In re Langwasser , 2011 Ohio 5297 ( 2011 )

[Cite as In re Langwasser, 2011-Ohio-5297.]
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: CHRISTIAN M. LANGWASSER
CHRISTIAN M. LANGWASSER
Applicant
Case No. V2009-40790
Commissioners:
Karl C. Kerschner
Susan G. Sheridan
OPINION OF A TWO-COMMISSIONER PANEL
{¶1}The appeal presently before this panel involves the issue of work loss, and
whether the loss of an ROTC scholarship which included a stipend should be
reimbursed. After thoughtful consideration, this panel has determined the applicant
has presented insufficient evidence to equate the loss of the stipend with work loss.
The stipend was a part of the scholarship, and a scholarship does not constitute work
loss within the meaning of R.C. 2743.51(G). Accordingly, this panel affirms the
Attorney General’s denial of the applicant’s claim for work loss.
I. Procedural History
{¶2}On September 24, 2008, the applicant, Christian Langwasser, filed a
compensation application as the result of an assault which occurred on August 15,
2008. On April 7, 2009, the Attorney General issued a finding of fact and decision
determining the applicant met the necessary jurisdictional requirements to receive an
award of reparations and granting an award in the amount of $2,428.89. The award
Case No. V2009-40790 Page 2
reimbursed medical providers and compensated the applicant for mileage expenses.
However, expenses incurred for services rendered at Grady Memorial Hospital were not
reimbursed since they are subject to the Hospital Care Assurance Program. The
applicant’s claim for crime scene clean-up was denied due to his failure to submit
documentation of expenses incurred. Finally, the applicant’s request for tuition and
scholarship expenses was denied since such items did not qualify as allowable
expenses pursuant to R.C. 2743.51(F)(1).
{¶3}On May 5, 2009, the applicant submitted a request for reconsideration.
The applicant sought reimbursement of clothing taken by the police at the hospital and
additional medical expenses incurred as the result of the assault. The applicant also
requested that the loss of his scholarship be considered as a reimbursable work loss.
{¶4}On October 23, 2009, the Attorney General rendered a Final Decision
granting the applicant an additional award in the amount of $711.00, of which $605.00
was paid directly to Oral and Facial Surgeons of Ohio and $106.00 was paid to the
applicant for an evidence replacement expense. However, the Attorney General found
no reason to modify its decision concerning work loss and crime scene clean-up.
{¶5}On November 12, 2009, the applicant filed a notice of appeal from the
October 23, 2009 Final Decision of the Attorney General. The appeal hearing was held
before this panel of commissioners on September 1, 2010 at 10:55 A.M.
II. Applicant’s Position
{¶6}The applicant, Christian Langwasser, his attorney Michael Falleur, and
Assistant Attorney General David Lockshaw attended the hearing and presented
testimony and oral arguments for the panel’s consideration.
{¶7}The applicant asserted that the only issue before this panel is the annual
stipend Christian Langwasser lost due to the injuries he sustained from the criminally
injurious conduct. The stipend amounted to $3,000.00 per year and was part of an
Case No. V2009-40790 Page 3
ROTC scholarship he was awarded in conjunction with his admission to the University
of Kentucky. The applicant asserts the stipend was for work Christian would have
done in the classroom and in the field for the United States Army. However, due to the
injuries sustained from the criminally injurious conduct, he was unable to enroll at the
University of Kentucky and he lost this stipend. The applicant contends the stipend
constitutes a work loss pursuant to R.C. 2743.51(G).
III. Attorney General’s Position
{¶8}Conversely, the Attorney General contended that the stipend is not work
loss as defined in R.C. 2743.51(G). Furthermore, the receipt of the stipend was
speculative since additional testing was required before the applicant became eligible to
received the ROTC scholarship.
IV. Witness Testimony and Argument
{¶9}The applicant, Christian Langwasser was called as a witness. Mr.
Langwasser related how he became aware of the ROTC program and why the
University of Kentucky (UK) met his academic needs. The applicant stated if he
participated in the ROTC program at UK he would receive a waiver of out-of-state
tuition, room and board, a book allowance, and an annual stipend of $3,000.00. The
total benefits of the ROTC program at UK amounted to $25,971.00 per year. To
receive the room and board allowance he was required to write an essay and the
annual stipend would be based on satisfying certain criteria related to academic and
physical achievements. The applicant stated he believed he could have passed the
Army Physical Fitness Test (APFT), since he played both football and baseball at
Olentangy High School and travel baseball prior to his prospective freshman year in
college. Mr. Langwasser also stated it was his understanding that even if an individual
initially failed the APFT, ROTC would work with the person to insure the APFT was
passed.
Case No. V2009-40790 Page 4
{¶10}Mr. Langwasser then described the injuries he sustained as a result of the
assault: a broken jaw, broken wrist, broken nose, and two of his bottom teeth were
shattered. Due to the injuries he sustained he could not pass the APFT, nor was he
able to pass the APFT within 60 days as was required by ROTC. Failure to pass the
APFT would have made him ineligible to receive benefits from ROTC including the
stipend. Consequently, Christian chose to enroll in the Orange branch of The Ohio
State University. Approximately eight months after he sustained his injuries he jointed
the Ohio National Guard and was able to pass the physical fitness requirements.
{¶11}Finally, Christian testified that if he were able to attend the ROTC program
at UK he would not have been required to attend boot camp. However, other recruits
who were not enrolled in the ROTC program would be required to go to boot camp, but
they would be paid for their attendance.
{¶12}The Attorney General chose not to cross-examine the witness.
Whereupon, the testimony of Christian Langwasser was concluded.
{¶13}In closing argument, the applicant asserted that the loss sustained is best
characterized as the loss of a job expectation. The elements necessary to prove the
loss of a job expectation are: 1) an agreement between the prospective employer and
the employee for employment; 2) terms of employment, i.e., wages, hours and specific
conditions of employment; and 3) the sole reason the prospective employee is unable to
take the job was due to injuries suffered as the result of criminally injurious conduct.
The applicant contends the first element was satisfied by the letter from Lieutenant
Colonel Bradley D. Harrington dated October 27, 2008. The first sentence of the letter
states: “On May 4, 2008, Christian was elected to receive an Army ROTC 4-year
scholarship to attend the University of Kentucky (UK) starting the fall of school year
2008-2009.” The applicant further asserts that element two is also satisfied by the
letter which states Christian was required to pass a medical physical and the physical
fitness test. Furthermore, Christian testified he needed to maintain satisfactory
performance both in the classroom and on the field. Finally, the sole reason for not
Case No. V2009-40790 Page 5
taking the ROTC scholarship was the injuries he sustained as a result of the criminally
injurious conduct.
{¶14}The applicant contends the obligation of performing in the classroom and
on the field constitutes work loss. Furthermore, the applicant is asking for only one
year of work loss - $3,000.00 stipend. Unlike a scholarship based on past
achievement, the scholarship in question is based on prospective performance.
{¶15}Upon questioning by the panel, the applicant did not know if the stipend
would be characterized as W-2 or 1099 income. The applicant did not present any
evidence on this point and he was unaware of what rate this “income” would be taxed.
The applicant asserts the participation in ROTC equates to completion of boot camp
over a four-year period, and is the indicia of work loss. The military training involved is
compensated by the stipend.
{¶16}In closing, the Attorney General alleged that the stipend did not qualify as
work loss because it was not loss of a job opportunity. Furthermore, there was no
guarantee the applicant would have been eligible for the stipend. The stipend was
contingent on the applicant passing a physical and the fitness exam. It would be
speculative to assume the applicant would have passed these requirements. The
Attorney General believes the applicant has failed to meet his burden of proof with
respect to work loss and accordingly, the Final Decision of the Attorney General should
be affirmed. Whereupon, the hearing was concluded.
V. Controlling Law and Precedent
{¶17}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 . . .”
{¶18}In order to establish the loss of a job expectation the applicant must prove
a prior agreement existed between the applicant and the prospective employer, the
terms of the employment, such as wages, hours, and specific conditions of employment
Case No. V2009-40790 Page 6
must be established and agreed upon by the applicant and the prospective employer,
and the loss of the job must solely relate to being a victim of criminally injurious conduct.
See In re Brown, V93-68964sc (7-24-94) affirmed tc (12-27-94); In re Carreon,
V93-58560sc (7-29-94).
{¶19}Reimbursement of college tuition has been granted if the applicant
received free psychological counseling through the school or where attendance was
deemed medically necessary for the rehabilitation or remedial treatment of the
applicant. In re Webber (1989), 61 Ohio Misc. 2d 351, In re Holbrook (1993), 63 Ohio
Misc. 2d 118.
{¶20}The loss of an athletic scholarship is not considered a compensable loss
pursuant to R.C. 2743.51(F). In re Gilford, V92-85377sc (11-30-93).
{¶21}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.”
{¶22}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.”
VI. Panel’s Determination
{¶23}We do not find the loss of a stipend equates to work loss. The applicant
has the burden to prove that he lost income as a result of not being able to work.
However, the applicant did not establish exactly what “work” he was performing. It
appears that the stipend was a part of a scholarship the applicant was to receive
dependent upon the fulfillment of certain academic and physical requirements. The
Case No. V2009-40790 Page 7
Victims of Crime Compensation Act contains specific requirements which must be met
to be eligible to receive an award of reparations and only specifically delineated
economic losses can be recovered.
{¶24}As a general rule the loss of a scholarship does not meet the statutory
definition of any allowable expense as contained in R.C. 2743.51(F)(1).
{¶25}R.C. 2743.51(F)(1) 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. It does not include that portion of a charge for a room in a
hospital, clinic, convalescent home, nursing home, or any other institution
engaged in providing nursing care and related services in excess of a
reasonable and customary charge for semiprivate accommodations, unless
accommodations other than semiprivate accommodations are medically
required.”
{¶26}Accordingly, this court held in In re Gilford, V92-85377sc (11-30-93), that
the loss of an athletic scholarship was not a compensable expense. A very narrow
exception, not applicable to the case at bar, was carved out where tuition was
reimbursed if it aided the remedial treatment and care of the victim. Therefore, the
applicant attempts to equate the loss of the stipend with work loss, or in the alternative,
the loss of a job opportunity. However, the applicant failed to provide this panel with
any evidence of what specific job duties, hours of employment, or performance
requirements were necessary to receive this stipend. We find the stipend was an
integral part of the scholarship, no different than an athletic scholarship which has
already been found to be a non-compensable expense.
{¶27}The dissent argues that the stipend was payment for an extended boot
camp. The applicant related that if he successfully completed the ROTC program he
Case No. V2009-40790 Page 8
would be exempt from attending boot camp upon graduation. The applicant asserted
other enlistees not completing an ROTC program would be paid for attending boot
camp. However, it is speculative if the applicant would have completed the four-year
program and the applicant provided no testimony from any one involved with the ROTC
program to establish a causal link between the stipend and pay for boot camp.
{¶28}Finally, the dissent relies on the holding in In re Dimon, Jr., V83-61592tc
(11-2-84). In Dimon the applicant asserted a claim for lost wages as a result of his
inability to participate in the United States Marine Corps Platoon Leaders Class. The
applicant in that case was assaulted and unable to participate in the program. The
panel of commissioners in that case relied on the testimony from Captain Neal R. Smith.
Captain Smith testified he was in charge of marine officer recruiting in the multi-state
district for a number of years, and that based on Smith’s expertise and experience he
opined that the applicant would have been accepted into the program but for his
injuries sustained at the time of the assault. The panel in that case stated in pertinent
part “the applicant’s future employment success was not a matter of speculation; there
was direct testimony from a highly credible impartial source that he would have been
employed but for the injury.”
{¶29}In the case at bar we lacked the testimony of an individual such as
Captain Smith to inform us about the ROTC program and the relationship between the
scholarship and the stipend. The letter presented from Lieutenant Colonel Bradley D.
Harrington does not compare to the live testimony of Captain Smith.
{¶30}Therefore, we find the applicant has failed to meet his burden to prove, by
a preponderance of the evidence, that he sustained work loss by the inability to utilize
his scholarship with the stipend benefit. Accordingly, the Attorney General’s October
23, 2009 decision is affirmed.
Case No. V2009-40790 Page 9
_______________________________________
KARL C. KERSCHNER
Commissioner
_______________________________________
SUSAN G. SHERIDAN
Commissioner
Lloyd Pierre-Louis, Commissioner, Dissenting Opinion
{¶31}I respectfully dissent. I believe the applicant has sustained his burden of
proof and should be granted an award for work loss as the result of the loss of the
stipend due to injuries sustained from the criminally injurious conduct.
{¶32}I found the applicant’s testimony to be credible and unrefuted. The
applicant proved that he was eligible to receive an Army ROTC 4-year scholarship to
attend the University of Kentucky. The fact was established by the letter of October 27,
2008 signed by Bradley D. Harrington, Lieutenant Colonel, USAR.
{¶33}First, compensation in this case for the loss of the stipend is supported by
In re Dimon, Jr., V83-61532tc (11-2-84). In that case, due to the applicant’s inability to
participate in the United States Marine Corps Platoon Leaders Class as the result of
being a victim of criminally injurious conduct, the applicant was granted an award of
reparations for one year of longevity pay. I believe that the case at bar is analogous to
the Dimon, Jr. case. In both cases, the applicants were accepted in a military program
which offered educational and financial benefits. Both were injured prior to
participation in the program, and, as a result, both suffered work loss.
{¶34}Second, I reject the argument offered by the Attorney General that the
applicant would not have been physically fit enough to pass the Army’s Physical Fitness
Test. The evidence established that the year prior to his expected attendance at the
University of Kentucky the applicant played high school varsity football and baseball at
Case No. V2009-40790 Page 10
Olentangy High and also participated in summer travel baseball. Given the physical
capabilities required in modern varsity athletics, I am confident that the applicant
possessed the physical attributes necessary to meet the scholarship requirements.
{¶35}The applicant also testified that successful completion of the ROTC
program would have exempted him for participating in boot camp. Enlistees are
required to complete boot camp but are remunerated for their participation. The
stipend the applicant was to receive can be viewed as a pay-as-you-go compensation
for the successful completion of boot camp.
{¶36}The majority opinion emphasizes the lack of specific testimony from
Lieutenant Colonel Bradley D. Harrington or someone in the ROTC program. While
that testimony would have strengthened applicant’s argument it was not fatal to
establishing his burden of proof. It should be noted that the Attorney General offered
no evidence to refute the applicant’s testimony. As commissioners we have the duty to
evaluate witnesses and adjudge their veracity and credibility. I found the applicant’s
testimony credible and unrefuted.
{¶37}Finally, the majority believes the stipend is merely an element of a
scholarship, not a distinct benefit. However, Black’s Law Dictionary defines stipend as
“a salary or other regular periodic payment.” Lieutenant Colonel Harrington in his letter
of October 27, 2008 lists four separate and specific benefits the applicant was to receive
from the ROTC scholarship “full out of state tuition and fees ($15,884.00 per year),
room and board ($5,887.00 per year), an annual book allowance ($1,200.00) and an
annual stipend ($3,000.00).” I believe this stipend was compensation for work
Case No. V2009-40790 Page 11
performed by the applicant for his training to become an officer in the United States
Army. Therefore, I would grant the applicant’s claim for work loss, since the stipend
met the definition contained in R.C. 2743.51(G). Therefore, I respectfully dissent and
would reverse the October 23, 2009 decision of the Attorney General.
_______________________________________
LLOYD PIERRE-LOUIS
Presiding Commissioner
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: CHRISTIAN M. LANGWASSER
CHRISTIAN M. LANGWASSER
Applicant
Case No. V2009-40790
Commissioners:
Karl C. Kerschner
Susan G. Sheridan
ORDER OF A TWO-COMMISSIONER PANEL
Case No. V2009-40790 Page 12
IT IS THEREFORE ORDERED THAT
{¶38}1) The October 23, 2009 decision of the Attorney General is AFFIRMED;
{¶39}2) 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}3) Costs are assumed by the court of claims victims of crime fund.
_______________________________________
KARL C. KERSCHNER
Commissioner
_______________________________________
SUSAN G. SHERIDAN
Commissioner
ID #I:\Victim Decisions to SC Reporter\Panel Decisions\2011\January 2011\V2009-40790 Langwasser.wpd\DRB-tad
A copy of the foregoing was personally served upon the Attorney General and
sent by regular mail to Delaware County Prosecuting Attorney and to:
Filed 1-27-11
Jr. Vol. 2277, Pgs. 179Sent to S.C. Reporter 10-13-11