[Cite as In re Jastrzebski, 2010-Ohio-2373.]

                                                  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: ELIZABETH L. JASTRZEBSKI


ELIZABETH L. JASTRZEBSKI

            Applicant


 Case No. V2009-40188

Commissioners:
Karl C. Kerschner, Presiding
Randi M. Ostry
Lloyd Pierre-Louis

ORDER OF A THREE-COMMISSIONER PANEL


        {¶ 1} On        May 6,       2008, the applicant, Elizabeth    Jastrzebski, filed a
compensation application as the result of an assault which occurred on April 8, 2007.
On October 29, 2008, the Attorney General issued a finding of fact and decision finding
the applicant met the necessary jurisdictional requirements to receive an award of
reparations. Hence, the applicant was granted an award in the amount of $335.81, of
which $96.00 represents payment to Debra K. Goran, Ph.D., $15.00 represents
reimbursement to the applicant for a payment to the Cleveland Clinic, and $224.81
represents mileage expenses incurred by the applicant. The Attorney General noted
that 80 percent of the counseling expenses incurred with Dr. Goran was related to the
criminally injurious conduct, while the remaining 20 percent was not. The Attorney
General directed the applicant to file a compensation application on behalf of her minor
son A.B. to address his counseling expenses.            The Attorney General determined
expenses incurred at South West General Health Center are subject to the Hospital
Care Assurance Program (HCAP).                  Therefore, HCAP would reimburse these
expenses. The applicant was unable to prove she incurred work loss as a result of the
Case No. V2009-40188                      - 2 -                                 ORDER


criminally injurious conduct and her claim for replacement services loss was denied
since the child care expenses she was seeking do not meet the legal definition of
replacement services loss.
      {¶ 2} On November 24, 2008, the applicant submitted a request for
reconsideration.   The applicant asserted she incurred work loss on September 13,
2007, October 15, 2007, October 16, 2007, November 19, 2007, November 20, 2007,
January 15, 2008, April 1, 2008 and May 2, 2008, and this loss should be reimbursed by
the compensation program. The applicant also requested mileage reimbursement to
attend meetings with relevant parties concerning the domestic violence she suffered.
The applicant also indicated that her husband’s insurance carrier refused to reimburse
the expenses incurred with Dr. Goran because Dr. Goran was not within the insurance
carrier’s network. The applicant requested reimbursement of a $50.00 co-payment she
incurred for treatment at South West.     Finally, the applicant asserted she may not
qualify for HCAP since she and her husband are, or were at the time, still married and
their joint income would be considered.
      {¶ 3} On February 23, 2009, the Attorney General rendered a Final Decision.
The Attorney General granted the applicant an additional award in the amount of
$50.00, which represented reimbursement of the co-payment she incurred at South
West General Health Center.      With respect to the additional issues raised by the
applicant, the Attorney General found no reason to modify its prior decision. On March
2, 2009, the applicant filed a notice of appeal from the February 23, 2009 Final Decision
of the Attorney General.       Hence, a hearing was held before this panel of
commissioners on February 3, 2010 at 10:25 A.M. It should be noted that this hearing
concerned both V2009-40188 and V2009-40781, however, this decision will only
address the issues raised in V2009-40188.
      {¶ 4} The applicant and her attorney, Kimberley Wells, appeared at the hearing
while the state of Ohio was represented by Assistant Attorneys General Lyndsay Nash
and Amy O’Grady.      As a preliminary matter, it was disclosed to the parties that
Case No. V2009-40188                     - 3 -                                 ORDER


Commissioner Ostry was associated with a firm for whom attorney Wells had, in the
past, performed contract work. Neither party expressed any objection to Commissioner
Ostry hearing this matter.
      {¶ 5} Initially, the parties agreed that the applicant should be compensated for
her counseling expenses and the related mileage expenses she incurred to attend
these sessions.     Also, the applicant should be compensated for the work loss she
incurred to meet with law enforcement.      These expenses have been paid by the
Attorney General.
      {¶ 6} With respect to V2009-40188, the case at bar, the issues that were
addressed were work loss incurred on October 7, 2007 to meet with law enforcement,
lost wages to attend the custody hearing, and child care expenses which qualify as
replacement services loss.
      {¶ 7} Elizabeth Jastrzebski was called to testify. She described the history of
domestic violence she experienced with her husband. She revealed that she filed for
divorce on May 16, 2007. Initially her husband was granted supervised visitation with
his children. However, after approximately three months, he was allowed unsupervised
visitation. On October 15, 2007, Darlene Wilcox was appointed guardian ad litem.
      {¶ 8} The applicant testified she began working in August 2007 as a substitute
teacher.     Currently, she works as a substitute teacher during the day, works at a
ski-resort seasonally, and at McDonald’s on the weekends. Prior to this time period,
she took care of her children on a full time basis. She now has to pay for before-school
childcare.
      {¶ 9} The applicant was then shown Exhibit 2, a list of the days of work she
missed. The exhibit was prepared by the applicant. The applicant testified that she
was off work on September 13, 2007 to meet with conciliatory services; that October 15,
2007 was the day after her husband did not return A.B. as scheduled and that she
stayed home from work because she was worried; that on October 16, 2007, she met
with the guardian ad litem, Darlene Wilcox; that November 19 and 20, 2007, were court
Case No. V2009-40188                       - 4 -                                 ORDER


dates for visitation and grandparent visitations; January 15, 2008 was another court
appearance; that on April 1, 2008, a court hearing was postponed due to illness of her
husband but she had already called off work; and that May 2, 2008, was the final court
date where she was awarded custody of A.B. and was named residential parent.
       {¶ 10} The applicant was then shown Exhibit 1, the final divorce decree from the
Cuyahoga County Common Pleas Court, Division of Domestic Relations.                  The
applicant’s attention was directed to page 2 of the document where the court named the
applicant as the residential parent and legal custodian of A.B. The applicant indicated
that she had to attend a mandatory parenting class.
       {¶ 11} The applicant was presented with Exhibit 3, a certificate of attendance
from a Parent Education Seminar dated June 26, 2007. The applicant’s attention was
then directed back to Exhibit 2. The applicant testified that she had to travel to the
October 16, 2007 meeting with the guardian ad litem and the September 13, 2007,
January 15, 2008 and May 2, 2008, court dates required her to incur travel expenses.
She testified she traveled to both the Parma and the North Royalton Police
Departments to file police reports when A.B. was not returned from visitation on October
15, 2008.
       {¶ 12} The applicant reiterated that although she is the residential parent and has
custody of A.B., her former husband has visitation rights.       While she attempted to
terminate visitation rights, she was unsuccessful.
       {¶ 13} Assistant Attorney General Amy O’Grady cross-examined the applicant.
The applicant revealed that initially after the offender was charged with domestic
violence a Temporary Protection Order (TPO) was issued. During the time the TPO
was enforced no visitation was allowed; however, visitation was subsequently granted.
The applicant related that Family Conciliatory Services was associated with the Division
of Domestic Relations of the Court of Common Pleas of Cuyahoga County. During this
time period A.B. did not suffer any verbal or physical abuse by his father.
Case No. V2009-40188                        - 5 -                                ORDER


       {¶ 14} The applicant testified that the dates listed in Exhibit 2 represent all the
times she attended court hearings regarding the custody of A.B.
       {¶ 15} On redirect the applicant testified that she went to court many other times
concerning the divorce matter but is not seeking reimbursement for those expenses.
Whereupon, the testimony of the applicant was concluded and the applicant moved for
admission of Exhibits 1, 2, and 3. The Attorney General moved to admit a letter dated
February 28, 2008 from Darlene Wilcox and a letter dated October 1, 2007 from Freda
Saleem of Family Conciliation Services.
       {¶ 16} The applicant asserts the mileage expense incurred in October 2007, to
file a police report concerning her husband’s interference with custody, should be
compensable     because it was incurred pursuant to her obligation to report criminal
conduct. Furthermore, the applicant contends that expenses she incurred for mileage
and lost wages to attend custody proceedings. However, the applicant does not seek
reimbursement of attorney fees incurred as the result of the custody proceedings should
be compensable.      The applicant argues these expenses were incurred due to her
attempts to protect her child from the offender. The applicant also requests work loss
and mileage expenses incurred when she met with Freda Saleem of Family Conciliation
Services, and Darlene Wilcox, the guardian ad litem, for the same reason, to protect the
interests of her child. The applicant concedes that pursuant to R.C. 2743.51(F)(4),
attorney fees are not compensable for representation in custody proceedings, however,
R.C. 2743.51(F)(4) does not address the issue of lost wages and mileage expenses and
therefore should have no applicability in this situation.
       {¶ 17} Finally, the applicant argues she should be granted an award for
replacement services loss. The applicant contends that due to her divorce from the
offender and the court awarding her custody of her minor child A.B., she had to seek full
time employment. Therefore, any child care costs she incurred should be considered a
replacement services loss.
Case No. V2009-40188                       - 6 -                                  ORDER


       {¶ 18} The Attorney General reasons that any decision rendered by this panel
must take into consideration the change in the statute based upon the enactment of
R.C. 2743.51(F)(4). Prior case law had recognized the compensability of attorney fees
for limitations of visitation, custody proceedings resulting in less than full physical
separation, and guardian ad litem fees.            However, with the addition of R.C.
2743.51(F)(4), it was the General Assembly’s intent to specifically delineate the scope
of the compensability of attorney fees as an allowable expense.          In doing so, the
General Assembly wanted to ensure that funds be expended only when there was a
physical separation of the victim from the offender. The applicant’s argument seeks to
circumvent the intent of the legislature by requesting reimbursement for mileage
expense and work loss, when the underlying proceeding, in this case a custody order
which did not physically separate the victim from the offender, failed to meet the specific
requirements of R.C. 2743.51(F)(4).       The Attorney General also claims that the
applicant’s claims for work loss and mileage as it relates to meeting with Family
Conciliation Services and the guardian ad litem, attending parenting classes and doing
whatever is in the best interest of the child occur in the vast majority of divorces
involving children.   Certainly, the reparations fund should not be burdened with
reimbursing these expenses, since they are not directly related to the criminally injurious
conduct.
       {¶ 19} Finally, the expenses involved in obtaining a police report for an
interference of custody matter should not be compensated since no testimony was
presented that this report was made as a result of A.B. suffering from any criminally
injurious conduct.
       {¶ 20} The Attorney General concluded by stating that the applicant failed to
meet the definition of replacement services loss as contained in the statute. Pursuant
to R.C. 2743.51(H), replacement services loss can be granted only when the injured
person is unable to perform ordinary and necessary services.            In this case, the
applicant offered no testimony supporting the replacement services she seeks were the
Case No. V2009-40188                      - 7 -                                ORDER


result of injuries she sustained from the criminally injurious conduct. Accordingly, the
day care expenses requested by the applicant should be denied.
      {¶ 21} The applicant responded to the Attorney General’s arguments by citing the
case of In re Richardson, V94-31959sc (1-30-95), affirmed tc (7-28-95), affirmed jud
(1-10-96), for the proposition that she incurred replacement services loss.         The
applicant contends this case stands for the proposition that replacement services loss
can be awarded to one who has not been injured, but who incurs a loss to replace the
services of the injured person. Whereupon, the hearing was concluded.
      {¶ 22} R.C. 2743.51(F)(1) in pertinent part states:
      “(F)(1) ‘Allowable expense’ means reasonable charges incurred for reasonably
      needed products, services, and accommodations, including those for medical
      care, rehabilitation, rehabilitative occupational training, and other remedial
      treatment and care and including replacement costs for eyeglasses and other
      corrective lenses.”
      {¶ 23} R.C. 2743.51(F)(4) in pertinent part states:
      “(4) ‘Allowable expense’ includes attorney’s fees not exceeding one thousand
      three hundred twenty dollars, at a rate not exceeding sixty dollars per hour,
      incurred to successfully obtain a restraining order, custody order, or other order
      to physically separate a victim from an offender * * *”
      {¶ 24} R.C. 2743.51(G) states:
      “(G) ‘Work loss’ means loss of income from work that the injured person would
      have performed if the person had not been injured and expenses reasonably
      incurred by the person to obtain services in lieu of those the person would have
      performed for income, reduced by any income from substitute work actually
      performed by the person, or by income the person would have earned in
      available appropriate substitute work that the person was capable of performing
      but unreasonably failed to undertake.”
      {¶ 25} R.C. 2743.51(H) states:
Case No. V2009-40188                      - 8 -                                 ORDER


      “(H) ‘Replacement services loss’ means expenses reasonably incurred in
      obtaining ordinary and necessary services in lieu of those the injured person
      would have performed, not for income, but for the benefit of the person’s self or
      family, if the person had not been injured.”
      {¶ 26} From review of the case file and upon full and careful consideration of the
testimony and arguments presented by the parties, we find that applicant should be
granted counseling and mileage expenses related to the counseling sessions in
accordance with the agreement of the parties.
      {¶ 27} This panel believes that all statutory sections relating to the same general
subject matter must be read in pari materia. When reading statutes in pari materia, this
panel must give reasonable construction as to the proper force and effect each statutory
provision has on the other and the interpretation and application of statutes must be
viewed in a manner to carry out the legislative intent of the sections. Johnson’s Market
Inc. v. New Carlisle Dept. Of Health (1991), 58 Ohio St. 3d 28; see also In re Fletcher,
V2006-20836jud (7-2-09).     Accordingly, when we read R.C. 2743.51(F), we must
harmonize the particular section of the statute to give proper force and effect to the
intent of the General Assembly.     Accordingly, we find when the General Assembly
amended R.C. 2743.51 on June 26, 2004 by including R.C. 2743.51(F)(4), it intended to
limit the compensability of attorney fees, as an allowable expense, only to those
situations where a successful restraining order, custody order, or other order physically
separated a victim from an offender. Accordingly, we find applicant’s argument that
mileage and work loss expenses in conjunction with trips to custody hearings, Family
Conciliation Services, parenting classes, and guardian ad litem meetings (where no
physical separation was ordered), should be compensable, but attorney fees incurred
for the same custody proceedings are not compensable is an incongruous interpretation
of the statute. If the General Assembly chose to limit the reimbursement of attorney
fees to those situations only    where the victim and the offender were physically
separated, we would be remiss in granting R.C. 2743.51(F)(1) expenses e.g. mileage
Case No. V2009-40188                        - 9 -                                 ORDER


and work loss, when that requirement is not met. Therefore, we find the applicant’s
claims for mileage and work loss relating to visits to Family Conciliation Services, the
guardian ad litem, and attendance at custody proceedings and parenting classes are
denied.
       {¶ 28} The applicant asserts a claim for work loss and mileage expense
reimbursement for reporting a custody interference charge to law enforcement. While
the applicant correctly cites the claim of In re T.R.G., for the proposition that work loss
incurred to take a minor victim to meet with law enforcement is compensable, this is not
the situation in this case. In the case at bar, the applicant asserts she incurred work
loss and mileage expenses to meet with law enforcement to pursue an interference with
custody matter. However, this situation is distinguishable from the holding in In re
T.R.G. In In re T.R.G., the work loss was compensable since the applicant took time
off of work to report the criminally injurious conduct that was the basis for filing the
compensation application.        In the case at bar, the underlying criminally injurious
conduct toward A.B. was domestic violence, not any events that transpired in October
2007. No documentary or testimonial evidence has been presented that A.B. was a
victim of criminally injurious conduct in October 2007. Therefore, the applicant’s claim
for mileage and work loss to meet with law enforcement concerning the interference
with custody matter is denied.
       {¶ 29} Finally, the applicant maintains the holding in In re Richardson,
V94-31959sc (1-30-95), affirmed tc (7-28-95), affirmed jud (1-10-96), stands for the
proposition that the applicant can receive an award for replacement services loss due to
the fact she incurred daycare expenses while she was working.               The applicant
reasoned that but for the domestic violence which resulted in her divorce, she would
have remained a stay-at-home parent and would not have sought full-time employment.
However, due to the divorce and the divorce decree granting her request to be the
custodial parent of A.B., she was required to seek full-time employment and thus incur
daycare expenses when she was not able to care for A.B. While the Attorney General
Case No. V2009-40188                     - 10 -                                    ORDER


correctly notes that R.C. 2743.51(H) requires replacement services loss to be limited to
the injured party’s loss, the applicant contends Richardson provides an exception.
      {¶ 30} Richardson presents a unique situation where the applicant’s husband
acted as a caregiver for their child, while the applicant was working. The applicant was
assaulted.   As a result of the assault, the applicant’s husband accompanied the
applicant to work to assist the applicant with fears she was experiencing and to protect
her from another assault. In other words, the applicant would not have been able to
return to work on her own unless she was accompanied by her husband. Therefore,
the loss experienced by the husband altering his work schedule was less than if the
applicant had quit her job due to her fears. Therefore, this court determined it was
reasonable under those circumstances to pay for replacement services loss.
Furthermore, the award was granted to the applicant, not to the applicant’s husband.
      {¶ 31} In the case at bar, the applicant is not asserting that the daycare expenses
are incurred for A.B.’s protection from or fear of the offender. The divorce decree
mandates that the offender have unsupervised visitations with A.B. The applicant has
presented no information to this panel that A.B. is afraid of his father or that the sole
purpose of daycare is to protect A.B. from his father.           The applicant sought
employment to show the domestic relations court that she had the ability to financially
support her child and was qualified as the custodial parent.        We find the causal
connection between the criminally injurious conduct suffered by A.B., and the daycare
expenses is too remote and tenuous, and accordingly, the applicant’s claim for
replacement services loss is denied.
      {¶ 32} Therefore, the February 23, 2009 decision of the Attorney General is
modified.
        IT IS THEREFORE ORDERED THAT
      {¶ 33} 1)     Applicant’s Exhibits 1, 2, and 3 are admitted into evidence;
Case No. V2009-40188                     - 11 -                                   ORDER


      {¶ 34} 2)     The letters submitted by the Attorney General, dated February 28,
2008, from Darlene Wilcox, guardian ad litem and dated October 1, 2007, from Freda
Saleem of Family Conciliation Services are admitted into evidence;
      {¶ 35} 3)     The February 23, 2009 decision of the Attorney General is
MODIFIED to render judgment in favor of the applicant for counseling expenses and
associated mileage expenses agreed to at the hearing;
      {¶ 36} 4)     This claim is remanded to the Attorney General for payment of
these expenses;
      {¶ 37} 5)     Applicant’s claims for mileage and work loss expenses associated
with trips to Family Conciliation Services, the guardian ad litem, and law enforcement in
October 2007 are DENIED;
      {¶ 38} 6)     Applicant’s claim for replacement services loss is DENIED;
      {¶ 39} 7)     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;
      {¶ 40} 8)     Costs are assumed by the court of claims victims of crime fund.




                                             _______________________________________
                                             KARL C. KERSCHNER
                                             Presiding Commissioner



                                             _______________________________________
                                             RANDI M. OSTRY
                                             Commissioner
Case No. V2009-40188                  - 12 -                              ORDER




                                         _______________________________________
                                         LLOYD PIERRE-LOUIS
                                         Commissioner

        A copy of the foregoing was personally served upon the Attorney General and
sent by regular mail to Cuyahoga County Prosecuting Attorney and to:
Filed 5-14-2010
Jr. Vol. 2275, Pgs. 97-109
To S.C. Reporter 5-27-2010
