[Cite as In re Becraft, 2010-Ohio-6718.]

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: RICHARD E. BECRAFT 

RICHARD E. BECRAFT 

 Applicant 

 

 Case No. V2009-40862 

Commissioners: 

Elizabeth Luper Schuster, Presiding 

Gregory P. Barwell 

Randi M. Ostry 

COMMISSIONER PANEL ORDER OF A THREE-

 {1}On June 19, 2009, the applicant, Richard E. Becraft, filed a compensation 

application as the result of an assault which occurred on May 26, 2009. On September 

9, 2009, the Attorney General issued a finding of fact and decision determining the 

applicant met all jurisdictional requirements necessary to receive an award of 

reparations and was granted an award in the amount of $2,403.59 of which $1,793.80 

represented reimbursement of medical expenses, $17.29 represented reimbursement of 

pharmacy expenses, and $592.50 represented attorney fees incurred for obtaining a 

civil protection order. The applicant’s claim for reimbursement of medical bills at Miami 

Valley Hospital and Springfield Regional Center was denied because the Attorney 

General asserted the applicant could receive reimbursement for these expenses from 

the Hospital Care Assurance Program (HCAP). Finally, the applicant’s claim for work 

loss was denied since this loss could not be verified. 

 {2}On October 5, 2009, the applicant submitted a request for reconsideration 

asserting he did experience work loss as the result of the injuries he sustained at the 

time of the criminally injurious conduct. On December 1, 2009, the Attorney General 
Case No. V2009-40862 - 2 - ORDER

rendered a Final Decision finding no reason to modify the initial decision with respect to 

work loss. 

The Attorney General contended due to inconsistencies in the applicant’s work history 

his 2009 income tax return was necessary before work loss could be calculated. On 

December 18, 2009, the applicant filed a notice of appeal from the December 1, 2009 

Final Decision of the Attorney General. Hence, a hearing was held before this panel of 

commissioners on March 17, 2010 at 11:00 A.M. 

 {3}The applicant, Richard Becraft, and his attorney, Robert Vaughn, appeared 

at the hearing, while the state of Ohio was represented by Assistant Attorneys General 

Matthew Karam and Matthew Hellman. 

 {4}The sole issue in this case is the amount of work loss suffered by the 

applicant as a result of the injuries he sustained at the time of the criminally injurious 

conduct. 

 {5}The applicant, Richard Becraft, was called to testify. He stated he was self 

employed as a commercial contractor and in the past few years, however, due to the 

economic downturn, his business slowed. As a result he has had to transform his 

business into one that provides residential maintenance and tree cutting. 

 {6}Mr. Becraft described the assault, the injuries he sustained, and the long 

term effect those injuries had on his ability to engage in gainful employment. In fact, 

the applicant stated he has been unable to work since the date of the criminal assault, 

May 26, 2009. Even though the applicant has been unable to work, his business has 

incurred ongoing expenses. He related he has a bank note which needs to be paid in 

the amount of $4,700.00, for business equipment. Furthermore, he stated although his 

2009 tax return has not been filed, he is confident that he will experience a financial 

loss, due to the fact he was unable to work after May 29, 2009. 

 {7}Upon cross-examination, Mr. Becraft stated he has a monthly house 

payment and living expenses. He also has ongoing contracts with Speedway and 

Super America. Whereupon, the testimony of Mr. Becraft was concluded. 
Case No. V2009-40862 - 3 - ORDER

 {8}The Attorney General called William Fulcher, Assistant Section Chief for the 

Crime Victims Unit of the Attorney General’s Office, to testify. Mr. Fulcher testified 

concerning how work loss is calculated when income generated involves self-employed 

individuals. First, it is desirable to obtain the tax return of the victim for the year of the 

injury to verify that the applicant is in the same business. Also, the tax return is the 

best indication of what the applicant was earning at the time of his injury. In the case at 

bar, the 2009 tax return had not yet been filed, accordingly, the last verified tax return 

was 2007, which indicated the applicant’s business suffered a loss. 

 {9}The Attorney General introduced State’s Exhibit A, a memorandum prepared 

by Mr. Fulcher on March 2, 2010. Self employment income was calculated by adding 

Line 31 of the applicant’s income tax return(net profit or loss) to Line 13 (depreciation), 

and Line 9 (car and truck expenses). In 2005 the applicant’s net profit was 

$161,541.00, in 2006 it was $74,194.00, in 2007 the applicant suffered a net loss of 

$8,647.00; and, in 2008 the applicant had a net profit of $13,044.00. Mr. Fulcher 

testified there was nothing consistent about the applicant’s past years of employment 

which would give a good indication what the applicant’s income would have been in 

2009. However, the Attorney General chose years 2007 and 2008 to calculate the 

applicant’s work loss for 2009. Using the formula above: (Line 31 + depreciation + car 

and truck expenses = net income) the applicant had a net income of $1,763.00 in 2007 

and $18,918.00 in 2008 for an average net income of $10,340.50. Those years were 

chosen because gross sales in these years were consistent even though profits were 

not. The years 2005 and 2006 were not chosen because gross sales were much 

higher in those years. Finally, Mr. Fulcher stated that 2005 and 2006 incomes were not 

used because these years were prior to the economic downturn which effected the 

construction business. Based on these calculations the applicant incurred work loss in 

2009 in the amount of $3,969.81. 
Case No. V2009-40862 - 4 - ORDER

 {10}The witness then presented State’s Exhibit B, a work loss exhibit reflecting 

salary information for the applicant. This exhibit shows the work product of Mr. Fulcher 

in calculating the applicant’s work loss of $3,969.81. The direct examination of the 

witness was concluded. 

 {11}Upon cross-examination, Mr. Fulcher stated that two, three, or four years 

can be used as an average if the earnings are consistent. However, the best evidence 

is to look at the year of the injury. Mr. Fulcher admitted there is no written policy to 

determine the number of years used to determine an income average. The decision is 

based on the availability of the evidence and his discretion based upon his years of 

experience. He did concede that this policy could be considered arbitrary. 

Whereupon, the witness’ testimony was concluded. 

 {12}In closing, the applicant stated that due to the nature of the construction 

business, a variety of factors may influence the amount of money an applicant makes 

depending on the time of the injury. While, work loss based on the tax return on the 

year of the injury might provide some indication of the applicant’s earnings for that year, 

it would be more equitable to take an average of his earnings in prior years. The 

applicant contends a true reflection of his average earnings should be based upon as 

many years as are available. In this case 2005, 2006, 2007, and 2008. The applicant 

asserts that the Attorney General should base its calculation on its past practices of 

looking back at least three years and determining an average and then calculating the 

work loss in the year of the injury based upon that average. 

 {13}The Attorney General in closing stated that a calculation of work loss 

should be based upon the language of the statute. The Attorney General stated the 

three year method was not used in In re Groll, V2007-90374tc, 2007-Ohio-6287 and In 

re Lemieux, V2004-60920tc. Accordingly, there is not uniform rule applied to everyone. 

The best way to calculate work loss for a self-employed individual is to look at the tax 

returns of the year of the injury. Without that return, the next best indicator would be 

the applicant’s earnings from 2007 and 2008. To extend back to 2005 and 2006 would 
Case No. V2009-40862 - 5 - ORDER

not give an accurate reflection of the economic situation in 2009. Whereupon, the 

hearing was concluded. 

 {14}R.C. 2743.51(G) states: 

“(G) ‘Work loss’ means loss of income from work that the injured person would 

have performed if the person had not been injured and expenses reasonably 

incurred by the person to obtain services in lieu of those the person would have 

performed for income, reduced by any income from substitute work actually 

performed by the person, or by income the person would have earned in 

available appropriate substitute work that the person was capable of performing 

but unreasonably failed to undertake.” 

 {15}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.” 

 {16}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.” 

 {17}From review of the case file and with full and careful consideration given to 

the testimony presented and the arguments advanced by counsel, we find the applicant 

incurred work loss. However, the difficult issue which we must address is what method 

will result in a fair and just award to the applicant. The applicant asserts we should rely 

on the past practice of the Attorney General and use three or possibly four prior years of 

the applicant’s self-employment to determine a yearly income average, then use that 

average to calculate his earnings for 2009. On the other hand, the Attorney General 

directs us to only consider the income the applicant earned in 2009, prior to his injury. 

If that information is not available, as it is not in this case, then look to the last two years 

prior to his injury. 
Case No. V2009-40862 - 6 - ORDER

 {18}Before the proper method of calculation is determined in this case, it is 

important to review case precedent. In In re Caminiti (1984), 17 Ohio Misc. 2d 9, a 

judge of the court of claims reasoned that while the language of the statute seemed to 

indicate that a calculation of work loss should be based on the victim’s earnings at the 

time he was injured, such calculation would provide an unjust result for an individual so 

seriously injured that he would never be able to enter the work force again. In Caminiti

the victim’s work history was evaluated since at the time of his injury he was receiving 

temporary total disability benefits. The judge relied on In re Walker, V81-55111tc 

(7-29-83), a dependent’s economic loss case where a panel of commissioners 

averaged the decedent’s income for five years to determine a proper basis for 

calculating dependent’s economic loss. Accordingly, the judge in Caminiti averaged 

the victim’s hourly wage earned from his last five jobs to reach a fair basis for 

calculating the victim’s future work loss. 

 {19}A panel of commissioners in In re Zenni (1992), 63 Ohio Misc. 2d 68, dealt 

with the appropriate period to calculate the decedent’s work loss when the decedent 

entered into a new unsuccessful business venture prior to his death. Decedent had 

worked for eight years in the Hamilton County Clerk of Courts Office, when he opened a 

restaurant. The restaurant failed after two years and the decedent was in the process 

of receiving his real estate license when he was killed. In coming to a conclusion 

concerning the calculation of dependent’s economic loss, the panel stated: 

 {20}“That the decedent contributed things of economic value is implicit in the 

fact that he acquired investment real estate during his years with the clerk’s office of 

sufficient value to generate income during later years when he was unemployed. This 

contribution is in addition to the income the decedent earned while working at the clerk’s 

office. Thus, even after the failure of his business, the decedent’s work ethic and 

employment history continued to provide economic contributions to the household. 

Furthermore, the foregoing definition contains no language that would limit dependents’ 
Case No. V2009-40862 - 7 - ORDER

economic loss to only those contributions of economic value made within the two years 

immediately preceding the victim’s death. 

 {21}“These factors, upon calculation, reveal whether the dependents of the 

decedent will suffer economic loss. Whether that economic loss should be based upon 

a two-year or five-year work loss history is dependent upon the facts of the case. In 

this case, it is reasonable to reach back five years to obtain an average income upon 

which to calculate dependents’ economic loss. In fact, it would be unfair to discount 

the decedent’s employment history with the clerk of courts because the income he 

earned there was the basis for his later career change. In addition, the decedent could 

have returned to that employment, as evidenced by the applicant’s testimony.” Id. at 

70-71. 

 {22}In In re Dotson a panel of commissioners dealt with the issue of work loss 

when the applicant left his $22,000 a year job as a stock broker with A.E.I. Group Inc. to 

work with OMNI Financial Management to restructure an inactive intrastate brokerage 

house, Columbia Securities. The applicant received no salary for this position, 

however, when Columbia became active he would become president and general 

manager and earn a projected salary of between $100,000.00 to $150,000.00 per year. 

Before this goal could be accomplished the applicant became a victim of criminally 

injurious conduct. During his period of disability he earned $12,000.00 for a four-month 

period in 1989 with Dublin Securities and $25,000.00 in commission for a three-month 

period in 1990 with the same company. The applicant’s disability period encompassed 

December 28, 1988 through December 20, 1989. Accordingly, the panel averaged the 

applicant’s earnings prior to and after his injury to calculate a reasonable work loss for 

the disability period in question. 

 {23}A panel of commissioners in In re Jeffcut, V2002-51451tc (4-21-04) 

addressed the correct method of calculating work loss in a long-standing bridal 

partnership business. While the business remained open during the applicant’s 

disability period, the panel relied on the applicant’s accountant to provide the applicant’s 
Case No. V2009-40862 - 8 - ORDER

actual sales during the disability period as opposed to the projected sales during the 

same period. These figures were considered reasonable based on the age and size of 

the company in question. The panel focused on a three-year disability period 

calculating the difference between actual sales and projected sales and reducing that 

amount by the cost of merchandise. The three year loss was divided in half since the 

applicant had another partner running the business in his absence. This method 

provided an accurate reflection of the applicant’s work loss in a long-term, relatively 

steady income-producing business. 

 {24}A panel of commissioners was confronted with work loss sustained in a 

long-standing tree service business in In re Groll, V2007-90374tc (10-26-07). In that 

case, the applicant was a victim of criminally injurious conduct in 2006. In order to 

fairly calculate work loss the panel reviewed the applicant’s net profits for four years 

prior to his injury and took into consideration that he had depreciated a truck purchase 

he made in 2005 in one year rather than his prior business practice of depreciating such 

purchases over a five-year period. Accordingly, the panel calculated the applicant’s 

average net profit over a four-year period and a revised net profit for 2006, the year of 

his disability, recalculating his depreciation of his truck on a five-year basis. The 

revised profit for 2006 was subtracted from the four-year net average profit to result in 

the applicant’s work loss for 2006. 

 {25}In In re Austin, V2006-21182tc (3-26-08), a panel of commissioners was 

required to calculate work loss in a start up business. The panel adopted the Attorney 

General’s method of calculation by taking the net profits from Line 31 of the applicant’s 

Schedule C tax return and adding vehicle expenses. However, the panel felt a 3.5 

percent yearly increase in earnings was appropriate. The panel rejected the reasoning 

set forth in In re Jeffcut because that applicant’s business was not long standing with an 

extensive business history. 
Case No. V2009-40862 - 9 - ORDER

 {26}Finally, a panel decided the case of In re Lemieux, V2004-60920tc 

(2-13-09). That case determined that work loss could be established based upon 

affidavits the applicant’s testimony, and tax returns, without a 1099 attached. 

 {27}In the case at bar, the Attorney General urges us to consider a factor not 

addressed in prior cases: economic downturn. Should the economic weakness in the 

applicant’s profession effect the calculation of work loss? In Zenni and Dotson, the 

venture into different fields of work did not negatively affect the calculation of an award 

for work loss since prior or post earnings were considered to obtain a fair work loss 

amount. Businesses with steady growth or extensive history provide little insight into 

the case at bar. See Jeffcut and Austin. In re Groll provides limited insight into the 

case at bar. In Groll it was recognized that changes in depreciation schedules should 

be taken into consideration when calculating work loss. 

 {28}R.C. 2743.51(G) in pertinent part states: “‘Work loss’ means loss of income 

from work that the injured person would have performed if the person had not been 

injured.” The plain language of the statute indicates that the current earning capacity of 

the applicant at the time he was injured is the best evidence of his work loss. In the 

case at bar, the applicant’s 2009 income tax return is not available. Therefore, we 

believe the best evidence of the applicant’s work loss for 2009 is the Line 31 net profit 

from Schedule C plus depreciation, ($13,044.00 + $5,874.00 = $18,918.00). To 

include the tax return from 2007 unfairly penalizes the applicant while the inclusion of 

tax years 2005 and 2006 does not reflect the economic reality of 2009, the year of his 

injury. 

 {29}It should be noted that all claims should be decided on a case-by-case 

basis to afford each applicant a just work loss award depending on their unique and 

individual circumstances. Death claims and claims involving individuals who are totally 

disabled are more appropriate for income averaging over a number of years in 

conformity with case precedent. 
Case No. V2009-40862 - 10 - ORDER

 {30}Therefore, the December 1, 2009 decision of the Attorney General is 

reversed with respect to the issue of work loss. 

 IT IS THEREFORE ORDERED THAT 

 {31}1) The State’s Exhibits A and B are admitted into evidence; 

 {32}2) The December 1, 2009 decision of the Attorney General with respect to 

work loss is REVERSED and judgment is rendered in favor of the applicant; 

 {33}3) This claim is remanded to the Attorney General for calculation and 

payment of work loss in accordance with this decision; 

 {34}4) This order is entered without prejudice to the applicant’s right to file a 

supplemental compensation application, within five years of this order, pursuant to R.C. 

2743.68; 

 {35}5) Costs are assumed by the court of claims victims of crime fund.

 _______________________________________ 

 ELIZABETH LUPER SCHUSTER 

 Presiding Commissioner

 _______________________________________ 

 GREGORY P. BARWELL 

 Commissioner

 _______________________________________ 

 RANDI M. OSTRY 

 Commissioner 

ID #I:\Victim Decisions to SC Reporter\Panel Decisions\2010\Sept - Nov 2010\V2009-40862.wpd\DRB-tad 

 A copy of the foregoing was personally served upon the Attorney General and 

sent by regular mail to Clark County Prosecuting Attorney and to: 
Case No. V2009-40862 - 11 - ORDER

Filed 11-19-10 

Jr. Vol. 2277, Pgs. 93-103 

Sent to S.C. Reporter 10-11-11