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In re McLean

Court of Claims of Ohio

November 1, 2016

IN RE: MELISSA MCLEAN BRIAN MCLEAN MELISSA MCLEAN Applicants

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

          DECISION OF THE MAGISTRATE

          Daniel R. Borchert Magistrate

          {¶1} On May 21, 2015, applicant, Brian McLean, filed a compensation application on behalf of his wife, Melissa McLean, who was seriously injured by an offender who was convicted of Vehicular Assault, and Failure to Stop After an Accident on a Public Highway, felonies.

         {¶2} On December 17, 2015, the Attorney General issued a finding of fact and decision denying applicants' claim for an award of reparations based on applicants' failure to properly sign and submit a proper release of information form. On December 28, 2015, applicants submitted a correctly prepared and signed release form with the request for reconsideration.

         {¶3} On April 27, 2016, the Attorney General rendered a Final Decision which determined Melissa McLean was a victim of Aggravated Vehicular Assault which qualified her as a victim of criminally injurious conduct. The Attorney General also determined based on the seriousness of her injuries, and pursuant to the holding in In re Fout-Craig, V93-27851tc (2-5-99), the settlement Melissa received should be divided 15/85, with 15 percent of the settlement representing reimbursement of economic loss sustained while 85 percent represented non-economic loss. After reduction of attorney fees and costs, Melissa received a net settlement of $12, 500.00. Based on the Attorney General's Fout-Craig analysis $1, 230.95 of the settlement represented reimbursement for economic loss, while $11, 269.05 constituted non-economic loss. The Attorney General determined applicant incurred unreimbursed economic loss in the amount of $29, 695.60, which when reduced by the $1, 230.95 off-set resulted in an award being granted in the amount of $28, 464.65.

          {¶4} The award represented $27, 179.00 based on a valid Remedial Treatment and Care Agreement for a standing wheelchair. The remainder of the award, $1, 285.65, payable to applicant, Brian McLean was considered work loss and the Attorney General informed applicant this amount would be paid directly to Ohio Child Support Payment Central due to Mr. McLean being in arrears in his child support. Mr. McLean had to take time off from his employment to care for his wife.

         {¶5} On May 4, 2016, applicant filed a notice of appeal from the Attorney General's Final Decision. Initially, applicant disputed the net distribution from the settlement arguing after the Fout-Craig adjustment applicant's net was $8, 686.50 not $12, 500.00 as contended by the Attorney General. Applicant submitted a Disbursement Sheet from Melissa's civil attorneys which revealed a gross proceed from the settlement of $8, 500.00, however, the form also notes that previously a $4, 000.00 payment was made to the client (Melissa). Secondly, applicant contends the award he received was not for work loss, but rather an allowable expense which should not be sent to Ohio Child Support Payment Center. Hence, a hearing was held before this magistrate on August 17, 2016 at 1:30 p.m.

         {¶6} Attorney Michael Falleur appeared on behalf of the applicant, while the state of Ohio was represented by Assistant Attorney General Robin Mathews.

         {¶7} Applicant stated this case concerns the interpretation of Ohio Revised Code 2743.66(D)(2) which states:

"(D) An award is not subject to execution, attachment, garnishment, or other process, except that, upon receipt of an award by a claimant:
"(2) The part of the award that is for work loss shall not be exempt from such action to secure payment of spousal support, other maintenance, or child support."

         {¶8} Applicant acknowledged that due to his wife's paraplegic condition as a result of the accident, he was required to take time off from his job to care for her. However, applicant argued the award granted to Melissa McLean was for allowable expense not work loss. Accordingly, R.C. 2743.66(D)(2) should have no applicability to his case. Applicant stated the Attorney General determined the value of applicant's services were based on the lost wages he sustained providing the remedial services to his wife.

         {¶9} Applicant acknowledged that R.C. 2743.66(D)(2) is applicable to situations where an award is granted for work loss pursuant to R.C. 2743.51(G). However, this is not the case in this situation. The award granted to applicant was for allowable expenses incurred by Melissa and accordingly, that award was exempt from the provision contained in R.C. 2743.66(D)(2). Brian McLean's wage loss was used to calculate the amount of allowable expense incurred, rather than determining what those services would be worth if a private care provider had been hired.

         {¶10} Next, applicant addressed the language contained in R.C. ...


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