State v. Workman

                                      622

           Submitted November 5, 2018, affirmed November 20, 2019


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                CHRISTOPHER LEE WORKMAN,
                      Defendant-Appellant.
                 Deschutes County Circuit Court
                      16CR57308; A165068
                                  

     Defendant was convicted of third-degree assault, ORS 163.165(2)(a), based on
an Alford plea. The sentencing court imposed $8,274.84 in restitution, payable
to the Crime Victims’ Compensation Program (CVCP), for medical expenses and
lost wages paid on behalf of and to the victim. Defendant challenges the award of
restitution for the medical expenses, contending that, under State v. McClelland,

, 

, rev den, 

 (2016), there is insufficient
evidence to support a finding that the claimed medical expenses were reasonable. Held: The sentencing court did not err in its award of restitution, because
evidence that CVCP reimbursed the victim based on Oregon’s workers’ compensation fee schedules supported the court’s conclusion that the medical expenses
paid were reasonable.
    Affirmed.



    Wells B. Ashby, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kristin A. Carveth, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and James, Judge, and
Haselton, Senior Judge.
    LAGESEN, P. J.
    Affirmed.
Cite as 

 (2019)                                                  623

           LAGESEN, P. J.

         Defendant was convicted of third-degree assault,
ORS 163.165(2)(a), based on an Alford plea.1 The sentencing court imposed $8,274.84 in restitution, payable to the
Crime Victims’ Compensation Program (CVCP),2 for medical
expenses that CVCP paid on behalf of the victim (a total of
$5,154.84), and lost wages ($3,120) that CVCP paid to the
victim. On appeal, defendant challenges the award of restitution for the medical expenses, contending that, under
State v. McClelland, 

, 

, rev den,

 (2016), there is insufficient evidence to support a
finding that the claimed medical expenses were reasonable.
On review for legal error, State v. Campbell, 

, 

 (2019), we affirm.

          When the state seeks restitution for amounts paid
for medical charges, it must prove that the charges were
reasonable. ORS 137.103(2); ORS 31.710; McClelland, 

. A medical charge is reasonable if it is at (or
below) the market rate for the services, drugs, or other medical items provided: “[T]he market rate is a reasonable amount
for a victim to recover for medical expenses.” Campbell, 

. Medical bills, standing alone, are insufficient
to prove that the charges reflected therein are market rate
(or below) and, therefore, reasonable for purposes of the restitution statutes. State v. J. M. E., 

, 

 (2019). Rather, “[s]ome additional testimony or
evidence is required to support the reasonableness of the
bill for the hospital or medical services.” McClelland, 

. As we recognized in Campbell, that additional
evidence may consist of evidence that the medical charges
for which restitution is sought “were at or below the usual

    1
      “An Alford plea is a guilty plea in which the defendant does not admit commission of the criminal act or asserts that he is innocent. In such a situation,
the trial court must determine that there is a factual basis for the plea.” State v.
Sullivan, 

, 28 n 1, 

 (2005), rev den, 

 (2006)
(emphasis in original).
    2
      ORS 137.103(4)(c) provides that the “Crime Injuries Compensation Account”
qualifies as a “victim” entitled to receive restitution “if it has expended moneys on
behalf” of “[t]he person or decedent against whom the defendant committed the
criminal offense, if the court determines that the person or decedent has suffered
or did suffer economic damages as a result of the offense.”
624                                          State v. Workman

and customary rate for those services in that market.” 

.
         Although defendant argues otherwise, this is not a
case in which the trial court awarded restitution for medical charges based on bills alone. At the restitution hearing,
the state called Shaw, the manager of CVCP. She testified
that, before paying medical expenses, CVCP would review
the bill, the chart notes, and, in the case of a victim with
insurance, the explanation of benefits. She testified further
that the amounts it paid for the victim’s medical expenses
were for hospital bills, doctor bills, and bills for medication.
Most significantly with respect to the issue of reasonableness, Shaw explained that CVCP “did not pay the majority of those bills at 100 percent.” Instead, at least when the
victim is uninsured, CVCP pays medical charges using the
workers’ compensation fee schedule for medical services. In
this case, the victim was uninsured and CVCP, in fact, paid
the medical charges at issue in accordance with the workers’ compensation fee schedules, writing off amounts that
exceeded what was allowed by the fee schedule.
         That evidence is sufficient to support a finding that
the medical charges for which restitution was sought in this
case were at or below market rate and, therefore, reasonable.
By statute, ORS 656.248, the rates contained in Oregon’s
workers’ compensation fee schedules “shall represent the
reimbursement generally received for the services provided”
and must be based on “any one or all of the following” types
of information about the medical services market:
      “(a) The current procedural codes and relative value
   units of the Department of Health and Human Services
   Medicare Fee Schedules for all medical service provider
   services included therein;

      “(b) The average rates of fee schedules of the Oregon
   health insurance industry;

      “(c) A reasonable rate of markup for the sale of medical
   devices or other medical services;

       “(d) A commonly used and accepted medical service
   fee schedule; or
Cite as 

 (2019)                                  625

      “(e)   The actual cost of providing medical services.”
ORS 656.248(1).
         In view of those statutory requirements, it can be
inferred that workers’ compensation fee schedules reflect
customary market rates for medical services and, consequently, that medical charges paid at those rates, as happened here, were reasonable. The trial court did not err in
awarding restitution for the claimed medical expenses on
this record.
         We observe that our recent decision in J. M. E., 

, which also involved restitution payable
to CVCP, is not to the contrary. In that case, “[n]o witness
testified that the amount charged—or the amount subsequently paid by CVCP—was at or below the market rate for
those services, nor was there any other evidence as to the
reasonableness of the medical bill.” 

. Here, by contrast, the state introduced the type of evidence omitted in
J. M. E.—testimony that the charges were paid in accordance
with the workers’ compensation fee schedule. That evidence,
as noted, allows for the conclusion that the amounts paid
were reasonable.
         Affirmed.