In re Benedetti

[Cite as In re Benedetti, 2009-Ohio-7221.]
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: DENISE A. BENEDETTI
DENISE A. BENEDETTI
Applicant
Case No. V2009-40170
Commissioners:
Gregory P. Barwell, Presiding
Thomas H. Bainbridge
Randi Ostry LeHoty
ORDER OF A THREE-
COMMISSIONER PANEL
{1}On June 19, 1992, a single commissioner determined the applicant met all
the jurisdictional requirements necessary to qualify to receive an award of reparations.
On June 19, 1992, June 30, 1995, January 11, 1996, March 21, 1997, March 3, 1998,
September 1, 1998 and January 28, 1999 a single commissioner granted awards of
reparations to the applicant which totaled $9,974.04. On January 16, 2001, August 6,
2002, February 12, 2003, February 4, 2004, March 31, 2004, June 17, 2005, November
20, 2006, and February 2, 2007 the Attorney General issued decisions that granted
reimbursement in the amount of $9,300.26. The applicant has received awards from
the single commissioner and the Attorney General totaling $19,274.30.
{2}On June 20, 2008, the applicant filed a supplemental compensation
application. On October 24, 2008, the Attorney General issued a finding of fact and
decision granting the applicant an additional award in the amount of $250.76, of which
$190.00 was paid directly to the provider James P. Reardon Ph.D., while $60.76 was
paid to the applicant in mileage expenses. On November 24, 2008, the applicant
submitted a request for reconsideration. The applicant asserted her prescription
expenses and the costs associated with the security system at her home are medically
Case No. V2009-40170 - 2 - ORDER
necessary and related to the criminally injurious conduct of February 19, 1991. On
January 23, 2009, the Attorney General rendered a Final Decision modifying its initial
decision of October 24, 2008 and granting the applicant an additional award in the
amount of $700.24 which represented reimbursement of prescription expenses.
However, the Attorney General denied the maintenance costs of the security system
since it was recently discovered that the offender was incarcerated. On February 20,
2009, the applicant filed a notice of appeal from the January 23, 2009 Final Decision of
the Attorney General. Hence, a hearing was held before this panel of commissioners
on July 22, 2009 at 11:00 A.M.
{3}The applicant, Denise Benedetti, and her counsel, Philip Gauer, appeared at
the hearing, while Assistant Attorney General Amy O’Grady represented the state of
Ohio.
{4}The issue presented was whether the expense for a home security system is
a compensable allowable expense under the program pursuant to R.C. 2743.51(F)(1).
Expenses for the maintenance of the system had been paid both by the former single
commissioner and the Attorney General through October 31, 2006. Furthermore, the
offender has been incarcerated since 1991.
{5}The applicant, Denise Benedetti testified. The applicant asserted that she
monitors the Department of Rehabilitation and Corrections website so she was aware
that the offender has been incarcerated since 1991. She testified that she depends on
the home security system 24 hours per day seven days per week. Without the system
she would not feel safe in her home.
{6}Under cross-examination, Ms. Benedetti testified she still sees Dr. Reardon,
but he has been unavailable due to a commitment with a professional football team.
She stated that her doctor said a home security system would be beneficial. She
related that the program has paid the monitoring costs since the system was installed.
Whereupon, the testimony of the applicant was concluded.
Case No. V2009-40170 - 3 - ORDER
{7}The applicant referenced two letters written by Dr. Reardon. In a letter
dated September 16, 2008, Dr. Reardon stated the following in response to a question
posed as to the reasonable degree of medical certainty for a home security system.
Case No. V2009-40170 - 4 - ORDER
{8}“It is likely that Denise will always need a home security system. * * * The
home security system does not make her feel safe but it does help her to feel ‘safer.’ It
is my belief that she will need one of these systems throughout the rest of her life in all
likelihood even though she has recovered substantially and has continued to function
despite some of the difficulties she still manifests.”
{9}On December 22, 2008, Dr. Reardon wrote a second letter which in pertinent
part stated:
{10}“It is my opinion to reasonable medical/psychological certainty that Denise
Benedetti absolutely needs a home security system in view of the assault and rape that
was perpetrated on her on February 19, 1991. * * * The home security system is not a
luxury for her, it is a necessity. Even with that, the security system does not make her
feel safe but it enables her to feel ‘somewhat safer.’ * * * In reality, the fact that her
assailant continues to be incarcerated is irrelevant because having gone through that
experience ‘anyone’ can be perceived as a threat by her. The reality is that given the
fact that she was assaulted 17 years ago, at some point in the next 5, 10 years or so it
is likely that her assailant will come up for parole and at some point he probably will be
released. Unfortunately, the threat of that is enough to raise Denise’s anxiety level
tremendously over and above the levels that they already are, and when he is released
it will be difficult for her.”
{11}The Attorney General argued that based on Dr. Reardon’s characterization
of the home security system expense being a “necessity,” that the system only makes
her feel “somewhat safer,” and the continuing cost of the home security raises a
question with regard to whether the expense is reasonable. The Attorney General
contends the expense is not reasonable since the program should not have to expend
money to protect the applicant from all would-be assailants but only the offender who
perpetrated the crime against her. Whereupon, the hearing was concluded.
Case No. V2009-40170 - 5 - ORDER
{12}“(F)(1) ‘Allowable expense’ means reasonable charges incurred for
reasonably needed products, services, and accommodations, including those
for medical care * * *”
{13}From review of the file and with full and careful consideration given to the
testimony presented at the hearing, we find the maintenance expenses for the home
security system constitute an allowable expense pursuant to R.C. 2743.51(F)(1). We
believe the Attorney General’s reliance on protection from a particular offender is
misplaced. The case at bar is analogous to the panel’s holding in In re Kaiser,
V90-56922tc (10-25-91). In that case, the victim was sexually assaulted by an
unknown offender who broke into her home. The offender was never identified. The
panel focused on the testimony of the applicant who stated that “the security bars
provided her a manageable level of security but were not enough to encourage her to
feel totally safe in the house.” This testimony coupled with letters from therapists
convinced the panel that the security bars were a “medically necessary
accommodation.”
{14}In this matter, the applicant’s testimony establishes that her fears are real
and the security system provides her some sense of well-being. Accordingly, we find
the home security maintenance expenses qualify as an allowable expense pursuant to
R.C. 2743.51(F)(1). Therefore, the January 23, 2009 decision of the Attorney General
is reversed. The Attorney General is directed to pay the maintenance expense for the
home security system from October 31, 2006 through the date of this order.
IT IS THEREFORE ORDERED THAT
{15}1) The January 23, 2009 decision of the Attorney General is REVERSED
and judgment is rendered in favor of the applicant;
Case No. V2009-40170 - 6 - ORDER
{16}2) This claim is remanded for payment of the home security system
maintenance expense from October 31, 2006 through the date of this order;
{17}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;
{18}4) Costs are assumed by the court of claims victims of crime fund.
_______________________________________
GREGORY P. BARWELL
Presiding Commissioner
_______________________________________
THOMAS H. BAINBRIDGE
Commissioner
_______________________________________
RANDI OSTRY LE HOTY
Commissioner
ID #I:\Victim Decisions to SC Reporter\Panel Decisions\2009\Nov-Dec 2009\V2009-40170 Benedetti.wpd\DRB-tad
A copy of the foregoing was personally served upon the Attorney General and
sent by regular mail to Franklin County Prosecuting Attorney and to:
Filed on 11-20-09
Jr. Vol. 2274, Pgs. 5-10
Sent to S.C. Reporter 9-30-11