, 2003. On May 10, 2007, the Attorney General issued a finding of fact and decision finding the applicant was a victim of criminally injurious conduct but denying an award since all the medical expenses he had incurred were eligible for reimbursement from Medicaid, a readily available collateral source. On May 23, 2007, the applicant submitted a request for reconsideration. The applicant asserted that Medicaid took $4,166.66 from a settlement he received. The applicant sought reimbursement for that amount. On July 25, 2007, the Attorney General rendered a Final Decision finding no modification of the initial decision was necessary. On August 23, 2007, the applicant filed a notice of appeal from the July 25, 2007 Final Decision of the Attorney General. Hence, a hearing was held before this panel of three commissioners Thomas H. Bainbridge, Lloyd Pierre-Louis and Tim McCormack on November 1, 2007 at 10:40 A.M.

{4}Assistant Attorney General Joseph Mastrangelo appeared on behalf of the Attorney General's office while the applicant's attorney Michael Falleur appeared on behalf of the applicant. Both parties presented oral argument for the panel's consideration. Mr. Falleur stated that as a result of the hit and skip accident the applicant received $12,500.00 for uninsured motorist coverage and $2,000.00 in medical pay from U.S. Auto Services. The issue presented to the panel was what portion of the settlement should be considered payment for economic loss as opposed to non-economic loss i.e., pain and suffering. The settlement was apportioned as follows:

Med. Pay U.S. Auto Services Inc. $2,000.00

Uninsured Motorist Coverage $12,500.00

$14,500.00

Costs: $49.50

Legal expenses $4,166.66

Reimbursement to Medicaid $4,166.66

$8,382.82

{5}Mr. Falleur stated that the applicant has life altering injuries. The applicant concedes that the medical pay money was a collateral source. However, the applicant argues that after the $2,000.00 in medical pay is deducted, the remaining $2,166.66 which was paid to reimburse Medicaid from his settlement should not be considered a collateral source. Mr. Falleur asserted that due to the severity of the applicant's injuries all the money received from the insurance settlement less the legal costs, attorney fees and medical pay should be considered reimbursement for non-economic loss. If the panel would determine the injuries sustained do not justify a 100 percent apportionment of non-economic loss, a lesser percentage would still result in a portion of the $2,166.66 being reimbursed to the applicant.

{6}Assistant Attorney General Joseph Mastrangelo contended that in this case there is no allowable expense. Medicaid paid all the expenses, so the applicant had no out-of-pocket expenses. The crime victims program should not be required to pay for the subrogation claims asserted by Medicaid. Mr. Mastrangelo asserted that the holding in In re Fout-Craig has no applicability in this case. Whereupon the hearing was concluded.

{7}On November 16, 2007, the applicant filed a motion to permit a post hearing memorandum and a request for an additional hearing on this matter. The applicant asserts circumstances have changed since the hearing in that the Social Security Administration has taken $1,128.00 from the applicant's settlement. Also, the case of In re Kennard, V97-63444tc ...


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