[Cite as In re Dunn, 2010-Ohio-6707.]




                                                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: LISA J. DUNN

LISA J. DUNN

            Applicant


Case No. V2008-30961

Judge Clark B. Weaver Sr.

DECISION


        {1}This matter came on to be considered upon the Attorney General’s appeal
from the December 11, 2009 order issued by the panel of commissioners. The panel’s
determination reversed the final decision of the Attorney General, which denied
applicant’s claim for medical expense based upon the finding that applicant
unreasonably failed to avail herself to a readily available collateral source.
        {2}R.C. 2743.52(A) places the burden of proof on an applicant to satisfy the
Court of Claims Commissioners that the requirements for an award have been met by a
preponderance of the evidence. In re Rios (1983), 8 Ohio Misc.2d 4, 8 OBR 63, 455
N.E.2d 1374. 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. In re Williams,
V77-0739jud (3-26-79).          The panel found, upon review of the evidence, that the
Attorney General failed to present sufficient evidence to meet his burden.
        {3}The standard for reviewing claims that are appealed to the court is established
by R.C. 2743.61(C), which provides in pertinent part:              “If upon hearing and
consideration of the record and evidence, the judge decides that the decision of the
panel of commissioners is unreasonable or unlawful, the judge shall reverse and vacate
Case No. V2008-30961                       - 2 -                              DECISION


the decision or modify it and enter judgment on the claim. The decision of the judge of
the court of claims is final.”
       {4}The panel determined that the sole issue presented in this case is whether
applicant unreasonably failed to avail herself to a readily available collateral source
which could have paid her prescription and medical expense. The Attorney General
argues that applicant unreasonably failed to use Medicaid benefits as a collateral
source.
       {5}R.C. 2743.60(D) states, in pertinent part:
       “The attorney general, a panel of commissioners, or a judge of 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.”
       {6}R.C. 2743.60(H) states:
       “If a claimant unreasonably fails to present a claim timely to a source of benefits
or advantages that would have been a collateral source and that would have
reimbursed the claimant for all or a portion of a particular expense, the attorney
general, a panel of commissioners, or a judge of the court of claims may reduce an
award of reparations or deny a claim for an award of reparations to the extent that it is
reasonable to do so.”
       {7}The evidence before the panel established that applicant had applied for
Medicaid coverage and that the Ohio Department of Job and Family Services notified
her that her coverage had been “backdated” to include a period of time during which
she had previously been ineligible for medical assistance.           However, applicant
contends that she did not receive timely notice of her backdated coverage.
       {8}The evidence in the claim file shows that applicant was a victim of a horrific
assault which caused serious physical trauma and that she was subsequently
diagnosed with “Major Depressive Disorder” as a result of the criminally injurious
Case No. V2008-30961                       - 3 -                               DECISION


conduct. The panel found that “applicant’s psychological problems made her a less
than ideal candidate to handle a variety of medical providers and the management of
Medicaid and [the Hospital Care Assurance Program].”           The panel concluded that
based upon applicant’s psychological condition and “the confusing nature of the
evidence” concerning her medical expense, the Attorney General had not satisfied the
burden of proving that applicant unreasonably failed to utilize a collateral source.
       {9}The court notes that the Attorney General has acknowledged that a portion of
applicant’s medical expense was paid by Medicaid. The court finds that the evidence
in the claim file supports applicant’s assertion that she had attempted to inform
providers of her coverage. The court further finds that there is sufficient evidence to
support both the panel’s findings of fact regarding applicant’s psychological condition
and the panel’s conclusion that the Attorney General did not establish by a
preponderance of the evidence that applicant unreasonably failed to avail herself to a
readily available collateral source.
       {10}Upon review of the file in this matter, the court finds that the panel of
commissioners was not arbitrary in finding that applicant had shown by a
preponderance of the evidence that she was entitled to an award of reparations.
       {11}Based on the evidence and R.C. 2743.61, it is the court’s opinion that the
decision of the panel of commissioners was reasonable and lawful.




                                          CLARK B. WEAVER SR.
                                          Judge




                                              Court of Claims of Ohio
Case No. V2008-30961                   - 4 -                                 DECISION



                                               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: LISA J. DUNN

LISA J. DUNN

         Applicant



Case No. V2008-30961

Judge Clark B. Weaver Sr.

ORDER


      Upon review of the evidence, the court finds the order of the panel of
commissioners must be affirmed and the Attorney General’s appeal must be denied.
      IT IS HEREBY ORDERED THAT:
      {12}1)   The order of December 11, 2009, (Jr. Vol. 2274, Pages 66-71) is
approved, affirmed and adopted;
      {13}2)   This claim is REMANDED to the Attorney General for calculation of
economic loss and payment;
      {14}3) Costs assumed by the reparations fund.




                                      CLARK B. WEAVER SR.
                                      Judge
Case No. V2008-30961                    - 5 -                            DECISION


AMR/cmd

       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 4-15-10
Jr. Vol. 2275, Pg. 61
Sent to S.C. Reporter 9-21-11
