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In re Rankin

Court of Claims of Ohio

March 24, 2016

IN RE: DUSTIN RANKIN DUSTIN RANKIN Applicant

          Sent to S.C. Reporter 5/23/17

          DECISION

          PATRICK M. McGRATH, Judge

         {¶1} On September 8, 2015, a hearing was held in this matter before a magistrate of this court. On November 13, 2015, the magistrate issued a decision wherein he recommended that the Attorney General's denial of $19, 637.67 for economic loss because applicant did not apply for a readily available collateral source, specifically Social Security Disability (SSD) benefits, be reversed and applicant be granted the balance of his economic loss.

         {¶2} Civ.R. 53 states that: "[a] party may, within fourteen days of the filing of the decision, serve and file written objections to the magistrate's decision." The Attorney General received an extension of time to file objections until December 23, 2015, and its objections were timely filed on that date.[1] Applicant did not file a response.

         {¶3} On November 3, 2014, applicant, Dustin Rankin, filed a crime victim compensation application as the result of an aggravated vehicular assault that occurred on August 2, 2013. On May 2, 2015, the Attorney General issued a finding of fact and decision determining that applicant met the necessary jurisdictional requirements to qualify as a victim of criminally injurious conduct, but denied applicant's application because the amount of unreimbursed economic loss could have been recouped by excess collateral source payments from the Bureau of Workers' Compensation and through the Social Security Administration if applicant applied for SSD benefits. Applicant filed a request for reconsideration on March 19, 2015, and, on May 12, 2015, the Attorney General issued a final decision without any modification.

         {¶4} The Attorney General raises the following objections to the magistrate's recommendation.

         {¶5} The Magistrate Erred in Finding that SSD Benefits are not a Readily Available Source because the Victims of Crime Act Specifically Lists Social Security as a Readily Available Collateral Source and the Court has Ruled the Same.

         {¶6} The Magistrate Erred in Finding that the Court of Claims has not Required Applicants to Apply for Benefits from the Social Security Administration.

         {¶7} These two objections are related and shall be considered jointly. The Attorney General argues that SSD benefits are a readily available collateral source, and that the magistrate erred in determining that SSD benefits were not a readily available collateral source in this case because applicant "has never been told he was eligible for Social Security Disability" and he would "have to wait months or years" for the benefits. (Mag. Dec. Pgs. 3, 9). Further, the Attorney General argues that applicant is required to apply for SSD benefits that might be available because SSD benefits are a readily available collateral source.

         {¶8} First, the court disagrees with the Attorney General that applicant knew he was eligible for SSD benefits on March 2, 2015, and that he was required to apply for them. The Attorney General did include information about SSD benefits in its finding of fact and decision, final decision, and its brief, however applicant testified credibly that he does not remember reading those specific portions of the Attorney General's communications.

         {¶9} Second, the court finds that SSD benefits are not a readily available collateral source in this case, and agrees with the magistrate's recommendation that "applicant should not have to wait for months or years for the Social Security Administration to render a decision in a case, should he choose to file one." (Mag. Dec. Pg. 9).

         {¶10} R.C. 2743.60(D) states, in pertinent part, that "the attorney general or the court of claims shall reduce * * * 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." Further, "'[collateral source' means a source of benefits or advantages for economic loss otherwise reparable that the victims or claimant has received, or that is readily available to the victim or claimant, from any of the following sources * * * [s]ocial security." R.C. 2743.51(B)(3).

         {¶11} In In re Ross, V06-20062tc (Ct. of Cl. 4-2-07), this court noted that "the goal of the [victim's] program is remedial in nature. The Ohio Victims of Crime Program was designed to return victims/applicants to their status prior to the criminally injurious conduct. If we were to mandate that an applicant/victim seek every potential form of recovery and undertake extraordinary means to do so that would run afoul of the program's mission and goal." (Pgs. 6-7). With this background, the court then went on to describe the following four factors to determine whether a victim/applicant should be required to seek recovery from a potential collateral source:

(1) is the source of benefits or advantage for economic loss listed under R.C. 2743.51(B) as a collateral source; (2) is the item in question a source of benefits or an advantage for economic loss; (3) is the source of benefits or advantage for economic loss "readily available" - meaning is it highly plausible that recoupment of such benefits within a reasonable time frame of applying for such benefits will occur; and (4) will the victim/applicant run the risk of incurring a substantial and unreasonable monetary cost to recovery benefits from the source of benefits ...

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