IN RE: Application of ANTONIO E. GOMEZ. (2011)

ORDER

This matter is before the Court on Claimant's request for compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act, 740 ILCS 45/1, et seq., (2000). Claimant was the victim of aggravated domestic battery, a violent crime as defined in §2(c) of the Act, in Chicago, Illinois on April 4, 2009. All of the eligibility requirements of §6.1 of the Act have been met.

Claimant seeks compensation for both medical and hospital expenses and for loss of earnings. The issue of medical and hospital expenses have been stipulated. Thus the only issue in contention is calculation of the lost earnings benefit. The Claimant argues that in determining lost earnings, the Court should first look at the amount of Claimant's lost wages and subtract that from the amount reimbursed by the employer or other collateral sources. Claimant would argue that he is entitled to recovery for any sum, not reimbursed up to the statutory cap for lost earnings (currently $1,000/monthly).

The State, on the other hand, argues that in calculating lost wages you must first look at the statutory cap for reimbursement of lost income and then subtract from that the employer or collateral reimbursements.

The Court of Claims has previously held that the “loss of earnings shall be determined on the basis of the victim's average monthly earnings for the six months immediately preceding the date of the injury or on $500.00 per month, whichever is less.” In re SWAN, 34 Ill. Ct. Cl. 426, 428 (1981). In Swan, the Claimant's average monthly earnings were $507.69. Id. The Claimant was disabled and unable to work for 8 months and 4 working days. Id. The Claimant's total loss of earnings was $4,153.84 and the compensable amount of loss of earnings was $4,090.92 (based on $500/month, the statutory maximum compensable amount under the Act at that time). The Claimant received $1,300 in disability payment and this was deducted from the $4,090.92 compensable amount for a total award of $2,790.92.

Additionally, In re HAMILTON, 37 Ill. Ct. Cl. 452, 453 (1985), involved a Claimant who received a fracture of the cervical spine when he pulled his son to the floor of the train in an attempt to protect him. Id. The Claimant's average monthly earnings were $1,523.54. Id. at 454. The Claimant loss of earnings during his absence of 17 months and 16 working days was $27,008.18. The compensable amount was $13,295.44 (calculated using the $750.00 maximum compensable amount under the Act at that time). Id. The Claimant received $3,230.36 in sick pay reimbursements that were counted as applicable deductions and subtracted from the $13,295.44 (the then maximum compensable amount) for a total loss of earnings court award of $10,065.08. Id. at 455.

Claimant cites In Re Mary Ann Square, Case No. 05-CV-1360, as instructive. That case is an unpublished opinion and is inopposite of our published opinions on point.

In this case, the Claimant's net monthly income was $3.151.35. The Claimant was disabled for 63 working days. The Claimant's compensable amount was $2,863.35, based on the $1,000 per month maximum compensable amount of loss of earnings under the Act. Following the established case law of Swan, Hamilton, and other Court of Claims cases, the claimant's short-term disability of $1,584.73 and vacation pay of $400.12 is subtracted from the Claimant's compensable loss of earnings for a total of $878.50.

Therefore, it is hereby ordered that the sum of $878.50 (eight hundred seventy-eight dollars and fifty cents) be and is hereby awarded to Antonio Gomez, an innocent victim of a violent crime.

Birnbaum, J.