[Cite as In re Dandy, 2011-Ohio-4158.]


                                               Court of Claims of Ohio
                                                   Victims of Crime Division
                                                                          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



IN RE: SHAKEISHA R. DANDY


SHAKEISHA R. DANDY

            Applicant


 Case No. V2010-50426

Commissioners:
Susan G. Sheridan, Presiding
William L. Byers IV
E. Joel Wesp

ORDER OF A THREE-
COMMISSIONER PANEL

          {¶1}On September 21, 2009, the applicant, Shakeisha Dandy, filed a
compensation application as the result of a shooting incident which occurred on August
24, 2009. On January 19, 2010, the Attorney General issued a finding of fact and
decision finding the applicant satisfied the eligibility requirements to receive an award of
reparations.     The applicant was granted an award of reparations in the amount of
$195.68, paid directly to Family Service Association, for services rendered. However,
applicant’s claims for work loss and counseling expenses were denied because the
applicant failed to submit supporting documentation.         On February 16, 2010, the
applicant submitted a request for reconsideration.      On April 14, 2010, the Attorney
General rendered a Final Decision determining that there was no reason to modify its
initial decision. On April 29, 2010, the applicant filed a notice of appeal from the April
14, 2010 Final Decision of the Attorney General.
          {¶2}On June 7, 2010, the applicant filed a motion to withdraw her appeal. On
June 25, 2010, a panel of commissioners approved the applicant’s notice for withdrawal
of the appeal.
Case No. V2010-50426   - 2 -   ORDER
Case No. V2010-50426                     - 3 -                                 ORDER


        {¶3}On October 21, 2010, the applicant filed a supplemental compensation
application. On November 23, 2010, the Attorney General issued a finding of fact and
decision for the supplemental compensation application.        The applicant incurred
mileage expenses in the amount of $18.57. However, an award could not be granted
since R.C. 2743.191(B) requires that an award can only be granted if the award equals
or exceeds $50.00. Furthermore, the applicant’s claim for work loss was denied since
the applicant was not employed at the time of the criminally injurious conduct. On
January 13, 2011, the Attorney General rendered a Final Decision finding no reason to
modify its initial decision. On January 27, 2011, the applicant filed a notice of appeal
from the January 13, 2011 Final Decision of the Attorney General. Hence, a hearing
was held before this panel of commissioners on April 21, 2011 at 11:20 A.M.
        {¶4}The applicant and her attorney, Michael Falleur, appeared at the hearing,
while Principal Assistant Attorney General Matt Hellman represented the state of Ohio.
        {¶5}The applicant is seeking an award of reparations for work loss.         The
applicant contends she was a member of the "ready workforce." She was employed
through a Temporary work agency and due to her injuries she was unable to work
during her disability period.   The applicant asserts work loss should be calculated
based on her yearly earnings average, reduced to net wages, and then calculated for
the period she was unable to work.
        {¶6}The Attorney General pointed out that the applicant has the burden of proof
to establish work loss. The panel should focus on the statutory definition of work loss.
The statute requires that an award for work loss can only be granted if the applicant
loses income "from work that the injured party would have performed." The Attorney
General asserted that case precedent does not allow speculation in calculating the
amount of work loss. If the applicant is not working at the time of her injury applicant
must present credible
Case No. V2010-50426                      - 4 -                                 ORDER


evidence showing the loss of a job opportunity. The applicant has failed to do so in this
case.
          {¶7}Shakeisha Dandy took the witness stand. The applicant testified she was
injured on August 24, 2009.       She received her last paycheck from Sugar Creek
Packaging on August 16, 2009.           After she learned the week before that her
employment with Sugar Creek was ending she scheduled an interview with the AT&T
call center for August 24, 2009.      However, she was shot prior to the scheduled
interview. After the shooting she was taken to Miami Valley Hospital and released
approximately six hours later, after sustaining a gunshot wound to her left leg. She
related that she called a couple of temporary services in the subsequent days informing
them she would be unable to work due to the injury she sustained.
          {¶8}Upon cross-examination, the applicant admitted her current job with
Norwood Medical was not secured through a temporary agency. Also, her full-time job
with Sugar Creek Packaging was not secured through a temporary agency. At the time
of the shooting she was registered with five temporary agencies, but none of the
agencies had available work for her. The job interview which Ms. Dandy planned to
attend on the day of the shooting was obtained through her own volition. She also
related that she worked for Payless Distribution, a job which she received through a
temporary service.      It was a full-time permanent position which she performed
subsequent to her injuries.     She stated she personally notified Kelly Services and
Noble Staffing - Temporary Agencies - of her inability to work during her disability
period.
          {¶9}In closing, the applicant contends she was part of the work force since she
was either working or pursuing a job.      She had a working lifestyle.    The applicant
asserts this panel should follow the holding in In re Zenni, V89-78900tc (11-24-92)
taking into
Case No. V2010-50426                       - 5 -                                ORDER


consideration the applicant’s work history and work ethic. Accordingly, the applicant
urges this panel to adopt an interpretation of the law that would compensate individuals
who are members of the ready work force but do not happen to be employed at the time
they are injured. The applicant asserts work loss could be calculated by averaging her
gross income for the years 2008 and 2009, reducing that income to a net figure,
determining a weekly average, which would be multiplied by three to demonstrate the
loss she suffered for the three-week period in which she was disabled.
         {¶10}In closing, the Attorney General believes that the panel should rely on the
particular facts of this case to render its decision. The facts clearly show that the
applicant was not working when she was injured and the applicant presented no
evidence of a lost job opportunity. The Attorney General also noted that the applicant
testified she had a pre-existing shoulder injury prior to being shot. Ms. Dandy has
failed to present any evidence which would indicate whether the shoulder injury, in and
of itself, would have hindered her from seeking employment. The pre-existing injury
was not related to the criminally injurious conduct.
         {¶11}The Attorney General believes the cases presented by the applicant in her
brief and at the hearing can be distinguished from the case at bar. In In re Dotson
(1995), 91 Ohio Misc. 2d 100, the applicant was employed at the time of his injury. The
problem with that case concerned the fact that his new business venture was not
profitable. Therefore, a panel of commissioners took into consideration his earning
before and after his injury to get an accurate and reasonable calculation of his work
loss. In the case at bar, the applicant, unlike Dotson, was not employed at the time of
the injury.
         {¶12}In In re Caminiti (1984), 17 Ohio Misc. 2d 9, work loss calculation had to
be determined for a young victim who was permanently disabled from returning to the
work
Case No. V2010-50426                        - 6 -                                 ORDER


force, a situation not analogous to the case at bar. And, finally In re Zenni involved a
deceased victim and the method to be used to calculate dependent’s economic loss
again a situation totally unlike the case at bar.
          {¶13}In contrast, the cases cited by the Attorney General, In re Russell,
V80-47882jud (4-19-84); In re Clark, V82-32238jud (5-8-84); and In re Wilson (1989),
61 Ohio Misc. 2d 369, all require that the applicant provide proof that the applicant
would have been gainfully employed but for the injury resulting from the criminally
injurious conduct.
          {¶14}Finally, the Attorney General directs that this panel follow the language of
the statute and not speculate with respect to the applicant’s ability to be gainfully
employed. Whereupon, the hearing was concluded.
          {¶15}R.C. 2743.51(G) in pertinent part states:
          "‘Work loss’ means loss of income from work that the injured person would
          have performed if the person had not been injured. . ."
          {¶16}There are two elements necessary to prove work loss.              First, the
applicant must prove work loss was sustained by showing an inability to work. Second,
the applicant must prove the monetary amount of the work loss. Both elements must
be proven by corroborating evidence. In re Berger (1994), 91 Ohio Misc. 2d 85.
          {¶17}Applicant has the burden to prove that the applicant secured a specific job
commencing at a known date after the criminally injurious conduct or was in the process
of negotiating a job the applicant was likely to get. In re Wilson (1989), 61 Ohio Misc.
2d 369.
          {¶18}The applicant has the burden to establish that there was work the
applicant would have performed had the applicant not been injured. In re Russell,
V80-47882jud (4-19-84).
Case No. V2010-50426                       - 7 -                                  ORDER


         {¶19}A "high degree of probability" is insufficient to establish that an applicant
would have obtained employment during the applicant’s disability period. In re Clark,
V82-32238jud (5-8-84).
         {¶20}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.”
         {¶21}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.”
         {¶22}From review of the case file and upon full and careful review of the
testimony presented and the arguments at the hearing, we find the applicant has not
proven, by a preponderance of the evidence, that she incurred work loss as defined by
R.C. 2743.51(G) for her three-week period of disability. The plain and unambiguous
language of the statute requires work loss only be granted for work that "the injured
person would have performed if the person had not been injured." In the case at bar,
the applicant has been unable to meet this requirement.
         {¶23}We believe the applicant’s argument that this panel should rely on the
holding in Zenni is misplaced. Zenni involved the calculation of dependent’s economic
loss not work loss. This court, as well as, the Attorney General recognizes in death
claims work history plays a predominate role, since it is important to fairly and
responsibly compensate the dependents of deceased individuals, who while they have
changed jobs prior to their death, exhibited a consistent history of financially supporting
their family. In the case at
Case No. V2010-50426                        - 8 -                                ORDER


bar, it is necessary for the applicant to prove that she lost a specific employment
opportunity due to her injuries.
        {¶24}This decision does not foreclose an applicant who earns her living from
temporary employment to be consistently denied work loss. What this decision does
require is that the applicant must present specific evidence that a particular job
opportunity was unavailable solely due to the injuries she sustained as a result of the
criminally injurious conduct.      This panel rejects the applicant’s argument that she
should be compensated because she was a member of the "ready to work force."
Such an assertion is too speculative and contrary to the holdings in Russell, Clark, and
Wilson. Therefore, the January 13, 2011 decision of the Attorney General is affirmed.
        IT IS THEREFORE ORDERED THAT
        {¶25}1) The January 13, 2011 decision of the Attorney General is AFFIRMED;
        {¶26}2) This claim is DENIED and judgment is rendered for the state of Ohio;
        {¶27}3) This order is entered without prejudice to the applicant’s right to file a
supplemental compensation application, within five years of this order, pursuant to R.C.
2743.68;
Case No. V2010-50426                                           - 9 -                            ORDER


             {¶28}4) Costs are assumed by the court of claims victims of crime fund.




                                                                 _______________________________________
                                                                 SUSAN G. SHERIDAN
                                                                 Presiding Commissioner



                                                                 _______________________________________
                                                                 WILLIAM L. BYERS IV
                                                                 Commissioner



                                                                 _______________________________________
                                                                 E. JOEL WESP
                                                                 Commissioner

ID #I:\VICTIMS\2010\50426\7-13-11 panel decision.wpd\DRB-tad
        A copy of the foregoing was personally served upon the Attorney General and
sent by regular mail to Montgomery County Prosecuting Attorney and to:
Filed 7-22-11
Jr. Vol. 2279, Pgs. 118-125
Sent to S.C. Reporter 8-19-11
