Gerald Allen Burford, Jr.



Claimant appeared in person and by counsel, David R. Karr, Jr.

Benjamin F. Yancey, III, Assistant Attorney General, for the State of West Virginia.

An application of the claimant, Gerald Allen Burford, Jr., for an award under the West Virginia Crime Victims Compensation Act, was filed December 10, 2002. The report of the Claim Investigator, filed April 10, 2003, recommended that no award be granted, to which the claimant filed a response in disagreement. An Order was issued on October 30, 2003, upholding the Investigator's recommendation and denying the claim, in response to which the claimant's request for hearing was filed November 21, 2003. This matter came on for hearing June 25, 2004, the claimant appearing in person and by counsel, David R. Karr, Jr., and the State of West Virginia by counsel, Benjamin F. Yancey, III, Assistant Attorney General.
On September 13, 2002, the 37-year-old claimant was the victim of criminally injurious conduct in Dunbar, Kanawha County. The claimant was on his front porch preparing to enter the front door when he was shoved from behind by an unknown assailant who then fled.
As a result of the attack, the claimant suffered injuries to his right arm, which had been forced through the glass window next to the door. His unreimbursed medical expenses totaled over $14,000.00.
This Court's initial denial of an award was based on the fact that the incident was not timely reported to law enforcement officials. W.Va. Code §14-2A-14(b) provides that an award of compensation may not be approved "if the criminally injurious conduct upon which the claim is based was not reported to a law-enforcement officer or agency within seventy-two hours after the occurrence of the conduct, unless it is determined that good cause existed for the failure to report the conduct within the seventy-two hour period."
At the hearing, the claimant testified that immediately after the assault, he contacted his neighbor, John Prowse, and asked him to drive him to the hospital. Because of the excessive amount of bleeding, the claimant did not want to wait for an ambulance. Upon arriving at the emergency room of Thomas Memorial Hospital, the claimant explained that he had been pushed through a glass door. Mr. Burford stated that he did not remember much of what happened at the hospital nor much of what happened after he was taken home from the hospital.
Also testifying at the hearing was the claimant's wife, Gladys M. Burford, who stated that she and her husband had been celebrating their marriage the evening of the incident. She went out for a pack of cigarettes and returned home to find the window broken and a lot of blood. She could not tell what had happened and was afraid to go inside their home, so she ran to the nearest telephone and called her husband's mother. Mrs. Burford stated that it was his mother's boyfriend who told her that her husband was in the hospital. When she arrived at the hospital, one of the doctors told her that her husband had been unlocking the door when someone shoved him through the window and that his arm went through the glass. The next morning her husband was released. Mrs. Burford stated that because of a misunderstanding in how Mr. Burford's medicine was to be administered, he was "very drugged up" on medication and remained so until the next time he went to see the doctor, which was two or three days later. The doctor took him off all of the medication at that point and told her to give him Tylenol. She testified that the receptionist at the doctor's office gave her the number for the Crime Victim Fund and that it was after contacting them that she learned she needed a police report. It was only after contacting the police that Mrs. Burford learned that no police report had been made. She stated that she had seen a police officer at the hospital on the night of the incident and had just assumed that someone had contacted the police. Mrs. Burford was under the belief that her husband had been taken to the hospital in an ambulance and that someone had been in touch with the police prior to her arrival at the hospital. Later she learned that it was in fact a neighbor that had rushed him to the hospital. It was only upon contacting the police some four or five days after the incident that she and her husband learned that there was no police report. At that time they gave their statements so that a police report could be made available for their crime victim claim.
In this claim, the Claim Investigator's finding was that the claimant had not reported to a law- enforcement officer or agency within seventy-two hours after the occurrence of the conduct. The original Order upheld the Claim Investigator's finding, disallowing the claim. Thus it became the claimant's burden to prove by a preponderance of the evidence that he did in fact have good cause for the failure to report the conduct within the seventy-two hour period.
Generally speaking, determining what constitutes "good cause" is in the sound discretion of the trial court. Lewis v. Henry
, 184 W.Va. 323, 400; S.E.2d 567 (1990); State ex rel. Shorter v. Hey, 170 W.Va. 249; 294 S.E.2d 51 (1981). Exceptions, or perhaps clarifications, can be found when our legislature makes specific provisions of what might constitute good cause in certain situations, such as found in W.Va. Code §62-3-1 or Rule 60(b) of the West Virginia Rules of Civil Procedure.
The Court is also confronted with a situation where the Claim Investigator believed that Mr. Burford was the victim of criminally injurious conduct, however, the Investigator further found that Mr. Burford's claim met the criteria set forth in W.Va. Code §14-2A-3(c), but for the fact that the victim did not report the incident within 72 hours, as required by W.Va. Code §14-2A-14(b). Claimant's counsel, Mr. Karr, ably points out, however, that this section of the Code also provides that the time requirement may exceed the maximum time allowed where it is "determined that good cause existed for the failure to report the conduct within the seventy-two hour period."
Under the facts of this particular case, evidence was presented, as previously discussed, that Mr. Burford had to be driven to the hospital by his neighbor. Due to Mr. Burford's extensive bleeding, it was believed that there wasn't time to wait for an ambulance. Gladys Burford, newly married to her husband, arrived at their home shortly after this, finding broken glass "and a lot of blood" on the front porch of their mobile home. One can easily imagine the state of mind of both Mr. and Mrs. Burford after the incident that evening.
Additionally, the Court has Mrs. Burford's testimony that she saw a police officer in the emergency room area during the time her husband was being treated. She presumed that the officer was there to investigate the incident.
After his discharge, there was a misunderstanding by Mrs. Burford concerning the administration of her husband's prescription medication, resulting in his diminished mental capacity for several days until that was corrected, resulting in a further delay in reporting.
In the light of the evidence put forth by the claimant, the Court is of the opinion that the claimant has met his burden of proof. The evidence adduced at the hearing of the matter establishes that the claimant had good cause for not reporting the criminally injurious conduct within seventy-two hours of its occurrence.
The Court is compelled by the evidence to reverse its previous ruling and find that good cause did in fact exist for the failure to timely report the incident. An award is therefore granted for the claimant's unreimbursed medical expenses in the sum of $14,815.94 as set forth in the Claim Investigator's memorandum of July 20, 2004. Should the claimant later submit evidence of any additional unreimbursed allowable expenses relating to this incident, they will be reviewed by the Court at that time.

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