Division of Victim Services, Office of the Attorney General

VICTIMS COMPENSATION

Chapter 3

  Section 1. Authority and Administration.

  (a) The Division of Victim Services shall administer the victims compensation program, W.S. 9-1-638(a)(ii);

  (b) The rules in this chapter shall comply with the Crime Victims Compensation Act, W.S. 1-40-101 through 1-40-119, and include procedures to ensure that any limitations of compensation awards are calculated in a fair and equitable manner; and

  (c) All questions, comments, requests for information regarding compensation shall be directed to the Division of Victim Services, 2301 Central Avenue, Barrett Building, 4th Floor, Cheyenne Wyo- ming 82002; Phone (307) 777-7200; Fax (307) 777-6683.

  Section 2. Definitions.

  (a) The definitions in W.S. 1-40-102(a) apply to this chapter, including:

    (i) Account means crime victims compensation account established by W.S. 1-40-114, W.S. 1-40-102(a)(i);

    (ii) A Criminal act means an act committed or attempted in this state, including an act of domestic violence, which constitutes a crime as defined by the laws of this state or an act of terrorism, as defined by 18 U.S.C. 2331 committed outside the United States, and which results in actual bodily injury or actual mental harm or death to the victim. No act involving the operation of a motor vehicle, boat or aircraft which results in injury or death constitutes a crime for the purpose of this act unless the injury or death was recklessly or intentionally inflicted through the use of he vehicle, boat or aircraft, or unless the act constitutes a violation of W.S. 31-5-233, W.S. 1-40-102(a)(iii);

    (iii) Dependent means any relative of the victim who was wholly or partially dependent upon the victim's income at the time of his injury or death and includes the child of the victim born after his death, W.S. 1-40-102(a)(iv);

    (iv) Economic loss means and includes medical and hospital expenses, loss of earnings, future loss of earnings resulting from the injury, funeral and burial expenses and loss of support to dependants of the victim to include home maintenance and child care, W.S. 1-40-102(a)(v);

    (v) Medical expense includes the cost of all medical and dental services, mental health counseling and care, dental and prosthetic devises, eyeglasses or other corrective lenses, and services rendered in accordance with any method of healing recognized by the law of this state, W.S. 1-40-102(a)(vi);

    (vi) Personal injury means actual bodily injury or actual mental harm, W.S. 1-40-102(a)(vii);

    (vi) A Relative of victim means his spouse, parent, grandparent, stepparent, child in- cluding natural born child, stepchild or adopted child, grandchild, brother or sister, W.S. 1-40-102(a)(viii);

    (vii) A Victim means:

    A person who suffers personal injury or is killed in this state as a direct result of:

      (A) A criminal act of another person;

      (B) The persons good faith and reasonable effort in attempting to prevent the commission of a criminal act, or to apprehend a person engaging in a criminal act or assisting a law enforcement officer to do so;

      (C) Assisting or attempting to assist a person against whom a crime is being perpetrated or attempted; or

      (D) A federal crime occurring in Wyoming;

      (E) A resident who is a victim of a crime occurring outside this state if:

        (i) The crime would be compensable had it occurred inside this state; and

        (ii) The crime occurred in a state which does not have a crime victim compensation program, for which the victim is eligible as eligibility is set forth in W.S. 1-40-101 through 1-40-119; or

      (F) A resident of this state who is injured or killed by an act of terrorism, as defined by 18 U.S.C. 2331, committed outside the United States, W.S. 1-40-102(a)(ix).

  (b) In addition to the definitions in W.S. 1-40-102(a), the following additional definitions apply to this chapter;

    (i) "Compensation" means monies awarded by the Division as prescribed by the Crime Victims Compensation Act and as authorized in W.S. 9-1-638;

    (ii) "Crime" means an act committed in this state which would constitute a crime as defined in W.S. 6-1-104;

    (iii) "Law enforcement agency" means any agency that is responsible for the enforce- ment of the laws or governmental administrative rules concerning a particular group; and

    (iv) "Mental health counseling and care" means the assessment, diagnosis and treatment of an individuals mental and emotional functioning required to alleviate psychological trauma resulting from a compensable crime provided by a certified or licensed practitioner of the healing arts within the scope of his license or certification.

  Section 3. Application for Compensation.

  (a) Applications for compensation may be requested from the Division or any victim service program , including domestic violence shelter programs, by phone, in person, in writing, or via the internet.

  (b) Application made by a minor, as defined by Wyoming law, shall be signed by his/her parent or legal guardian, unless Wyoming statutory provisions require otherwise. If a claim is made by a person who is incompetent, the form shall be signed by his/her guardian or such individual who is authorized to administer his/her estate.

  Section 4. Eligibility for Compensation.

  The Division shall not make an award unless it determines eligibility based on the following:

  (a) The victim suffered personal injury or death as a result of a "criminal act" under the laws of the State of Wyoming. No act involving the operation of motor vehicle, boat, or aircraft which results in injury or death constitutes a crime for the purpose of this act unless the injury or death was recklessly or intentionally inflicted through the use of the vehicle, boat, or aircraft, or unless the act constitutes a violation of W.S.31-5-233.

  (b) In determining whether a criminal act has occurred, the Division shall take into account the following sources of information:

    (i) Description of the act as related by the victim on the application form

    (ii) Any reports prepared by the appropriate law enforcement agencies;

    (iii) The law enforcement certification form prepared by law enforcement in response to a request from the Division;

    (iv) Any formal charging documents filed against the perpetrator, including the criminal complaint arrest warrant and information on any judgement and sentence or other final order entered against him;

    (v) Any other information that the Division deems to be relevant, including but not limited to, provocation, consent, participation in an illegal activity or behavior on the part of the victim which, directly or indirectly contributed to his injury or death, and the prior case history of the victim which may also include matters pertaining to the victim's medical history, and whether the victim cooperated with law enforcement authority or showed a compelling health or safety reason why they could not cooperate;

    (vi) The Division may consider, but is not bound by, the categorizing of the offense by the reporting law enforcement agency or prosecuting attorney;

    (vii) In all cases the Division shall exercise its discretion in determining whether a crime has occurred; and

    (viii) The application for compensation must be filed within I year from the date of the injury or death of the victim or within the extension of time the Division has allowed for good cause.

      (A) Good cause in determining whether a victim has satisfied the requirement to report a crime to law enforcement, the Division may consider the victims age, physical condition and psychological state, and any compelling health or safety reason that would jeopardize the well being of the victim. The Division may waive the report to law enforcement or the 1 year filing date if good cause is shown.

  (c) Cooperation with Law Enforcement

  In determining whether a victim reasonably cooperated with law enforcement the Division may consider the victims age, physical condition and psychological state and any compelling health and safety reasons that would jeopardize the well being of the victim.

    (i) Reasonable cooperation with law enforcement by the victim may include but not be limited to the following:

      (A) providing law enforcement with a true, accurate and complete statement of the circumstances that led to the crime;

      (B) participating in the investigation of the crime to assist law enforcement with the identification of a suspect;

      (C) participating in prosecution procedures including deposition and trail testi- mony as requested;

      (D) Sexual abuse victims shall be deemed to have reasonably cooperated with law enforcement if the victim undergoes a sexual assault forensic exam;

  (d) Wrongful Act. The injury to or death of a victim cannot be attributed to his or her own wrongful act.

  Section 5. Ineligible Requests for Compensation.

  Applications shall be determined to be ineligible if:

  (a) The application does not meet the requirements set out in the Wyoming Statue covering victims compensation;

  (b) Crime occurred before May 23, 1985;

  (c) The applicant suffered property loss, but no personal injury;

  Section 6. Verification Process.

  The divisions claim specialists shall conduct a review of all claims and verify all requests for financial assistance.

  (a) Verification of the crime shall require a completed certification form or law enforcement investigation report.

  (b) Verification of medical and funeral expenses. Applicant shall submit copies of all bills related to the personal injury or death. In case of a deceased victim a copy of the death certificate is required.

  (c) Verification of Loss of Earnings. An employer's certification form shall be mailed to the applicant's employer. In some cases verification may be done by phone. For self-employed victims or self employed defendants, IRS quarterly or yearly reports shall be submitted.

  (d) Verification of Future Loss of Earnings. Along with the employer's certification, a medical certification form is required. If the injury has caused a disability this shall be verified by a physician. The physician shall estimate when the applicant will again be able to work.

  Section 7. Confidentiality.

  Information obtained from any agency or individual pursuant to the Crime Victims Compensa- tion Act, W.S. 1-40-101 through 1-40-119 shall not be disclosed for any purpose except as necessary to the administration of this act.

  Section 8. Award Limits.

  (a) No award shall exceed the maximum amount approved by the Wyoming legislature and stated in the victims compensation statue.

  (b) Medical Expenses. Medical expenses include those incurred from the reasonable and nec- essary costs of all medical and dental services, dental and prosthetic devices, services rendered by any method of healing recognized by the law of this state, and mental health counseling and care.

    (i) Compensable medical expenses include:

      (A) those incurred from the date of the injury to the decision date;

      (B) in the event the application is considered more than one year after the date of the crime, compensable medical expenses shall be limited to those medical expenses incurred one year after the crime date;

      (C) no compensation shall be paid for future medical expenses.

  (c) Mental health counseling and care means the assessment, diagnosis and treatment of an individual's mental and emotional functioning that is required to alleviate psychological trauma result- ing from compensable crime.

    (i) Mental health counseling shall be provided by a certified or licensed practitioner of the healing arts acting within the scope of his or her license or certificate.

    (ii) Counseling services provided to an eligible victim by a counselor whose position is funded, in whole or in part, or whose position is used as match to a federal Victims of Crime Act funds, shall not be eligible for compensation payment.

    (iii) Compensation for family counseling shall be payable only for sessions where the focus of the session is to assist the victim in recovery from a compensable crime.

  (d) Loss of earnings, loss of future earnings, and loss of dependents support. In order to be compensated for loss of earnings or loss of support the victim must have been employed at the time of the crime that caused the death or personal injury.

    (i) If the victim was self employed at the time of injury or death, the loss of actual earnings shall be determined by the income reported on the previous year's federal income tax return or the current year's income based on current financial records or any other documentation that enables the Division to determine the income for the six months immediately proceeding the date of the injury. The loss of earnings is computed at current federal minimum wage.

    (ii) If the sole employment of the victim at the time of the injury or death was limited to performing duties and responsibilities of a homemaker, the award shall be determined by documenta- tion of actual expenses for cost of services or hours worked at federal minimum wage, whichever is less.

    (iii) All loss of earning and support is computed at the federal minimum wage times the number of scheduled hours worked or lost.

    (iii) Loss of support shall be awarded to the dependents of a homicide or disabled victims and verified and computed in the same manner as loss of earnings.

  (e) Funeral/ Burial Expenses. An award for reasonable funeral and burial expenses shall not exceed the maximum limit set forth in the Wyoming Statue addressing crime victims compensation.

  (f) Clothing and Bedding. A reasonable replacement value for clothing and bedding taken for evidentiary purposes.

  (g) Collateral Sources. In determining the amount of an award to an applicant, the Division shall consider the amount of any payments received or to be received from a collateral source.

    (i) The term collateral source includes but is not limited to:

      (A) amounts received from the offender, including restitution;

      (B) proceeds of any contract of insurance payable to the Victim Services Divi- sion a contract providing hospital and other health care services or benefits;

      (C) any governmental entity or government program.

  Section 9. Emergency Awards.

  The Division may grant an emergency award, not to exceed the amount specified in Wyoming Statues, for loss of income, emergency treatment, or for funeral or burial expenses, if it is determined an undue hardship will result to the applicant if immediate payment is not made, and the probability exists an award equal to or greater than the emergency award will be made through the usual compen- sation process.

  (a) An emergency application form shall be filed with adequate information on which to base a determination an emergency award is appropriate.

  (b) Any emergency award shall be deducted from the final amount of compensation awarded the victim.

  (c) A victim shall not receive an emergency award pursuant to this section for more than two separate incidents of crime victimization, nor receive more than one award within a period of 24 con- secutive months.

  (d) A decision denying or reducing any emergency award shall not be appealable.

  Section 10. Residential Homicide Scene Clean Up.

  (a) Cleaning a residential homicide scene means to remove, or attempt to remove, from the crime scene blood, dirt, stains, or other debris caused by the crime or the processing of the crime scene. The Division shall compensate an eligible claimant for a reasonable out-of-pocket cost of cleaning supplies, equipment rental, labor, and the replacement value of property held for evidentiary purposes, not to exceed amounts established by the division.

  Section 11. Reductions and Disqualification.

  In reducing or disqualifying compensation applications the Division may consider but is not limited to the following:

  (a) Whether the victim attempted to withdraw from the incident;

  (b) Comparable or reasonable force on the part of the suspect in response to the actions of the victim;

  (c) Comparable size and strength of the victim and suspect;

  (d) Retaliatory action for a prior physical assault or injury committed by the victim against the perpetrator, and the victim could have reasonably foreseen the likelihood of retaliations;

  (e) Victim contributed to or was involved in the events leading to the crime;

  (f) When the victim was a passenger of a drunk driver the Division shall consider whether the victim could have reasonably known the intoxication level of the driver, the drivers behavior or judge- ment appeared impaired or the victim encouraged or discouraged the driver from driving;

  (g) Mutual combatant situations.

  Section 12. Restitution.

  (a) Any court order of restitution paid to the victim or applicant shall be deducted from the compensation award.

  (b) After an order for compensation has been entered by the Division, a copy of the Defendant Reimbursement form shall be sent to the prosecutor or other official handling the case so restitution maybe ordered by the judge to reimburse the crime victims account.

  Section 13. Surcharge.

  The Division shall compile a summary of surcharge amounts and the county of origin quarterly.

  Section 14. Profits from Crime.

  (a) If the Division or its staff has knowledge of any movies, books, magazines, radio or televi- sion presentation or any other means listed in W. S. 1-40-112(d) by which a convicted person or his representative profits from this crime, the Division shall notify the Attorney General.

  (b) The Attorney General shall initiate all litigation necessary to accomplish the forfeitures provided by W.S. 1-40-112(d).

  Section 15. Appeals.

  The Director shall determine if reconsideration of a decision or a hearing is necessary. The claimant may also request reconsideration of a decision or may request a hearing.

  (a) Review:

    (i) If the claimant is dissatisfied with the decision of the compensation award, denial of award, or amount of award, with the exception of an emergency award, the claimant may request reconsideration within 30 days of the date of the written notification of the decision to make or deny an award. The request shall be in writing, shall state the reasons why the claimant disagrees with the decision, and provide additional information for review. If the claimant fails to request reconsideration of the decision by the Director within thirty days, the decision of the Division then becomes final.

    (ii) If the claimant does request reconsideration and is dissatisfied with the Director's decision, the claimant may request an appeals hearing. There shall be a request made within 30 days of the hearing to the division director.

    (iii) The Director may appoint an appeals committee to conduct a reconsideration, pre-hearing conferences, hearing conferences, and any other hearings necessary under this act.

    (iv) Interested persons may be notified within 10 days prior to the date of the hearing. The notice shall include:

      (A) time, place, and nature of the proceedings.

    (vi) In any proceeding under this act the burden of proof is upon the claimant to prove by a preponderance of the evidence the requirements of the act have been met.

    (vi) Any decision made by the appeals committee shall be the final decision.

  Section 16. Insufficient funds.

  In order to assure the solvency of the fund, the Director shall award available funds for emer- gency grants, loss of wages, and loss of support. Other allowable benefits shall be adjusted and awarded for any amount not to exceed the anticipated available funds.