Compensable Damages next
(a) The Board may enter an Order of Payment where the claimant has suffered a minimum out-of-pocket loss of $100.00 as defined by N.J.S.A. 52:4B-18(d), or has lost at least two continuous weeks' earnings or support.
1. The minimum out-of-pocket loss requirement of (a) above shall not apply for incidents occurring upon or after December 6, 1982, where the applicant is 60 years of age or older, or is disabled as defined by 42 U.S.C. Sec. 416(I), the Federal Social Security Act. Those to be categorized as disabled for the purposes of the Criminal Injuries Compensation Act of 1971 are people who, because of a previously determined physical or mental impairment, including blindness, cannot engage in any substantial activity. In addition, their disability must be expected to result in death or have lasted, or potentially can last, for a continuous period of not less than 12 months.
2. For incidents of crime occurring on or after June 26, 1995, the minimum out-of-pocket loss requirements as stated in paragraph (a) above, shall not be applicable.
3. Where the Board determines that because of the victim's conduct, the victim contributed to the infliction of his or her injury, the Board may limit the amount of the award, reduce it or deny compensation altogether. Where an award is to be limited or reduced due to contribution or other circumstances relating to the victim's behavior or action, said award shall not exceed $12,5000 in the aggregate.
(b) The Board may order the payment of compensation for expenses incurred as a result of the personal injury or death of the victim. These expenses must represent a pecuniary loss to the claimant as defined by N.J.S.A. 52:4B-1 et seq., and these rules consisting of, but not limited to, work and earnings loss, dependents' loss of support, other reasonable pecuniary loss incurred by claimant due to victim's death.
1. Except for claims of catastrophically injured crime victims (N.J.A.C. 13:75-1.32), subject to the availability of funds the Board may also award payment for such allowable expenses which the Board determines to be reimbursable within these rules, such as reasonable charges for reasonably needed products and services, medical care, rehabilitation, rehabilitative occupational training, and other remedial treatment and care.
2. The Board may order the payment of compensation for the loss of earning power as a result of the total or partial incapacity of the victim. Said loss includes work loss or loss of income the injured person would have performed if he had not been injured, and expenses reasonably incurred by him in obtaining services in lieu of those he or she would have performed for income. In computing the earnings loss, the Board may consider any income received from substitute work actually performed by the claimant or any income that would have been earned through available appropriate substitute work he or she was capable of performing but unreasonably failed to undertake, and reduce the award, accordingly.
3. In computing the earnings loss of the victim/claimant or in the case of death, the loss of support of the claimant/dependent, the Board shall only consider the victim's earnings and/or the amount of money the decedent was contributing to the household at the time of the injury of death of the victim. Where the dependents of a decedent have received or are receiving a greater sum of money from other sources by reason of the decedent's death than the sum contributed to their support by the decedent at the time of death, no compensation for loss of support shall be awarded to the dependents. The Board, however, reserves the right to review its determination should the claimant's dependency, marital or earnings status be altered, and to modify its award accordingly.
(i) Notwithstanding the date of the incident, for any application filed after April 6, 1992, the maximum reimbursement for loss of earnings shall not exceed a total of 104 weeks. For a victim who has been rendered permanently disabled as defined by 42 U.S.C. 1381 et seq., loss of earnings may be awarded for a period of 260 weeks (five years). In either case, the victim shall enroll in a retraining or rehabilitation program or establish that the victim's disability prevents participation in such a program or participation in gainful employment. Maximum reimbursement for loss of support in death claims shall not exceed that of 48 months.
(ii) The weekly maximum reimbursement for loss of earnings shall not exceed the amount set forth for each of the calendar years listed below:
2003 --------------- (Reserved)
2001 - 2002-------- $525.00
1999 - 2000-------- $500.00
1990 --------------- $370.00
1982 -1985 -------- $217.00
(c) Every claimant making application to the Board for compensation is required to produce verification for and provide evidence of all losses and injuries claimed as compensable items in said application, and the Board shall consider solely those losses and injuries for which such verification and evidence is so produced.
(d) In making its award, the Board shall make no allowance for pain and suffering.
(e) In claims involving the death of a victim, the maximum reimbursement for funeral expenses shall be as follows:
1. For incidents occurring before January 10, 1980, $750;
2. For incidents occurring on or after January 10, 1980, $2000;
3. For incidents occurring on or after March 10, 1990, $3000;
4. For incidents occurring on or after January 1, 1999, $3500; and
5. For incidents occurring on or after July 1, 2001, $5000.
(f) Unless otherwise permitted by these rules and the provisions of N.J.A.C. 13:75-1.25(e), the Board shall limit its award to losses incurred as a result of personal injury or death resulting from a violent crime as defined by N.J.S.A. 52:4B-11. All property damage is specifically excluded except as provided for clothing and bedding pursuant to (p) below and funds stolen pursuant to N.J.A.C.
13 : 75-1.25(e).
(g) Except as provided by N.J.A.C. 13:75-1.32 for cases to be determined to be catastrophic in nature, for injuries resulting from incidents occurring on or after December 7, 1982, no compensation shall be awarded in an amount in excess of $25,000. For incidents occurring in an amount prior to December 6, 1982, the maximum compensation shall not exceed $10,000. These limitations shall remain in effect until statutory law provides otherwise.
1. Except as provided by N.J.A.C. 13:75-1.32 for cases to be determined to be catastrophic in nature, for incidents occurring on or after June 26,1995, any claim for compensation shall expire five years after the entry of an initial determination order. No further order is to be entered with regard to the claim except for requests for payment of specific out-of-pocket expenses received by the Board prior to the expiration of the five year period or for expenses for which the Board had notice or should reasonably have known existed prior to the expiration of the stated five year period.
(h) Unless otherwise provided for by N.J.S.A. 52:4B-1 et seq. and these rules, an award for compensation may be made whether of not any person is prosecuted or convicted for the crime giving rise to the claim before the Board.
(i) No passenger in a motor vehicle, vessel or commercial vehicle who knew or reasonably should have known that the driver was operating the vehicle or vessel while under the influence of alcohol or drugs is eligible for compensation.
1. In order for a victim to be eligible for compensation it is not necessary that the offender is convicted of a violation under R.S. 39:4-50, 39:3-10.13 or 12:7-46, nor that a blood alcohol test be administered to the offender. However, the victim or claimant must demonstrate by a preponderance of the credible evidence that the incident involved driving a vehicle or operating a vessel while under the influence of alcohol or drugs.
(i) Under the influence as used in this subsection means a substantial deterioration or diminution of mental faculties or physical capabilities of a person whether due to intoxicating liquor, narcotic, hallucinogenic or habit-producing drugs.
(ii) In any matter involving a violation of N.J.S.A. 39:4-50 relating to driving a vehicle or operating a vessel while under the influence of intoxicating liquor, the following factors will be taken into account:
(1) A blood alcohol reading of 0.10% is prima facie evidence of a violation of N.J.S.A. 39:4-50;
(2) A blood alcohol reading in excess of 0.05% but less than 0.10% shall not give rise to any presumption that the offender was or was not under the influence of intoxicating liquor, but such fact may be considered with any other competent evidence; and
(3) A blood alcohol reading of 0.05% or less shall give rise to the presumption that the offender was not under the influence of intoxicating liquor; and
(4) A blood alcohol reading of 0.04% is prima facie evidence of a violation of N.J.S.A. 39:3-10.13, operating a commercial vehicle while under the influence.
2. The Board may deny or reduce an award if the Board finds the victim was not wearing protective equipment such as a safety belt or if the victim is the operator of a second vehicle and does not have automotive insurance required by law.
(j) Except as provided by N.J.A.C. 13:75-1.32 for cases to be determined to be catastrophic in nature, the Board shall award no compensation for chiropractic or physical therapy services for a period of greater than 30 visitations for treatments and visits. When direct victims, claimants or secondary victims have been compensated for or attended more than 30 such visitations as of September 5, 1991, the Board shall award no compensation for chiropractic or physical therapy services for an additional period greater than six sessions beyond the date of the last service.
(k) The Board may deny compensation to a claimant unless the claimant has satisfied all Victims of Crime Compensation Agency assessments imposed pursuant to N.J.S.A. 2C:43-3.1 and restitution ordered by the courts to be paid specifically to the Board until such time as proper proof is submitted verifying satisfaction of said obligations.
1. Where possible, the Board may forward the amount of the outstanding assessment and/or restitution directly to the proper collection authority from any proceeds of the award of compensation the Board may make to or on behalf of the victim or claimant.
(1) The Board shall make no award for compensation to or on behalf of a victim and may close the claim without prejudice during any period of their incarceration or where a court ordered bench warrant for the victim or claimant's arrest remains active or where criminal charges are pending against the victim or claimant due to the filing of a criminal complaint or return of an indictment. Upon release from any period of incarceration or submission to the board of verification from the court that the bench warrant, criminal complaint or indictment has been dismissed or otherwise disposed of, the victim or the claimant may petition the Board to reopen the claim.
1. No compensation shall be awarded for incidents occurring on or after December 23, 1991, if the victim sustained injuries while incarcerated for the conviction of a crime. Factors to be considered in determining incarceration shall include, but not be limited to, restraints placed on personal liberty; freedom from mobility; and whether the individual is under the care, custody and control of any penal institution or similar institution.
2. Where a victim is injured while serving a non-custodial sentence or while incarcerated for reasons other than conviction of a crime, or injured while incarcerated prior to December 23, 1991, the Board will take all relevant matters into consideration including, but not limited to, the following:
(i) The provisions of N.J.S.A. 52:4B-9 requiring the Board to consider the availability of funds as appropriated by the State in awarding compensation;
(ii) Whether the victim assumed a reasonable risk of injury under the circumstances of the case;
(iii) Whether the victim had reason to believe that his or her actions would result in arrest, conviction, sentence and incarceration;
(iv) The likelihood of the victim's conviction for the allegations serving as a basis for the victim's incarceration;
(v) The nature of the offense and the sentence imposed; and
(vi) The disposition of the charges by the criminal justice system.
(m) The Board shall award compensation for expenses incurred as a result of the relocation of a victim and/or his or her family with the victim, due to the incident forming the basis of the victim's claim before the Board where the Board determines there is a need to protect the health and safety of the victim and/or his or her family and that all other statutory requirements for eligibility are met.
1. In determining the need, the Board shall take into consideration:
(i) The nature of the crime;
(ii) The amount of danger the offender or others who may be associated with the offender poses to the victim and/or his or her family;
(iii) The degree of injury the victim sustained;
(iv) The criminal case history of the offender and the offender's record while incarcerated.
(v) Prior acts of the offender;
(vi) What efforts the victim and/or his or her family have undertaken to protect themselves from further harm;
(vii) The offender's sentence and period of incarceration whether for the crime forming the basis of the claim filed with the Board or through a plea bargain on related or unrelated charges;
(viii) Any other relevant factors; and
(ix) The emotional, psychological and physical impact on the victim and/or his or her family which may result through a failure to relocate.
2. Compensation for moving expenses shall be paid for relocation of victim's family solely where the victim resided with the family at the time of the incident and, except where the crime resulted in the death of the victim, the victim relocated to the new premises with the family.
3. Maximum reimbursement for moving expenses shall be $2,500. Related moving expenses may include truck rental, security deposit, temporary shelter, personal expense items of the claimant which the Board may deem to be reasonable and necessary under the circumstances, moving services, and monthly rental and mortgage cost differential and, subject to any limitations set forth in (o) below, the cost of no more than five days shelter and lodging in a location other than the residence wherein the crime scene is located and which has been vacated due to the need to clean the crime scene .
4. A victim or claimant may only seek compensation for moving expenses once for each claim filed with the Board.
5. In the case of an arson fire, compensation may be awarded pursuant to this section, solely where the Board determines that there is a need to protect the health and safety of the victim and victim's family members from further acts of violence perpetrated intentionally and specifically directed at the victim and victim's family by the offender.
6.This subsection shall also apply to situations involving organized gangs where the criminal is requested to testify on behalf of the State of New Jersey in a criminal prosecution and the claimant is placed in fear for his safety due to terroristic threats or other criminal activity. The facts supporting eligibility for compensation under this section may be established through certification by a member of the State of New Jersey Division of Criminal Justice attesting to same.
7. Due to the emergent need of relocation funds in many situations, any time consuming documentation proof requirements may be lessened at the Board's discretion.
(n) Where a criminal act has caused injury or death to a service animal trained and certified for the specific purpose of assisting an individual who is disabled or who requires the service of such an animal to perform day to day routine functions, the injured animal's crime related medical and replacement cost incurred due to the animal's injury are compensable up to a maximum of $5,000. Funeral expenses for the animal shall not be compensated by the Board. Counseling to the animal's owner shall be limited to no more than 15 sessions, payment to be made pursuant to fee schedule in N.J.A.C. 13:75-1.27.
(o) Except in the case of arson, the Board shall award compensation for the reasonable and necessary costs for cleaning the scene, wherein criminally injurious conduct occurred, which costs have become the financial responsibility of the direct victim or claimant and for which reimbursement from other sources, as defined by N.J.A.C. 13:75-1.19, is not available including, but not limited to, homeowner's or other property insurance and funding from law enforcement and other governmental entities. Awards of compensation made by the Board shall not supplant existing state and federal funding sources for crime scene cleanup.
1. Cleaning a crime scene means to remove, or attempt to remove, from the crime scene, blood, dirt, stains or debris which requires hauling and dumping as a result of the crime or the processing of the crime scene and may include the reasonable out-of-pocket cost of cleaning supplies, equipment rental and labor purchased as a direct result of the crime.
2. Compensation awarded for crime scene cleanup costs shall not include replacement and/or repair expenses for personal property, other than as allowed pursuant to (p) below, and furniture which has been rendered damaged or useless as a result of the crime or the collection of evidence for purposes of investigating the crime.
3. A crime scene, for purposes of compensation, shall be considered solely as a residence, leased or otherwise where the injurious conduct occurred, of either a direct victim of a crime, a family member of the victim or person in close relationship to a victim as the terms A family@ and A person in close relationship@ are defined by N.J.A.C. 13:75-1.28(a). Places of employment, a vehicle or public access not considered part of the residence premises are excluded unless the victim or claimant has become financially responsible for the cleanup costs.
4. Cleanup services compensated by the Board may only be performed by a professional cleaning agency or service which specializes in crime scene cleanup. However, the Board may authorize compensation for cleanup services performed by the victim or claimant or by an individual or agency of their choosing where the need for such services is immediate or, under all the circumstances of the incident, preferred by the victim or claimant or where the crime is not an indictable offense.
5. Compensation for crime scene cleanup shall be awarded solely through an eligible claim for compensation filed with the Board by, or on behalf of, a direct victim of a crime who has suffered an injury or death. Claims seeking exclusively reimbursement for crime scene cleanup shall not be eligible for an award of compensation, but may be merged with and compensated through a crime related eligible claim as described in this paragraph.
6. Compensation awarded for crime scene cleanup shall not exceed $ 1,500 in the aggregate.
(p) The Board shall award compensation for the reasonable replacement value of bedding and clothing, solely, which has been removed from a crime scene as defined in (o)(3) above, and held for evidentiary purposes, but not returned to the victim or claimant within a reasonable amount of time and, if returned, rendered useless or damaged by forensic processes used to collect evidence.
1. Bedding, as defined herein, shall include solely a mattress, box spring, linen and pillows. The bed frame and headboard are excluded.
2. Compensation shall not be awarded for the clothing or bedding of a deceased victim which is held as evidence unless verified that such items were not personal to the decedent alone, but were items shared by the decedent within the claimant's household.
3. Compensation for evidence replacement may be awarded solely through an eligible claim for compensation filed with the Board by, or on behalf of, a direct victim of a crime.
4. Compensation awarded for evidence replacement, which has not been reimbursed from other sources as defined by N.J.A.C. 13:75-1.19, shall not exceed $500 in the aggregate.
(q) The Board may award compensation for the reasonable replacement value of carpeting, doors, windows and locks. The total amount which may be awarded under this section shall not exceed $2,000 in the aggregate.
(r ) The Board may allow payment up to a maximum of $1,000 at an hourly rate of $125.00 per hour to an attorney who provides legal assistance to a victim in explaining and enforcing the victim's rights in the criminal justice system provided the attorney has successfully completed an attorney training program sponsored by the Board.
(s) The Board may, within its discretion, prioritize the various items of payment for any claim, in the event it determines that the maximum amount of $25,000 payable by the Board will be or is likely to be reached.