In re Roukey

[Cite as In re Roukey, 2023-Ohio-3342.]
IN THE COURT OF CLAIMS OF OHIO
IN RE: KRISTOPHER R. ROUKEY Case No. 2022-00799VI
RACHEL ROUKEY Magistrate Daniel R. Borchert
LEE BLANKENSHIP
DECISION OF THE MAGISTRATE
Applicants
{¶1} On May 2, 2021, Kristopher Roukey, victim, was shot and killed while
working as a driver for Lyft. He was transported to a local hospital, where he was
pronounced dead. Rachel Roukey, Kristopher’s wife, and Lee Blankenship (collectively
“applicants”) filed a compensation application with the Ohio Attorney General on
August 27, 2021. Applicants sought reimbursement for medical expenses, counseling,
lost wages, funeral and burial, lost financial support for victim’s dependents, and items
held as evidence.
{¶2} On December 24, 2021 the Attorney General issued a finding of fact and
decision denying applicants’ claim because, although Kristopher was a victim, applicants
did not submit the proper documentation in order for the Attorney General to calculate
their economic loss. On January 23, 2022, applicants submitted a request for
reconsideration. Therein, counsel for applicants wrote, “Documents to be uploaded to
Portal.”
{¶3} On October 19, 2022, the Attorney General rendered a Final Decision, in
which the Attorney General stated that the Finding of Fact and Decision would not be
modified because applicants did not provide the proper documentation in support of work
loss or documentation regarding Bureau of Workers’ Compensation benefits or Lyft
insurance. On November 18, 2022, applicants filed a notice of appeal from the Final
Decision of the Attorney General. Hence, a hearing was held before this magistrate on
April 18, 2023. Assistant Attorney General Candice Suffren appeared on behalf of the
State of Ohio. Matthew Shaughnessy appeared on behalf of applicants.
Case No. 2022-00799VI -2- DECISION
{¶4} Rachel Roukey testified that she was married to Kristopher for 19 years.
They had two kids together. She testified that Kristopher began working for Lyft in 2020.
Because he was an independent contractor, Lyft issued him a 1099 instead of a W-2.
Rachel identified applicants’ exhibit 1 as a true and accurate copy of the taxes she filed
from 2016 to 2021, including the W-2s and 1099s from all of their employments. She
testified that she called the IRS twice to try to obtain tax transcripts from the IRS, but the
IRS sent them a letter denying each request. She explained that the IRS phone system
did not allow her to talk to a person. A denial letter from the IRS is applicants’ exhibit 2.
The parties stipulated that the Attorney General has both applicants’ exhibits 1 and 2.
{¶5} Rachel further testified that she did not file a claim with the Bureau of
Workers’ Compensation because Kristopher was an independent contractor. She also
clarified that she has not received anything from Lyft, Kristopher’s employer at the time
of his death. She is not aware of any insurance from Lyft that would have compensated
the family.
{¶6} The Attorney General called Julie Duerr as a witness. Duerr is an economic
loss investigator for the Crime Victim Section of the Attorney General’s Office. Duerr
testified that she did not receive copies of the tax transcripts from the IRS, which is what
the Attorney General usually uses to verify earnings. Without the tax transcripts, she was
unable to verify the reported earnings from the 1040s that applicants submitted.
Accordingly, she was unable to calculate economic loss.
{¶7} During cross-examination, when asked if the numbers on 1040s are
different from the numbers on tax transcripts, Duerr testified that she does not know
without the tax transcripts. When asked if there is any number that is typically on the tax
transcripts that is not normally on a 1040, Duerr answered that she does not know since
she has not seen the tax transcripts in this case. Duerr admitted that the Attorney
General’s Office used to accept 1040s from a claimant in order to claim work loss, but
they can no longer do that because the Social Security Administration has become stricter
on not giving out the information. She further admitted that the recently submitted tax
records include all of the attachments needed to calculate work loss, if the Attorney
General’s Officer were able to verify the numbers. When asked if there was anything that
Case No. 2022-00799VI -3- DECISION
causes her to believe that the information provided is not accurate, she answered that
she did not know.
{¶8} No further witnesses were called. Applicants argued in closing that the
Attorney General has all of the information they need and no reason to believe that the
records provided are not accurate. The applicants have therefore met their burden of
providing the records needed to calculate work loss. In the absence of evidence
indicating that the income was something other than what the submitted documents show,
applicants have met their burden of proving work loss by a preponderance of the
evidence. Additionally, there are no collateral sources because an independent
contractor is not eligible for workers’ compensation and, to the best of applicants’
knowledge, there is no applicable insurance provided by Lyft.
{¶9} The Attorney General argued in closing that applicants have not satisfied
their burden of proving the amount of work loss. Revised Code 2743.59(B) says that the
Attorney General may require the applicants to supplement the application with relevant
information. The Attorney General never received a letter from the IRS stating why the
IRS will not give the applicants the information they need to submit. Whereupon, the
hearing was concluded.
{¶10} R.C. 2743.52(A) places the burden of proof on an applicant to satisfy the
Court of Claims that the requirements for an award have been met by a preponderance
of the evidence. In re Rios, 8 Ohio Misc. 2d 4, 455 N.E.2d 1374 (Ct. of Cl. 1983).
{¶11} 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.”
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.”
{¶12} The credibility of witnesses and the weight attributable to their testimony are
primarily matters for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967), paragraph one of the syllabus. The court is free to believe or disbelieve, all or
Case No. 2022-00799VI -4- DECISION
any part of each witness’s testimony. State v. Antill, 176 Ohio St. 61, 197 N.E.2d 548(1964).
{¶13} There are two elements necessary to prove work loss. First, one must prove
work loss was sustained by showing an inability to work. Second, one must prove the
monetary amount of work loss. Both elements must be proven by corroborating evidence.
In re Berger, 91 Ohio Misc.2d 85, 698 N.E.2d 93 (Ct. of Cl.1994). Additionally, self-
employment income must be calculated “on a case-by-case basis to afford each applicant
a just work loss award depending on their unique and individual circumstances”. In re
Becraft, Ct. of Cl. No. V2009-40862tc, 2010-Ohio-6718, ¶ 29. The current earning
capacity of the victim at the time of his death is the best evidence of work loss. Id. at ¶
28.
{¶14} It is undisputed that Kristopher was a victim of crime and that he is now
unable to work. The issue in dispute is whether applicants have proven the monetary
amount of work loss by corroborating evidence. Upon careful review of the case file,
applicants’ testimony, and the arguments made by the parties, I conclude that applicants
have satisfied their burden of proving the monetary amount of work loss.
{¶15} The Attorney General acknowledged that it has received the tax information,
including W-2s and 1099s, identified as applicants’ exhibit 1. Although the Attorney
General’s witness testified that it was not the best evidence of the victim’s past earnings,
the Attorney General has not shown that any information provided by the applicants is
inaccurate. I therefore conclude that applicants have met their burden. See In re Butler,
Ct. of Cl. No. V89-83822tc (November 8, 1991) (work history was established by
evidence, notwithstanding the victim’s failure to file tax returns and pay taxes on a regular
basis).
{¶16} The Attorney General also denied the application because applicants failed
to provide (1) “Lyft insurance coverage information” and (2) “Outcome of claim filed with
the Bureau of Worker’s Compensation.” (Memorandum, Record, p. 32.) The Attorney
General argued that it needed the information in order to verify whether applicants were
entitled to compensation from collateral sources. The version of R.C. 2743.51 applicable
to this case defines “collateral source” as follows:
Case No. 2022-00799VI -5- DECISION
“‘Collateral source’ means a source of benefits or advantages for economic loss
otherwise reparable that the victim or claimant has received, or that is readily
available to the victim or claimant, from any of the following sources:
***
“(5) Workers’ compensation
***
“(7) Proceeds of a contract of insurance payable to the victim for loss that
the victim sustained because of the criminally injurious conduct;
***
“(9) That portion of the proceeds of all contracts of insurance payable to the
claimant on account of the death of the victim that exceeds fifty thousand
dollars;”
{¶17} R.C. 2743.51(B).
{¶18} However, Rachel credibly testified that they are not aware of any insurance
provided by Lyft that would compensate the family. She also credibly testified that she
did not file a claim with the Bureau of Workers’ Compensation because Kristopher was
an independent contractor. “Workers’ compensation is limited to ‘employees’ and their
dependents. An independent contractor is not an ‘employee’ for the purposes of workers’
compensation law.” Dailey v. Trimble, 10th Dist. Franklin No. 95APE07-951, 1994 Ohio
App. LEXIS 6120, 6 (Dec. 29, 1995). Therefore, the undersigned concludes that
applicants are not entitled to any benefits from collateral sources.
{¶19} In summary, applicants have proven the monetary amount of work loss and
that they are not entitled to any benefits from collateral sources. Accordingly, I
recommend that the Attorney General’s Final Decision of October 19, 2022, be
REVERSED, and that the case be REMANDED to the Attorney General for calculation of
an award in accordance with this decision.
{¶20} A party may file written objections to the magistrate’s decision within 14
days of the filing of the decision, whether or not the court has adopted the decision during
that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files
objections, any other party may also file objections not later than ten days after the first
objections are filed. A party shall not assign as error on appeal the court’s adoption of
Case No. 2022-00799VI -6- DECISION
any factual finding or legal conclusion, whether or not specifically designated as finding
of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and
specifically objects to that factual finding or legal conclusion within 14 days of the filing of
the decision, as required by Civ.R. 53(D)(3)(b).
DANIEL R. BORCHERT
Magistrate
A copy of the foregoing was personally served upon the Attorney General and sent
by regular mail to:
Filed 6/1/23
Sent to S.C. Reporter 9/20/23
Case No. 2022-00799VI -7- DECISION
IN THE COURT OF CLAIMS OF OHIO
IN RE: KRISTOPHER R. ROUKEY Case No. 2022-00799VI
RACHEL ROUKEY Judge Lisa L. Sadler
LEE BLANKENSHIP
ORDER
Applicants
{¶21} On April 18, 2023, a hearing was held in this matter before a Magistrate of
this court. On June 1, 2023, the Magistrate issued a Decision wherein he found that
applicants satisfied their burden of proving the monetary amount of work loss and that
they were not entitled to any benefits from collateral sources. Therefore, the Magistrate
recommended that the Attorney General’s Final Decision of October 19, 2022 be reversed
and that the case be remanded to the Attorney General for calculation of an award.
{¶22} Civ.R. 53(D)(3)(b)(i) states, in part: “A party may file written objections to a
magistrate’s decision within fourteen days of the filing of the decision, whether or not the
court has adopted the decision during that fourteen-day period as permitted by Civ.R.
53(D)(4)(e)(i).” No objections were filed.
{¶23} Upon review of the claim file, and the Magistrate’s Decision, it is the Court’s
finding that the Magistrate was correct in his analysis of the issues and application of the
law. Accordingly, this court adopts the Magistrate’s Decision and recommendation as its
own.
{¶24} IT IS HEREBY ORDERED THAT
{¶25} The June 1, 2023 Decision of the Magistrate is ADOPTED;
{¶26} This claim is REMANDED and judgment entered for applicant;
{¶27} Costs assumed by the reparations fund.
Case No. 2022-00799VI -8- DECISION
LISA L. SADLER
Judge
A copy of the foregoing was personally served upon the Attorney General and sent
by regular mail to Summit County Prosecuting Attorney and to:
Filed 6/7/23
Sent to S.C. Reporter 9/20/23