GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1997

S	1 

SENATE BILL 1506

Short Title:  Victims' Compensation Act.	(Public)

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Sponsors: Senator Gulley.

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Referred to:  Judiciary.

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May 28, 1998

A BILL TO BE ENTITLED
AN ACT TO AMEND THE VICTIMS' COMPENSATION ACT.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 15B-2 reads as rewritten:
"§ 15B-2.  Definitions.
As used in this Chapter, unless the context requires otherwise:
(1)	"Allowable expense" means reasonable charges incurred for reasonably needed products, services, and accommodations, including those for medical care, rehabilitation, medically related property, and other remedial treatment and care.
		Allowable expense includes a total charge not in excess of three thousand five hundred dollars ($3,500) for expenses related to funeral, cremation, and burial, including transportation of a body, but excluding expenses for flowers, gravestone, and other items not directly related to the funeral service.
(2)	" Claimant" means any of the following persons who claims an award of compensation under this Chapter:
a.	A victim;
b.	A dependent of a deceased victim;
c.	A third person who is not a collateral source and who provided benefit to the victim or his family other than in the course or scope of his employment, business, or profession;
d.	A person who is authorized to act on behalf of a victim, a dependent, or a third person described in subdivision c.
	The claimant, however, may not be the offender or an accomplice of the offender who committed the criminally injurious conduct.
(3)	" Collateral source" means a source of benefits or advantages for economic loss otherwise compensable that the victim or claimant has received or that is readily available to him from any of the following sources:
a.	The offender;
b.	The government of the United States or any of its agencies, a state or any of its political subdivisions, or an instrumentality of two or more states;
c.	Social security, medicare, and medicaid;
d.	State-required, temporary, nonoccupational disability insurance;
e.	Worker's compensation;
f.	Wage continuation programs of any employer;
g.	Proceeds of a contract of insurance payable to the victim for loss that he sustained because of the criminally injurious conduct;
h.	A contract providing prepaid hospital and other health care services, or benefits for disability.
(4)	" Commission" means the Crime Victims Compensation Commission established by G.S. 15B-3.
(5)	" Criminally injurious conduct" means conduct that by its nature poses a substantial threat of personal injury or death, and is punishable by fine or imprisonment or death, or would be so punishable but for the fact that the person engaging in the conduct lacked the capacity to commit the crime under the laws of this State. Criminally injurious conduct includes conduct that amounts to an offense involving impaired driving as defined in G.S. 20-4.01(24a), and conduct that amounts to a violation of G.S. 20-166 if the victim was a pedestrian or was operating a vehicle moved solely by human power or a mobility impairment device. For purposes of this Chapter, a mobility impairment device is a device that is designed for and intended to be used as a means of transportation for a person with a mobility impairment, is suitable for use both inside and outside a building, and whose maximum speed does not exceed 12 miles per hour when the device is being operated by a person with a mobility impairment. Criminally injurious conduct does not include conduct arising out of the ownership, maintenance, or use of a motor vehicle when the conduct is punishable only as a violation of other provisions of Chapter 20 of the General Statutes. Criminally injurious conduct shall also include an act of terrorism, as defined in 18 U.S.C. § 2331, that is committed outside of the United States against a citizen of this State.
(6)	" Dependent" means an individual wholly or substantially dependent upon the victim for care and support and includes a child of the victim born after his death.
(7)	" Dependent's economic loss" means loss after a victim's death of contributions of things of economic value to his dependents, not including services they would have received from the victim if he had not suffered the fatal injury, less expenses of the dependents avoided by reason of the victim's death.
(8)	" Dependent's replacement service loss" means loss reasonably incurred by dependents after a victim's death in obtaining ordinary and necessary services in lieu of those the victim would have performed for their benefit if he had not suffered the fatal injury, less expenses of the dependents avoided by reason of the victim's death and not subtracted in calculating dependent's economic loss.
		Dependent's replacement service loss will be limited to a 26-week period commencing from the date of the injury and compensation shall not exceed two hundred dollars ($200.00) per week.
(9)	" Director" means the Director of the Commission appointed under G.S. 15B-3(g).
(10)	" Economic loss" means economic detriment consisting only of allowable expense, work loss, replacement services loss, and household support loss.  If criminally injurious conduct causes death, economic loss includes a dependent's economic loss and a dependent's replacement service loss. Noneconomic detriment is not economic loss, but economic loss may be caused by pain and suffering or physical impairment.
(11)	" Noneconomic detriment" means pain, suffering, inconvenience, physical impairment, or other nonpecuniary damage.
(12)	" Replacement services loss" means expenses reasonably incurred in obtaining ordinary and necessary services in lieu of those the injured person would have performed, not for income but for the benefit of himself or his family, if he had not been injured.
		Replacement service loss will be limited to a 26-week period commencing from the date of the injury, and compensation may not exceed two hundred dollars ($200.00) per week.
(12a)	" Substantial evidence" means relevant evidence that a reasonable mind might accept as adequate to support a conclusion.
(13)	" Victim" means a person who suffers personal injury or death proximately caused by criminally injurious conduct.
(14)	" Work loss" means loss of income from work that the injured person would have performed if he had not been injured and expenses reasonably incurred by him to obtain services in lieu of those he would have performed for income, reduced by any income from substitute work actually performed by him, or by income he would have earned in available appropriate substitute work that he was capable of performing but unreasonably failed to undertake.
		Compensation for work loss will be limited to 26 weeks commencing from the date of the injury, and compensation shall not exceed four hundred dollars ($400.00) per week. A claim for work loss will be paid only upon proof that the injured person was gainfully employed at the time of the criminally injurious conduct and, by physician's certificate, that the injured person was unable to work.
(15)	" Household support loss" means the loss of support that a victim would have received from the victim's spouse for the purpose of maintaining a home or residence for the victim and the victim's dependents.  A victim may be compensated fifty dollars ($50.00) per week for each dependent child.  Compensation for household support loss shall not exceed four hundred dollars ($400.00) per week and shall be limited to 26 weeks commencing from the date of the injury.  A victim may receive only one compensation for household support loss.  Household support loss is only available to an unemployed victim whose spouse is the offender who committed the criminally injurious conduct that is the basis of the victim's claim under this act."
Section 2.  G.S. 15B-8.1(b) reads as rewritten:
"(b)	All records and information given to the North Carolina Crime Victims Compensation Commission to process a claim on behalf of a crime victim shall be confidential.  Such exhibits, medical records, psychological records, counseling records, work records, criminal investigation records, criminal court case records, witness statements, telephone records, and any other records of any type or nature that are gathered for the purpose of evaluating whether to compensate an innocent victim of crime shall not be obtainable by any person except:
(1)	In the event of an appeal under the North Carolina Administrative Procedure Act, and then only to the extent necessary for review by the Office of Administrative Hearings.
(2)	In the event of a review by the General Courts of Justice, and then only to the extent necessary for review by the court.
(3)	By order of the North Carolina Crime Victims Compensation Commission granting or denying compensation to an applicant.
Upon a strict showing to the court in a separate civil or criminal action that the information being sought is not obtainable after diligent effort from any other source and the information is known to exist only in Commission records, the court may conduct an in camera review of the Commission's records to determine if the information being sought exists.  If the court determines that the information exists, the court may order the information released if:
(1)	The court finds that the release of the documents will not pose any threat to the safety and health of the victim or any other person whose identity may appear in the Commission records.
(2)	The documents are being sought for a proper purpose and good cause exists to release the documents."
Section 3.  G.S. 15B-11 reads as rewritten:
"§ 15B-11.  Grounds for denial of claim or reduction of award.
(a)	An award of compensation shall be denied if:
(1)	The claimant fails to file an application for an award within two years after the date of the criminally injurious conduct that caused the injury or death for which the claimant seeks the award;
(2)	The economic loss is incurred after one year from the date of the criminally injurious conduct that caused the injury or death for which the victim seeks the award, except in the case where the victim for whom compensation is sought was 10 years old or younger at the time the injury occurred. In that case an award of compensation will be denied if the economic loss is incurred after two years from the date of the criminally injurious conduct that caused the injury or death for which the victim seeks the award;
(3)	The criminally injurious conduct was not reported to a law enforcement officer or agency within 72 hours of its occurrence, and there was no good cause for the delay;
(4)	The award would benefit the offender or the offender's accomplice, unless a determination is made that the interests of justice require that an award be approved in a particular case;
(5)	The criminally injurious conduct occurred while the victim was confined in any State, county, or city prison, correctional, youth services, or juvenile facility, or local confinement facility, or half-way house, group home, or similar facility; or
(6)	The victim was participating in a felony or a nontraffic misdemeanor at or about the time that the victim's injury occurred.
(b)	A claim may be denied and an award of compensation may be reduced upon a finding of contributory misconduct by the claimant or a victim through whom the claimant claims.
(c)	A claim may be denied, an award of compensation may be reduced, and a claim that has already been decided may be reconsidered upon finding that the claimant or victim has not fully cooperated with appropriate law enforcement agencies with regard to the criminally injurious conduct that is the basis for the award.
(d)	After reaching a decision to approve an award of compensation, but before notifying the claimant, the Director shall require the claimant to submit current information as to collateral sources on forms prescribed by the Commission.
An award that has been approved shall nevertheless be denied or reduced to the extent that the economic loss upon which the claim is based is or will be recouped from a collateral source. If an award is reduced or a claim is denied because of the expected recoupment of all or part of the economic loss of the claimant from a collateral source, the amount of the award or the denial of the claim shall be conditioned upon the claimant's economic loss being recouped by the collateral source. If it is thereafter determined that the claimant will not receive all or part of the expected recoupment, the claim shall be reopened and an award shall be approved in an amount equal to the amount of expected recoupment that it is determined the claimant will not receive from the collateral source, subject to the limitations set forth in subsections (f)	and (g). The existence of a collateral source that would pay expenses directly related to a funeral, cremation, and burial, including transportation of a body, shall not constitute grounds for the denial or reduction of an award of compensation.
	(f)	Compensation for work loss, replacement services loss, dependent's economic loss, and dependent's replacement services loss may not exceed two hundred dollars ($200.00) per week.
(g)	Compensation payable to a victim and to all other claimants sustaining economic loss because of injury to, or the death of, that victim may not exceed thirty thousand dollars ($30,000) in the aggregate in addition to allowable funeral, cremation, and burial expenses.
(h)	The right to reconsider or reopen a claim does not affect the finality of its decision for the purpose of judicial review."
Section 4.  G.S. 143B-480.2(a) reads as rewritten:
"(a)	Only victims who have reported the following crimes are eligible for assistance under this Program: first-degree rape as defined in G.S. 14-27.2, second-degree rape as defined in G.S. 14-27.3, first-degree sexual offense as defined in G.S. 14-27.4, second-degree sexual offense as defined in G.S. 14-27.5, or attempted first-degree or second-degree rape or attempted first-degree or second-degree sexual offense as defined in G.S. 14-27.6. Assistance is limited to immediate and short-term medical expenses, ambulance services, and mental health services provided by a professional licensed or certified by the State to provide such services, not to exceed one thousand dollars ($1,000) incurred by the victim for the medical examination, medical procedures to collect evidence, or counseling treatment which follow the attack, or ambulance services from the place of the attack to a place where medical treatment is provided.  Assistance not to exceed fifty dollars ($50.00) shall be provided to victims to replace clothing that was held for evidence tests."
Section 5.  This act is effective for all claims where the criminally injurious conduct occurred on or after July 1, 1998.