In re Khourie

[Cite as In re Khourie, 2011-Ohio-7074.]
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: DANIEL KHOURIE
DANIEL KHOURIE
LISA KHOURIE
Applicants
Case No. V2011-60085
Commissioners:
Karl C. Kerschner, Presiding
William L. Byers IV
Necol Russell-Washington
ORDER OF A THREE-
COMMISSIONER PANEL
{¶1} On July 21, 2010, the applicant, Lisa Khourie, filed a compensation application on
behalf of her son, Daniel Khourie, as the result of an assault which occurred on
February 13, 2010. On November 18, 2010, the Attorney General issued a finding of
fact and decision determining that the applicant had met the necessary jurisdictional
requirements to qualify her son as a victim of criminally injurious conduct and she was
granted an award of reparations in the amount of $4,412.87, of which $741.90
represented payment of dental expenses incurred for services rendered to the victim
and $3,670.97, represented reimbursement to the applicant for medical expenses,
prescription expenses, and mileage incurred for the benefit of the victim. The
applicant’s requests for reimbursement of food items purchased for the victim due to the
broken jaw he sustained as a result of the assault were denied since the Attorney
General determined this was not a compensable expense under the program.
{¶2} On November 30, 2010, the applicant submitted a request for reconsideration.
On January 26, 2011, the Attorney General rendered a Final Decision. The applicant
Case No. V2011-60085 - 2 - ORDER
was granted an additional award in the amount of $17.32, which represented
reimbursement of applicant’s purchase of over-the-counter medications for the victim.
However, the Attorney General again denied the applicant’s request for food items
purchased for the victim. The Attorney General stated in pertinent part:
a. "However, the law does not allow compensation for basic living
expenses [R.C. 2743.51(E) and (F)(1)] In re Segebart (1989), 61 Ohio
Misc. 2d 428. Additionally, the court has held that Ensure is not an
allowable expense when due to victim’s jaw being wired shut the Ensure
replaced the victim’s normal meal. The applicants’ did not incur any
additional cost than what they normally would have spent had they
purchased regular food items. In re Gilmore, V02-59550tc (1-29-04)."
{¶3} On January 28, 2011, the applicant filed a notice of appeal from the January 26,
2011 Final Decision of the Attorney General. Hence, a hearing was held before this
panel of commissioners on June 15, 2011 at 12:00 P.M.
{¶4} The applicant’s attorney, Michael Falleur, appeared at the hearing, while Assistant
Attorney General Renata Staff represented the state of Ohio.
{¶5} The applicant stated the only issue in this case is whether the applicant was
reasonable in incurring expenses for the victim’s liquid diet and nutritional supplements,
rather than using a previously purchased meal plan, since the victim was a freshman at
The Ohio State University at the time of the criminal incident. The applicant withdrew
the request for reimbursement for juices and soups purchased for the victim, since the
victim could have used his meal plan card to make such purchases. The applicant
seeks reimbursement for approximately $260.00 which was incurred to purchase
nutritional supplements. The applicant conceded that if she had been aware that
nutritional supplements were available under the meal plan that course would have
been taken, however, she was unaware of this possibility at the time of her son’s injury.
Furthermore, there was a question whether there would have been sufficient money on
the meal plan to purchase both the liquid diet foods and the nutritional supplements.
Case No. V2011-60085 - 3 - ORDER
{¶6} The Attorney General asserts this panel should follow the previous holding in In re
Gilmore, V02-59550tc (1-29-04), wherein a panel of commissioners determined the
purchase of Ensure was not a compensable expense since this compared to an
expense a person would normally incur for regular living expenses. Accordingly, the
Final Decision should be affirmed.
{¶7} The applicants’ rested their case and the Attorney General called The Ohio State
University Executive Chef, Mark Newton, to testify via telephone. Mr. Newton testified
that liquid meals would have to be requested through dining services and the cost of
these meals would be covered by the meal plan. (A meal plan at OSU would require a
student to receive a card. The card would contain a number of "swipes" consistent with
the type of meal plan purchased. Each swipe would be the equivalent of a full meal).
By request, a student could be provided with a nutritional supplement, i.e., Ensure,
Boost, Special K Shakes, etc. The request could be made at their regular dining facility
or with the central office of food services.
{¶8} Upon cross-examination, Mr. Newton revealed that the cost of any average
"swipe" on a meal plan ranges between $7.50 and $7.75. Mr. Newton testified that
Ensure would constitute a complete meal. He conceded that if a doctor prescribed a
liquid meal plus Ensure such would constitute two meals, or two "swipes." Ensure and
Boost would have to be requested by the student from dining services. Mr. Newton
admitted that there was a disconnect between OSU Dining Services and OSU Resident
Housing, in providing students with information concerning dining options available to
students.
{¶9} On redirect examination, Mr. Newton testified that a student would have to contact
him to have a liquid diet provided, however, residential hall or dining facilities individuals
could be initially contacted and they would put the student in touch with Mr. Newton.
Whereupon, Mr. Newton’s testimony was concluded.
{¶10} In closing, the applicant argued that In re Gilmore did not overrule prior court
holdings In re Casto, V2002-52016tc (5-13-03) and In re Piscioneri, V2002-50277jud
Case No. V2011-60085 - 4 - ORDER
(1-9-03). Gilmore dealt with the applicant failing to meet his burden to prove an
additional expense had been incurred for the purchase of nutritional supplements. In
the case at bar, applicant contends a liquid meal plus a nutritional supplemental would
have been double the cost. Furthermore, the victim contends he acted reasonably, but
due to miscommunication or a disconnect, he never reached dining services to learn
about the availability of a liquid diet meal or nutritional supplements. Finally, because it
was recommended he eat both a liquid meal and a nutritional supplement he incurred
additional allowable expense.
{¶11} In closing the Attorney General urges this panel to follow the holding of Gilmore,
finding Ensure was a daily living expense which could not be compensated from the
program. The Attorney General focused on a the letter dated May 26, 2011, written by
Pamela C. Fields, Administrator, for the office of Jeffrey W. Krause, D.D.S.. The
Attorney General contends that although the letter, not written by a medical
professional, recommends that the victim consume Ensure, Boost, and Carnation
instant breakfast these are meal replacement products that are eaten in lieu of eating a
regular meal. Finally, the medical prescription written by Jeffrey Krause, D.D.S. dated
February 16, 2010, is a liquid diet order and directs the victim to consume a full liquid
diet for the period of six weeks, but makes no mention of nutritional supplements.
Therefore, the Attorney General’s Final Decision should be affirmed.
{¶12} Finally, the applicant contended that the letter from Fields merely summarized the
doctor’s instructions to the victim. The crux of this case is whether the applicant acted
reasonably in incurring expenses for nutritional supplements when there was a lack of
communication between housing and dining services.
{¶13} R.C. 2743.51(F)(1) in pertinent part states:
a. "(F)(1) ‘Allowable expense’ means reasonable charges incurred for
reasonably needed products, services, and accommodations, including
those for medical care, rehabilitation, rehabilitative occupational training,
Case No. V2011-60085 - 5 - ORDER
and other remedial treatment and care and including replacement costs
for eyeglasses and other corrective lenses."
{¶14} The applicant has the burden to prove, by a preponderance of the evidence, that
he incurred an allowable expense. See R.C. 2743.52.
{¶15} The cost for Ensure is a compensable expense if it is found medically necessary.
In re Casto, V2002-52016tc (5-13-03). See also In re O’Rourke, V2002-51770tc
(3-17-03).
{¶16} The cost of Ensure is not compensable if no additional cost was incurred above
what the applicant would have normally spent on food for the victim. In re Gilmore,
V2003-40887tc (1-29-04).
{¶17} 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.”
{¶18} 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.”
{¶19} From review of the case file and upon full and careful consideration given to the
arguments of the parties, we find the applicant has failed to prove, by a preponderance
of the evidence, that the nutritional supplements she purchased for her son are a
compensable expense pursuant to R.C. 2743.51(F)(1). We believe the best evidence
presented is the prescription written by Jeffrey Krause, D.D.S. on February 26, 2010.
That prescription only requires that the victim consume a liquid diet, nothing is
mentioned concerning the need for nutritional supplements. The letter written by
Pamela Fields, administrator at Dr. Krause’s office, is not as persuasive as the doctor’s
prescription since it was not written by the doctor and it was written after this claim had
already been appealed to this court. The applicant offered no expert testimony or
Case No. V2011-60085 - 6 - ORDER
witnesses to prove, by a preponderance of the evidence, that nutritional supplements
were medically required in this situation. This court has consistently held that normal
living expenses are not a compensable loss under the program. Therefore, the
January 26, 2011 decision of the Attorney General is affirmed.
{¶20} IT IS THEREFORE ORDERED THAT
{¶21} The January 26, 2011 decision of the Attorney General is AFFIRMED;
{¶22} This claim for reimbursement of the cost of nutritional supplements is DENIED
and judgment is rendered for the state of Ohio;
{¶23} This order is entered without prejudice to the applicants’ right to file a
supplemental compensation application, within five years of this order, pursuant to R.C.
2743.68;
{¶24} Costs are assumed by the court of claims victims of crime fund.
_______________________________________
KARL C. KERSCHNER
Presiding Commissioner
_______________________________________
WILLIAM L. BYERS IV
Commissioner
_______________________________________
NECOL RUSSELL-WASHINGTON
Commissioner
ID #I:\Victim Decisions to SC Reporter\Panel Decisions\2011\August 2011 part II\V2011-60085 Khourie.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:
Case No. V2011-60085 - 7 - ORDER
Filed 8-25-11
Jr. Vol. 2280, Pgs. 47-53
Sent to S.C. Reporter 10-12-12