|IN RE: TJR||)||DOCKET NO. 99 C0080|
|CLAIM NO. VH-97072||)||DECISION AND ORDER|
- Beneficiary, by
- Law Offices of Lembhard G. Howell, P.S., per
- Lembhard G. Howell and Mark E. Koontz
- Department of Labor and Industries, by
- The Office of the Attorney General, per
- James S. Kallmer, Assistant
The beneficiary filed an appeal that was received at the Board of Industrial Insurance Appeals on October 8, 1999. The appeal is from an order of the Department of Labor and Industries dated June 24, 1999. The Department order was communicated on June 28, 1999, and the appeal was mailed with proper postage and address on September 25, 1999. The June 24, 1999 order rejected the crime victim compensation claim on grounds that there was not sufficient evidence that a felony or gross misdemeanor crime occurred. REVERSED AND REMANDED.
PROCEDURAL AND EVIDENTIARY MATTERS
Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision on a timely Petition for Review filed by the Department of Labor and Industries to a Proposed Decision and Order issued on August 4, 2000, in which the order of the Department dated June 24, 1999, was reversed and remanded to the Department with directions to allow the claim for crime victim compensation.
The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed. We affirm the rulings. 
The beneficiary is the widow of TJR. Acting on her own behalf and that of minor children of TJR, she filed a crime victim compensation claim. The Department of Labor and Industries denied the claim. The issue in this appeal is whether the beneficiary has met her burden of proof to establish that TJR's death was due to a criminal act. We hold that she has met that burden and the claim should be allowed.
TJR sustained stab wounds, including a fatal stab wound to the chest with "incision of right ventricle of heart" on February 17 or 18, 1999. Exhibit No. 2, King County Medical Examiner AUTOPSY REPORT, PATHOLOGICAL DIAGNOSES. Under the section of the report entitled "OPINION", Dr. Richard C. Harruff, Associate Medical Examiner, and Dr. Donald T. Reay, Chief Medical Examiner, indicated "The manner of death is homicide." Exhibit No. 2. Neither Dr. Harruff nor Dr. Reay testified at hearing. Their opinion is admitted by way of Exhibit No. 2.
The only testimony provided at hearing was that of the beneficiary and Officer Russ Weklych, an investigating officer assigned to the Seattle Police Homicide Unit. The beneficiary did not provide any testimony relevant to the determination of whether a crime had been committed. She only testified regarding her marriage to TJR and their children, and she presented TJR's Certificate of Death, Exhibit No. 1.
Officer Weklych testified that he interviewed Donald Peoples, who he knew to have stabbed TJR in the chest. Officer Weklych testified that he did not arrive at the scene until several hours after the incident. He testified that Mr. Peoples "did suffer injuries, and I believe they were photographed and documented." 5/30/00 Tr. at 13. Officer Weklych testified that he did not observe that Mr. Peoples had injuries when he first saw Mr. Peoples on February 18, 1999, but that later at the homicide office, Officer Weklych saw that Mr. Peoples "had a cut on his tongue and some swelling to his lip." 5/30/00 Tr. at 15. 
We emphasize that our account thus far fully summarizes the whole of the evidence presented at hearing regarding the cause and circumstance of TJR's death, that is: (a) TJR suffered stab wounds and died as a result of a stab wound to the heart; (b) the medical examiners characterized the death as a "homicide"; and, (c) the alleged individual who stabbed TJR is Mr. Peoples, who was observed later by Officer Weklych, but not necessarily upon first observation, to have a cut on his tongue and a swollen lip. If the Department had any more information than this when making its decision to deny the crime victim claim, such information was not presented at hearing.
The Department contends that, although the medical examiners characterized the manner of death as "homicide," that leaves open the possibility that TJR's death was not the result of a criminal act.
Homicide is the killing of a human being by the act, procurement, or omission of another, death occurring at any time, and is either (1) murder, (2) homicide by abuse, (3) manslaughter, (4) excusable homicide, or (5) justifiable homicide.
RCW 9A.32.010. Excusable homicide or justifiable homicide, for instance, are not crimes. The Department argues that Mr. Peoples' injuries suggest self-defense, rather than a criminal act, occurred.
In an appeal of denial of benefits under the Crime Victims Compensation Act, the claimant or beneficiaries have the burden of presenting a prima facie case. Once evidence is offered to rebut the prima facie case, the burden falls on the claimant or beneficiaries to prove the claim by a preponderance of the evidence. Stafford v. Department of Labor & Indus., 33 Wn. App. 231, 234 (1982). A prerequisite to receipt of benefits under the Act is that the victim was injured or died as a result of a "criminal act." RCW 7.68.070.
In addition to the requirement that injury or death be the result of a criminal act, RCW 7.68.070(3) imposes certain limitations upon the right to receive benefits under the Act. Until  1996, RCW 7.68.070(3)(a) raised a statutory bar to recovery of benefits where injury or death was "the result of consent, provocation, or incitement by the victim." Stafford. RCW 7.68.070(3)(b) still raises a statutory bar to benefits where the injury or death was sustained "while the crime victim was engaged in the attempt to commit, or the commission of, a felony."
By way of Laws of 1996, ch. 122, § 5 (Substitute House Bill 2358), the Legislature amended RCW 7.68.070(3)(a) such that consent, provocation, or incitement by the victim no longer preclude benefits when the injury results in death of the victim. Now, benefits are precluded by RCW 7.68.070(3)(a) when the injury for which benefits are sought, was the "result of consent, provocation, or incitement by the victim, unless an injury resulting from a criminal act caused the death of the victim." (Emphasis added.) The bar in RCW 7.68.070(3)(b) (pertaining to the victim engaging in attempts to commit or commission of a felony) was not modified, and that statutory bar continues to apply to death as well as non-death cases.
Considering RCW 7.68.070(3)(a), prior to the 1996 amendment, the Stafford court, 33 Wn. App. at 236, noted there was no express statutory statement as to whether the Department or the claimant has the burden of proving the existence or non-existence of the limitations contained in that provision. After examination of analogous limitations on general entitlement to benefits in workers' compensation law, the court held:
Similarly, the limitation in RCW 7.68.070(3)(a) also raises a statutory bar to recovery. And unless the claimant can prove the absence of consent, provocation or incitement when the facts in evidence raise an issue as to one of these elements, the claimant has not demonstrated his claim by strict proof.
Stafford, at 237. (Emphasis added.) This holding should likewise be considered applicable to the bar in RCW 7.68.070(3)(b).
We noted, from the above holding in Stafford, the language "'when the facts in evidence raise an issue as to one of these elements." We have also indicated our belief that such holding  from Stafford applies equally to the question of whether the injury was sustained while the victim was engaged in an attempt to commit, or commission of, a felony within the meaning of RCW 7.68.070(3)(b). In the present case, we must first determine, then, whether the beneficiary presented sufficient evidence which, if not rebutted, would establish that, more likely than not, TJR's death was due to a crime. Assuming the answer to be "yes," we must then determine whether the facts in evidence further "raise an issue" as to whether TJR was himself engaged in an attempt to commit, or the commission of, a felony. If we were to determine that the facts raise such an issue, then we would turn to the question of whether the beneficiary proved by a preponderance of the evidence that such a bar did not exist, as required by Stafford.
To satisfy the requirement of presenting evidence sufficient to make a prima facie case, the party having the burden must present substantial evidence. Substantial evidence is "that character of evidence which would convince an unprejudiced, thinking mind of the truth of the fact to which the evidence is directed. " Sacred Heart Medical v. Carrado, 20 Wn. App. 285, 288 (1978), citing Omeitt v. Department of Labor & Indus., 21 Wn.2d 684, 686 (1944). Given this standard, we find that the beneficiary's proof (that her husband suffered several stab wounds and that he died from a stab wound to the heart such that the medical examiners characterized the manner of death as homicide) rises to this level and meets her initial burden. An unprejudiced mind should, without other substantial evidence raising a contrary inference, reasonably draw an initial inference that a stabbing death is more likely than not the result of a criminal act perpetrated against the deceased.
In contrast, in these circumstances (TJR being dead from the stab wound to the heart), the Department's evidence (that Mr. Peoples, the slayer, had a cut on his tongue and a swollen lip) should not in our view raise any more than sheer speculation, in the mind of an unprejudiced, thinking person, as to whether TJR was attempting to commit, or committing, a felony when he was  killed, or that Mr. Peoples was acting in self-defense or that the homicide was justifiable. Given only the evidence presented to us, it is just as reasonable, indeed more reasonable, to infer that the lesser wounds sustained by Mr. Peoples, if indeed he sustained them in the incident, were self-inflicted or accidental or the result of TJR's attempts to fend off an attack by Mr. Peoples. In sum, the Department itself merely suggests to us that TJR was culpable or that Mr. Peoples' act of homicide was not criminal in nature. The actual evidence presented, however, does not effectively "raise an issue as to one of these elements" so as to require further proof by TJR's widow, as indicated in Stafford.
Finally, we hold that the particular statutory bar to recovery in RCW 7.68.070(3)(a) is not applicable in a case where the evidence establishes the victim died of injuries caused by the alleged criminal act. RCW 7.68.070(2) establishes the claimant's initial burden of producing evidence of a crime. The legislative history of Laws of 1996, ch. 122 (SHB 2358) evinces a clear legislative intent to amend RCW 7.68.070(3)(a) so as, in death cases, to fully relieve surviving spouses and other dependents of the burden of proving that the victim's death was not the result of consent, provocation, or incitement by the victim. The original House Bill (HB 2358) did not contain such relief. However, SHB 2358, passed by the House and the Senate, in Section 5, amended RCW 7.68.070(3)(a) to contain the relief. The Department of Labor and Industries provided an Individual State Agency Fiscal Note that indicated belief that the relief would result in an approximate 12 additional fatal claims per year. The Senate Bill Report stated:
If a victim is killed due to any injury from a crime, the department may no longer deny benefits on the basis that the victim's "consent, provocation, or incitement" resulted in the injury.
Senate Bill Report, SHB 2358, at 2. The Crime Victims Compensation Act is "patently remedial" and any doubts with regard to legal interpretation should be resolved in favor of the injured crime victim and beneficiaries. Haddenham v. State, 87 Wn.2d 145, 148 (1976); Sebastian v. Department  of Labor & Indus., 95 Wn. App. 121, 125 (1999), affirmed Slip Opinion No. 68228-3, November 2, 2000. It is apparent to us that, in amending RCW 7.68.070(3)(a), the Legislature was furthering the remedial purposes of the Act by relieving beneficiaries of certain proof requirements in death cases.
Thus, in a death case, the beneficiaries' evidence must properly give rise to an initial inference that the death was due to an injury sustained as the result of a crime. In order to require more of the beneficiary, the Department must produce evidence to reasonably rebut such inference, and/or the Department must present substantial evidence from which, if unrebutted, an unprejudiced, thinking person would infer that the victim was attempting to commit, or committing, a felony. In the present case, the beneficiary presented sufficient evidence from which an unprejudiced, thinking person would infer that her husband was slain by a criminal act. The Department did not present sufficient evidence from which it would be reasonable to infer otherwise, and the Department did not present sufficient evidence from which it could be inferred that TJR was attempting to commit, or committed, a felony.
After consideration of the Proposed Decision and the Petition for Review filed thereto, and a careful review of the entire record before us, we make the following:
FINDINGS OF FACT
1. On May 20, 1999, the Department of Labor and Industries received an application for benefits from the widow-beneficiary, alleging that her deceased husband, TJR, was assaulted and injured and died from fatal wounds, the result of a crime, on February 17, 1999. By order dated June 24, 1999, the Department denied the claim, indicating there is not sufficient evidence that a felony or gross misdemeanor crime occurred. The June 24, 1999 order was not communicated to the beneficiary until June 28, 1999. On September 25, 1999, the beneficiary placed in the United States Postal Service, with proper postage and address, her Notice of Appeal from the June 24, 1999 Department order. The Board of Industrial Insurance Appeals received the appeal on October 8, 1999, and assigned the appeal Docket No. 99 C0080. On November 4, 1999, the Board issued an order granting the appeal and directing that further proceedings be held on the issues raised therein. 
1. On February 17 or 18, 1999, TJR was stabbed in the chest and heart, which proximately caused his death on February 18, 1999.
2. Stab wounds that he sustained as a victim of a felony crime proximately caused TJR's death on February 18, 1999.
3. There is insufficient evidence presented from which an unprejudiced, thinking person could reasonably infer that TJR was attempting to commit, or committing, a felony when he was stabbed on February 17 or 18, 1999.
4. On February 17 and 18, 1999, the beneficiary was the spouse of TJR.
CONCLUSIONS OF LAW
- The Board of Industrial Insurance Appeals has jurisdiction over the parties and the subject matter of this appeal.
- TJR's death on February 18, 1999, was proximately caused by his being the victim of a crime within the meaning of RCW 7.68.070.
- The order of the Department of Labor and Industries dated June 24, 1999, is incorrect and is reversed. The matter is remanded to the Department with directions to allow the claim and to take such further action as indicated by the facts and the law.
It is so ORDERED.
Dated this 22nd day of February, 2001.
BOARD OF INDUSTRIAL INSURANCE APPEALS
THOMAS E. EGANChairperson
FRANK E. FENNERTY, JR.Member
I must dissent from the majority decision. That decision wrongfully shifted a burden of proof to the Department that should have remained with the beneficiaries. Mr. Peoples, the individual  alleged to have stabbed TJR, sustained injuries. As acknowledged by the majority, the finding of the medical examiner left open the possibility that the manner of death, while homicide, was not by way of a criminal act. Acts of excusable homicide or justifiable homicide are not felonies, as required to establish a proper claim. Stafford v. Department of Labor & Indus., 33 Wn. App. 231 (1982) still stands clearly for the proposition that a strict burden is upon the crime victim compensation claimants to establish their claim, including each element, by a preponderance of the evidence. The doubts left in the evidence, to which the Department points, are sufficient to "raise an issue as to one of these elements." Stafford, at 237. The issue is raised in my view. The evidence presented by the beneficiaries did not address the issue. Their claim must fail. The Board majority should have affirmed the Department order that rejected the claim.
Dated this 22nd day of February, 2001.
BOARD OF INDUSTRIAL INSURANCE APPEALS
JUDITH E. SCHURKEMember
BOARD OF INDUSTRIAL INSURANCE APPEALS
JUDITH E. SCHURKE Member