Does Maryland's crime victims compensation fund pay for disfigurement or scarring alone?

Plain-English summary

In 1987, the Secretary of Public Safety and Correctional Services asked the Attorney General to resolve three recurring questions about how Maryland's Criminal Injuries Compensation Board administered the Criminal Injuries Compensation Act. First, could the Board compensate a crime victim for disfigurement, such as facial scarring, even when the victim had no other out-of-pocket losses or lost income? Second, when could the Board pay an award in a lump sum instead of monthly installments, and could a claimant who took a lump sum later ask for more? Third, did the law require the Board to investigate whether a claimant could be paid from other sources, such as workers' compensation, insurance, or Social Security, before making an award, and to reduce the award by whatever the claimant could get from those sources?

The Attorney General concluded that the Board could award compensation for disfigurement alone, but only if the disfigurement itself would cause the claimant serious financial hardship, such as by making the claimant less employable in his or her occupation, since the Act generally compensated economic loss rather than injury for its own sake. On lump sums, the opinion concluded the Board had discretion to pay part or all of an award in a lump sum where the evidence showed it was necessary for the claimant's living or business needs, and that a claimant who took a lump sum could still later receive additional monthly benefits if circumstances required it, because Maryland's crime-victims law, unlike workers' compensation, did not require reducing later payments to offset an earlier lump sum. On the third question, the opinion concluded the Board had to investigate every claimant's access to other compensation sources, could require claimants to apply for benefits like workers' compensation or insurance before paying an award, and had to reduce its own award by any payment the claimant had received or was substantially certain to receive from another source, including Supplemental Security Income benefits.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did Maryland's crime victims fund pay for scarring or disfigurement with no other financial loss?
According to this 1987 opinion, yes, but only if the Board found that the disfigurement itself would cause the claimant serious financial hardship, such as by threatening the claimant's ability to work in his or her occupation; the Act did not compensate disfigurement as an injury in itself.

Could a crime victim get a lump-sum payment instead of monthly benefits?
The opinion concluded the Board had discretion to convert part or all of an award to a lump sum when the evidence showed the claimant needed it to meet living or business needs, and that taking a lump sum did not bar the claimant from later receiving additional monthly benefits if the claimant's circumstances required it.

Did the Board have to check whether a crime victim could get paid from insurance or workers' compensation first?
Yes. The opinion concluded the Board was required to investigate each claimant's access to other compensation sources and could require the claimant to apply for benefits like workers' compensation or insurance before the Board paid an award, and had to reduce its own award by any amount the claimant received or was substantially certain to receive from those sources.

Background and statutory framework

The Criminal Injuries Compensation Act, Article 26A of the Annotated Code of Maryland, measured benefits by borrowing the disability schedule from the workers' compensation law, Article 101, §36, including §36(3)(f)'s allowance for compensation for "mutilations and disfigurements." But Article 26A, §12(f)(1) layered a further gatekeeper onto that borrowed schedule: no award could issue unless the claimant would otherwise suffer serious financial hardship from lost income or out-of-pocket expenses. The opinion read the Court of Appeals' decision in Williams v. Criminal Injuries Compensation Board as requiring each element of loss, including disfigurement, to be assessed on its own economic terms rather than in the aggregate. Because the disfigurement-as-compensable-loss line traced back to a 1920 workers' compensation amendment (Chapter 456, Laws of Maryland 1920) and Bethlehem-Sparrows Point Shipyard, Inc. v. Damasiewicz's rationale that scarring can depress a worker's earning power by making employers unwilling to hire or retain a disfigured employee, the opinion concluded the same economic logic could support a disfigurement award under Article 26A, so long as the Board made a specific finding of financial hardship tied to the claimant's own occupation, informed by intervening handicap-discrimination protections enacted in Article 49B, §16.

On lump sums, the opinion traced Article 26A, §13's history: originally enacted in 1968 to simply cross-reference Article 101, §36, it was amended in 1973 (Chapter 563, Laws of Maryland 1973) in the same legislative session that added an offsetting-reduction requirement to workers' compensation lump sums under Article 101, §49. The opinion read that pairing as a deliberate legislative choice not to import the workers'-compensation offset rule into the crime-victims program, consistent with Article 26A's needs-based purpose stated in §1 and the Court of Appeals' lump-sum standard in Bethlehem Steel Company v. Taylor and Petillo v. Stein.

On the offset question, the opinion worked through Article 26A, §12(d)'s "received or to be received" language, concluding it reached compensation that was substantially certain, such as an entered tort judgment, but not merely speculative recoveries like an unresolved tort claim. The hardest piece was the interaction between Article 26A awards and federal Supplemental Security Income once Maryland's program began drawing federal Victims of Crime Act grant money under 42 U.S.C. §10602: because SSI counts only need-based aid that is wholly state-funded as excluded income under 42 U.S.C. §1382a(b)(6) and 20 C.F.R. §416.1124(c)(2), a partially federally funded Article 26A award could no longer be disregarded in an SSI recipient's income calculation, requiring the Board to offset its own award against SSI entitlements rather than the reverse. A 1988 Editor's Note appended to the opinion flags that the General Assembly restructured the Board's decision-making process later that year in Chapter 250 (House Bill 823), Laws of Maryland 1988.

Citations

Statutes:

• Article 26A, §1 (statement of purpose: assistance to crime victims who would otherwise face financial hardship)
• Article 26A, §4(d) (Board's authority to reinvestigate or reopen claims)
• Article 26A, §7 (minimum eligibility threshold for out-of-pocket loss or lost earnings)
• Article 26A, §8(b) (Board's duty to investigate the validity of each claim filed)
• Article 26A, §12(a)(1) (bar on awards where the crime was not timely reported)
• Article 26A, §12(a)(2) (awards limited to appropriated and available funds)
• Article 26A, §12(b) (benefits measured by the Article 101, §36 disability schedule)
• Article 26A, §12(d) (required reduction of awards by amounts received or to be received from other sources)
• Article 26A, §12(e) (reduction or denial of awards based on the victim's own responsibility)
• Article 26A, §12(f)(1) (no award absent serious financial hardship from lost income or out-of-pocket expense)
• Article 26A, §12(f)(2) (hardship requirement inapplicable to certain crime-prevention injuries)
• Article 26A, §13 (Board's discretion over the manner of payment, including lump sums)
• Article 101, §36 (workers' compensation disability benefit schedule, incorporated by reference)
• Article 101, §36(3)(f) (workers' compensation disfigurement compensation)
• Article 101, §36(1)(a) and (8)(a) (continued payments beyond the $45,000 ceiling for ongoing total disability or dependency)
• Article 101, §49 (workers' compensation lump-sum payments offset against later periodic payments)
• Article 49B, §15(g) (defining "physical handicap" to include injury-caused disfigurement)
• Article 49B, §16 (prohibition on employment discrimination based on handicap)
• 42 U.S.C. §10602(b)(3) (Victims of Crime Act bar on using federal grants to supplant state compensation funds)
• 42 U.S.C. §1382a(b)(6) (SSI income exclusion for wholly state-funded, need-based assistance)
• 20 C.F.R. §416.1124(c)(2) (SSI income-counting regulation for need-based state assistance)
• 20 C.F.R. §416.1404 (procedure for terminating SSI benefits)
• Chapter 250 (House Bill 823), Laws of Maryland 1988 (post-opinion restructuring of the Board's decision-making process, per the Editor's Note)

Cases:

• Williams v. Criminal Injuries Compensation Board, 307 Md. 606, 614 (1986)
• Oros v. City of Baltimore, 56 Md. App. 685, 690 (1983)
• Criminal Injuries Compensation Board v. Gould, 273 Md. 486, 519 (1975)
• Board of Education of Howard County v. Howard County, 45 Md. App. 358, 368 (1980)
• Holy Cross Hospital v. Health Services Cost Review Comm'n, 283 Md. 677, 685 (1978)
• Jackson Marine Sales v. State Dep't of Assessments & Taxation, 32 Md. App. 213, 217 (1976)
• Bethlehem-Sparrows Point Shipyard, Inc. v. Damasiewicz, 187 Md. 474, 480 (1947)
• B & O Railroad v. Bowen, 60 Md. App. 299, 307 (1984)
• Maine Human Rights Comm'n v. Canadian Pacific Ltd., 458 A.2d 1225, 1234 (Me. 1983)
• Criminal Injuries Compensation Board v. Remson, 282 Md. 168, 178 (1978)
• Redden v. Montgomery County, 270 Md. 668, 684-85 (1974)
• Crumlish v. Insurance Comm'r, 70 Md. App. 182, 187-88 (1987)
• Petillo v. Stein, 184 Md. 644, 652-53 (1945)
• Bethlehem Steel Company v. Taylor, 199 Md. 648, 651 (1952)
• Kosgarian v. Fairmount Foundry Co., 42 A.2d 894 (R.I. 1945)
• Livingston Oil Corp. v. Henson, 215 P. 1057 (Okla. 1923)
• McKenzie v. C.C. Kottcamp & Sons, Inc., 69 Md. App. 413, 420 n.3 (1986)
• Archer v. Crime Victims Compensation Board, 305 N.W.2d 259, 260 (Mich. App. 1981)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1987/Volume72_1987.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CRIME VICTIMS COMPENSATION

Criminal Injuries Compensation Board—Disfigurement—Lump Sum Payments—Alternative Compensation Sources.

September 29, 1987

The Honorable Bishop L. Robinson, Secretary of Public Safety & Correctional Services

You have requested our opinion on a series of questions concerning the interpretation and administration of the Criminal Injuries Compensation Act, Article 26A of the Annotated Code of Maryland. Specifically, you ask:

1. May the Criminal Injuries Compensation Board grant awards for disfigurement, particularly in cases in which the claimant has incurred no compensable expenses or past loss of income?

2. Under what circumstances may a recipient of an award for permanent disability or loss of support be granted payment wholly or partially in a lump sum, rather than in monthly benefits; and, may a claimant who receives a lump sum subsequently be granted additional monthly benefits before the date on which the original award would have been fully paid in monthly benefits?

3. Does Article 26A, §12(d), which requires the reduction of awards by any amount "received or to be received" from other sources, authorize or require the Board to (i) investigate the availability to each claimant of alternative compensation sources, (ii) require claimants to seek payment from those sources as a prerequisite to the grant of any award, and (iii) reduce any award by the amount that the claimant may be entitled to receive from any available source.1

For the reasons given below, we conclude as follows:

1. The Criminal Injuries Compensation Board may grant awards for disfigurement, even where it finds no other compensable loss. However, the Board may do so only if it finds that the disfigurement will cause the claimant to incur serious financial hardship from loss of income or from out-of-pocket expenses or that the serious financial hardship requirement is inapplicable under Article 26A, §12(f)(2).2

2. The Board may order payment of a permanent disability or loss of support award wholly or partially in a lump sum if the evidence before it, as set forth in its decision, shows that the requested lump-sum payment is necessary to provide for the living or business needs of the claimant. The Board may subsequently grant the claimant additional monthly benefits before the date on which the original award would have been paid, if the claimant's circumstances make the additional benefits necessary.

3. The Board is required to reduce each of its final awards by the amount that the claimant has received or definitely will receive from any other source of compensation. Therefore, the Board is required to ascertain in each case whether there are any such alternative sources of compensation, and the Board may and generally should require the claimant to seek compensation from those alternative sources as a prerequisite to its grant of a final award.

I
Awards for Disfigurement

Awards under the Criminal Injuries Compensation Act are to be "made in accordance with the schedule of benefits and degree of disability as specified in Article 101, §36 (as it existed on July 1, 1974), §37 and other applicable sections of the Code, excluding §66 entitled 'Subsequent Injury Fund'." Article 26A, §12(b). However, unlike workers' compensation, criminal injuries compensation is not designed to afford compensation for the victim's injury in itself.3 The focus of criminal injuries compensation is on the economic losses caused by the injury and on the claimant's need for assistance in meeting those losses. Williams v. Criminal Injuries Compensation Board, 307 Md. 606, 614 (1986). Accordingly, §12(f)(1) ordinarily prohibits any award "[i]f the Board finds that the claimant will not suffer serious financial hardship, as a result of the loss of earnings or support and the out-of-pocket expenses incurred as a result of the injury, if not granted financial assistance pursuant to this article to meet the loss of earnings, support, or out-of-pocket expenses . . . ."4

On occasion, the Board receives claims from crime victims whose injuries have left them with scars but no permanent impairment of bodily function. You ask whether such disfigurement, since it does not actually make the disfigured person physically unable to work, can cause serious financial hardship. Further, some of those claimants have not directly paid for the treatment of their injuries, nor were their earnings actually suspended during any time that they may have been unable to work because of their injuries. That might be the case, for example, because those losses were covered by insurance or employment benefits or because the claimant was unemployed and the expenses were covered by government assistance.5 You ask whether, in view of the serious financial hardship requirement, the Board is authorized to make awards for disfigurement in those cases.

A. Authority to Grant Disfigurement Benefits Generally

Article 26A, §12(b) reflects the General Assembly's intention to afford eligible crime victims compensation of the same types as are afforded to injured workers under the Workers' Compensation Act. Article 101, §36 provides for compensation for four types of disability: permanent total disability, permanent partial disability, temporary total disability, and temporary partial disability. Permanent partial disability compensation is measured, for the most part, according to a schedule of benefits for particular injuries. Article 101, §36(3). In addition, however, §36(3)(f) provides that "[f]or other mutilations and disfigurements . . . compensation shall be allowed in the discretion of the [Workers' Compensation] Commission, for not more than one hundred weeks in each case having due regard to the character of the mutilation and disfigurement as compared with mutilation and injury hereinbefore specifically provided for."

That provision has been part of the workers' compensation law since 1920. Chapter 456, Laws of Maryland 1920. In incorporating Article 101, §36 into the Criminal Injuries Compensation Act as the measure of benefits, the General Assembly presumably knew of the provision for compensation for disfigurement: It must be assumed that "the General Assembly in enacting legislation does so with a full knowledge as to prior and existing law and judicial decisions with respect to such law." Criminal Injuries Compensation Board v. Gould, 273 Md. at 498. Had the General Assembly intended to preclude the Board from ever making awards for disfigurement, we think that it would have made such an exception expressly in §12(b). Board of Education of Howard County v. Howard County, 45 Md. App. 358, 368 (1980).6

Moreover, throughout its existence, the Board has made awards for disfigurement, and those awards have been reflected in its annual reports, published pursuant to the mandate of Article 26A, §4(h). E.g., State of Maryland Criminal Injuries Compensation Board Second Annual Report 19 (1971) (Claim No. 25P-70). It is certainly true that no administrative practice, however venerable, is valid if it contravenes the clear meaning and purpose of a statute. Holy Cross Hospital v. Health Services Cost Review Comm'n, 283 Md. 677, 685 (1978). Nonetheless, we think that the Board's longstanding practice of making disfigurement awards, consistently and publicly followed, is persuasive as to the legislative intent. The General Assembly would surely have amended Article 26A to preclude awards for disfigurement if it did not intend the Board to have authority to make such awards in appropriate cases. Jackson Marine Sales v. State Dep't of Assessments & Taxation, 32 Md. App. 213, 217 (1976).

B. Serious Financial Hardship Requirement

However, §12(f)(1) is a clear limitation on the Board's authority to make any awards, in that it permits an award only to the extent that the claimant would otherwise suffer serious financial hardship. Williams v. Criminal Injuries Compensation Board, 307 Md. at 614. Such hardship must result from the pecuniary losses caused by the criminally inflicted injury, that is, loss of income or out-of-pocket expenses incurred. 307 Md. at 614-15. Therefore, if disfigurement is unlikely to cause an economic loss leading to serious financial hardship, §12(f)(1) prohibits awarding compensation for disfigurement.

An award of benefits for disfigurement would not be precluded by the fact that the claimant did not incur unreimbursed expenses for the treatment of his or her injuries and did not lose income during a period of inability to work.7 The Court of Appeals has clearly indicated that each element of loss must be considered separately in assessing the existence and extent of a crime victim's financial hardship. Williams, 307 Md. at 614 and 615. In that case, the court held that a claimant who incurred expenses and lost earnings during a period of temporary total disability is not entitled to compensation for a permanent partial disability where "there is no showing that [the claimant's] permanent disability will in the future cause him additional expenditures or loss of income for which he will have the requisite degree of financial need under §12(f)(1)." 307 Md. at 615-16. The fact that the claimant had shown the requisite level of hardship to entitle him to reimbursement of his out-of-pocket expenses and compensation for his temporary total disability did not entitle him to compensation for a permanent injury that would not cause such hardship.

We think that the converse is equally true: A claimant is entitled to compensation for a permanent injury that will cause loss of income and concomitant serious financial hardship, notwithstanding that he or she did not incur unreimbursed out-of-pocket expenses or loss of income during a period of temporary total disability. It is the economic impact of the disfigurement, not the economic impact of other possible losses, that must be assessed to determine whether or not a claimant should be granted disfigurement benefits.

C. Serious Financial Hardship Resulting from Disfigurement

The Court of Appeals long ago considered disfigurement benefits in the context of workers' compensation. Noting that "[t]he general purpose of the [Workers' Compensation] Act is to provide compensation for loss of earning capacity resulting from accidental injuries sustained in industrial employment," the court pointed out:

"[A] disfigurement may constitute an economic loss in the sense of diminished power to produce, and it may be as much part of the workman's loss as the loss of a limb. A serious and unnatural disfigurement of the face, for example, may very probably have a harmful effect upon the ability of the disfigured person to retain or secure employment. Such a disfigurement, aside from exceptional cases, may render the person repulsive or offensive to the sight and displeasing to his employer, fellow employees and customers." Bethlehem-Sparrows Point Shipyard, Inc. v Damasiewicz, 187 Md. 474, 480 (1947).

Thus, the General Assembly had authorized compensation for disfigurement because it found that many, if not most, employers would be unwilling to hire or retain a disfigured worker. Under those circumstances, "in the majority of cases disfigurement sooner or later may have a harmful effect" on the worker's earnings. 187 Md. at 481. However, because entitlement to workers' compensation was not and is not predicated on financial need or actual income loss, "[t]he [Workers' Compensation] Commission may award compensation even though the claimant has not shown that it diminishes his earning capacity." Id. That is, the authorization of disfigurement benefits in workers' compensation embodied a legislative presumption that disfigurement would operate to an individual's disadvantage in employment because employers would discriminate against the disfigured individual.

That implicit presumption was at least arguably applicable to a claim for disfigurement compensation under Article 26A. See Criminal Injuries Compensation Board v. Gould, 273 Md. at 498 (General Assembly acts with full knowledge of existing law and judicial decisions interpreting it).8 However, since the enactment of Article 26A, the General Assembly has enacted prohibitions against any form of discrimination in employment opportunities on the basis of "physical or mental handicap unrelated in nature and extent so as to reasonably preclude the performance of the employment. ..." Chapter 875, Laws of Maryland 1974 (provisions now codified at Article 49B, §16).9 For the purposes of those prohibitions, "physical handicap" includes "any physical disability, infirmity, malformation or disfigurement which is caused by bodily injury. ..." Article 49B, §15(g). Hence, the discharge of or refusal to hire an individual because of his or her injury-caused disfigurement would now, in most cases, be an unlawful employment practice.10 Under these circumstances, there is no longer a basis for presuming that disfigurement will in every case have a deleterious effect on the individual's earning capacity. In most cases, such an effect is prohibited by law.

Nonetheless, not every instance of different treatment of a handicapped individual is unlawful discrimination. Article 49B, §16 prohibits employment discrimination based on a handicap only if the handicap "is unrelated in nature and extent so as to reasonably preclude the performance of the employment. . . ." A handicap that prevents the individual from effectively performing a particular job may lawfully be the basis for excluding that individual from that job. B & O Railroad v. Bowen, 60 Md. App. 299, 307 (1984). See also 68 Opinions of the Attorney General 322, 324 (1983). Thus, if the nature of a particular job requires a worker who is not obviously disfigured, the employer may lawfully refuse to employ in that job a person who is so disfigured.

Once a complainant in an employment discrimination case has shown that discrimination occurred, the burden is on the employer to show that the discrimination is justified. B & O Railroad, 60 Md. App. at 309. That burden may be carried by establishing that the employer has a factual basis to believe that, to a reasonable probability, the complainant's physical handicap renders him or her unable to perform the duties of the job. Maine Human Rights Comm'n v. Canadian Pacific Ltd., 458 A.2d 1225, 1234 (Me. 1983).11 Therefore, to determine whether a claimant will incur loss of earning capacity as a result of disfigurement, the Board must first determine whether the claimant's usual occupation, that is, the claimant's occupation at the time of the injury or the occupation for which the claimant is suited by training and experience, is one for which an unscarred appearance is a valid qualification. In addition, the Board must determine whether the location and severity of the claimant's scars are such as to be apparent and disfiguring while performing the job.12 For example, severe facial scarring might well prevent a cosmetics demonstrator from continuing in that occupation but have no effect on the ability of a construction worker to continue performing his or her work. Hence, an award of disfigurement benefits would be permissible because of the disfigurement's impact on earning capacity in the first, but not the second, case. Similarly, a scar on the leg would not affect a cosmetics demonstrator's ability to perform that job and therefore, unlike facial scarring, would not be a basis for a disfigurement award to that claimant.13

In any case, the Board's decision must clearly set forth the findings as to the requirements of the claimant's occupation and the relevance of the claimant's scars to those requirements that lead the Board to conclude that the claimant's earning capacity has been or has not been impaired. Article 26A, §8(f); Redden v. Montgomery County, 270 Md. 668, 684-85 (1974); Crumlish v. Insurance Comm'r, 70 Md. App. 182, 187-88 (1987).14

II
Lump Sum Payments

A. Authority to Grant

The schedule of benefits set forth in Article 101, §36 provides for payment of disability and survivors' benefits weekly, in amounts based on the average weekly wage of the victim or of workers in the State generally. However, Article 26A, §13 provides in part that "in every case providing for compensation to an employee or his dependent under this article, the Board may, if in its opinion the facts and circumstances of the case warrant it, convert the compensation to be paid in a partial or total lump sum, without discount."15 In the related context of workers' compensation, the Court of Appeals has pointed out:

"The policy of the statute does not favor lump-sum awards. They are the exception rather than the rule. While necessary in some cases, they are not made of right. The Legislature wisely left the determination of when they should be made, and to what extent, in the discretion of the administrative body charged with special knowledge of the subject. The authority given to the Commission is safeguarded by ample opportunity for review by the courts." Petillo v. Stein, 184 Md. 644, 652-53 (1945).16

Thus, the Board has discretion to order the payment of an award in a partial or total lump sum in a proper case. But this discretion must not be abused: There must be evidence in the record before the Board to support its conclusion that "the facts and circumstances of the case warrant" a lump-sum payment.

The Court of Appeals has indicated that a lump-sum payment is not warranted where it is requested "for a purpose unrelated to the necessary living or business needs of the claimant. . . ." Bethlehem Steel Company v. Taylor, 199 Md. 648, 651 (1952). Therefore, lump-sum awards should not be allowed "merely to pay debts owed by a claimant, particularly in view of the fact that awards are not attachable." Id. See Article 26A, §13 (awards made under Article 26A not "subject to execution or attachment other than for expenses resulting from the injury which is the basis for the claim"). However, the courts in Maryland and elsewhere have found a variety of purposes sufficient to warrant lump-sum payments. For example, in Taylor, the court upheld the grant of a lump sum to enable the claimant to pay his indebtedness on an automobile that he needed for transportation to and from work, thereby saving the claimant interest charges on the debt.17

The facts and circumstances that warrant payment of an award in a lump sum are those of the particular case in which such a payment is requested. For that reason, the decision whether to grant such a payment is committed to the sound discretion of the Board. Nonetheless, these decisions are subject to review by the courts and must be supported by substantial evidence in the record. Article 26A, §10(a). A lump sum payment may not be granted in the absence of evidence that it is "necessary for the proper care" of the injured crime victim or the dependents of a deceased crime victim. Taylor, 199 Md. at 650.18

B. Grant of Additional Compensation After Lump Sum Payment

Compensation for a crime victim's permanent total disability or to a wholly dependent survivor of a deceased crime victim may be granted initially in a total amount not greater than $45,000. If the victim's disability or the survivor's dependency continues after that total amount has been paid, payment is continued at the original rate throughout the duration of the disability or dependency. Article 101, §36(1)(a) and (8)(a).

On occasion, a claimant who is receiving such an award in periodic payments requests that a portion of the award be converted into a lump sum and paid immediately. If that request is granted, the date on which the claimant will have received the full amount of the original award is in effect accelerated. If the claimant's disability or dependency continues after the full amount of that original award is received and the claimant is therefore granted additional periodic payments at the original rate, the claimant may ultimately receive a total amount greater than the amount that he or she would have received had the lump sum not been granted. Because that is so, you ask whether, when a lump-sum payment is granted, the claimant is barred from receiving additional benefits before the time when the original award would have been completely paid out in periodic payments at the rate originally set by the award.

Article 101, §49, which authorizes lump-sum payment of workers' compensation, requires that subsequent periodic payments of total disability or dependency benefits be reduced to take account of the lump-sum payment. By that means, the date on which the original award is fully paid and the total amount of compensation ultimately paid to the claimant are left unaffected by the grant of the lump sum.

As originally enacted, Article 26A, §13 provided that "[a]ny award made under this Article shall be paid in accordance with the provisions of Section 36 and other applicable sections of Article 101 . . . ." Chapter 455, Laws of Maryland 1968. However, §13 was amended in 1973 "to allow the Criminal Injuries Compensation Board to make the manner of payment of awards at their discretion . . . ." Chapter 563, Laws of Maryland 1973.19

Thus, §13 now provides that awards of criminal injuries compensation "shall be paid in accordance with the discretion and decision of the Board as to the manner of payment."

That amendment was enacted in the same session of the General Assembly as the requirement that periodic payments of workers' compensation be reduced if a lump-sum payment is made. See Chapter 671, Laws of Maryland 1973. Taken together, those two enactments clearly evidence a legislative determination that Article 101, §49 should not apply of its own force to criminal injuries compensation awards. Hence, while periodic payments of workers' compensation must be reduced following any lump-sum payment, periodic payments of criminal injuries compensation need not be.

This difference in treatment reflects the fundamental difference between the two systems of compensation: Criminal injuries compensation is based on the claimant's financial need, while workers' compensation is not. Compare Williams v. Criminal Injuries Compensation Board, 307 Md. at 614, with Oros v. City of Baltimore, 56 Md. App. at 690. Accordingly, the Criminal Injuries Compensation Board is given discretion to determine the manner in which an award should be paid, in order that it may appropriately meet the needs of persons entitled to awards.

Still less do we think that the Board is required to completely deny additional periodic payments after it grants a lump sum. Article 101, §36(1)(a) and (8)(a) both expressly provide that, if the claimant's total permanent disability or total dependency on the decedent continues after the claimant's receipt of $45,000, compensation payments to the claimant are to continue at the original weekly rate. Those provisions do not indicate that the grant to the claimant of a lump sum after the date of the original award should produce any "gap" in compensation between the claimant's receipt of $45,000 and the beginning of weekly payments based on the claimant's continuing disability or dependency.

Nor, under those provisions, is there a definite total amount of compensation to which a permanently totally disabled person or a totally dependent survivor is limited. To the contrary, the provisions for continued payment throughout the period of disability or dependency effectively repealed the prior $45,000 ceiling. See McKenzie v. C.C. Kottcamp & Sons, Inc., 69 Md. App. 413, 420 n.3 (1986). Thus, the compensation provisions applicable to criminal injuries compensation evidence an intent that compensation for total disability or total dependency should be coextensive with the claimant's financial need for that compensation.

Moreover, the stated purpose of criminal injuries compensation is to provide assistance to crime victims or their dependents who would otherwise "incur financial hardships or become dependent upon public assistance." Article 26A, §1. Even a temporary suspension of a claimant's right to seek continued benefits would, to at least some extent, undermine the purpose of the Act by withdrawing the assistance it was intended to provide from a claimant who is in continuing need of that assistance. Under those circumstances, we believe that a claimant who receives a lump-sum payment award is not thereby precluded from receiving continuing benefits before the date when the original award would have been fully paid in periodic payments.

Where the initial award grants compensation for partial, rather than total, disability or dependency, there is a statutory limit on the amount of that award. See Article 101, §36(3)(a) and (f), (4)(a), and (8)(b). Hence, in those cases, any request for additional compensation after the original award has been fully paid can be granted only pursuant to the Board's statutory authority to "reinvestigate or reopen" claims. Article 26A, §4(d). Because that power may be exercised "as the Board deems necessary," we believe that the Board is authorized to grant a supplemental award whenever it finds such an award to be necessary, even if that is before the date on which the original award is fully paid or would have been fully paid in periodic payments.

Because a reopening of a case is authorized only when necessary, a supplemental award may be granted only when the claimant produces persuasive evidence to show that he or she genuinely needs benefits in addition to those originally granted. Thus, such an award ordinarily may be granted only where the claimant's circumstances have worsened significantly since the original award was granted or where the claimant produces evidence not previously available to show that he or she will incur losses as a result of the injury that were not apparent at the time of the original award.

In addition, we believe that the potential impact of a lump-sum payment on the Board's resources is a factor that should be considered in determining whether to grant a request for such a payment. Under Article 26A, §12(a)(2), the Board is prohibited from making any award "unless funds are appropriated and available for the full amount of the award." If, because of a lump-sum payment, one claimant receives substantially more compensation than originally anticipated, the Board might subsequently be unable to grant an award to another, equally seriously harmed claimant because of a lack of sufficient available funds. See 68 Opinions of the Attorney General 222, 225-26 (1983). Accordingly, the Board should take care in considering a request for a lump-sum payment to assure itself that the requested payment is necessary and appropriate in light of the claimant's circumstances and that the benefit to the claimant will not be significantly outweighed by the burden of the payment on the Board's financial resources. Cf. Petillo v. Stein, 184 Md. at 653 (Workers' Compensation Commission should be careful to see that no damage is done to employer or insurer's fundamental rights by granting request for lump-sum conversions).

III
Set-Off of Benefits From Other Sources

Article 26A, §12(d) requires the Board to set off payments that a claimant may receive from other sources against the amount of an award to which the claimant would otherwise be entitled:

"Any award made pursuant to this article shall be reduced by the amount of any payments received or to be received as a result of the injury (1) from or on behalf of the person who committed the crime, (2) from any other public or private sources, including an award of the Workmen's Compensation Commission under Article 101, (3) as an emergency award pursuant to §11 of this article."

The legislative intent underlying this provision is to make the State's program of criminal injuries compensation the "payor of last resort" for victims of crime. You have asked whether, to effectuate that intent, the Board may or must investigate the availability to each claimant of alternative sources of compensation and require claimants to seek payment from those sources as a prerequisite to the grant of an award. You further ask whether this provision requires the Board to set off against its award the amount of payments that the claimant may be entitled to receive from all other available sources.

A. Required Investigation

Article 26A, §8(b) provides that, when a claim is filed, the Board member to whom the claim is assigned "shall thereupon cause an investigation to be conducted into the validity of the claim." See also Article 26A, §8(c) and (d) and §9(b). Thus, the Board is explicitly required to perform its own investigation of the particulars of every claim filed with it. Criminal Injuries Compensation Board v. Remson, 282 Md. 168, 178 (1978).

Clearly, the elements that the Board must investigate include those that pertain to a claimant's basic eligibility, for example, whether a crime was committed and whether the claimant is a person described in one of the provisions of §5 that designate eligible persons. However, we think that the required investigation into the "validity" of a claim is not limited to the claimant's basic eligibility. Under the Act, a claimant who meets the basic eligibility standards nonetheless may not be entitled to an award or may not be entitled to the full amount of compensation claimed. For example, if the Board determines that the crime victim's own conduct contributed to the infliction of his or her injury, §12(e) requires the Board to reduce any award or to reject the claim altogether in accordance with that determination.20 Similarly, if the Board finds that the claimant did not report the crime to police or unjustifiably delayed more than 48 hours in reporting the crime, the Board is prohibited from making an award. Article 26A, §12(a)(1).

We think that these factors clearly affect the validity of the claim to compensation, in the sense that they affect the claimant's entitlement to compensation. The availability to the claimant of other sources of compensation for his or her losses affects the validity of the claim to compensation from the Board for those losses in the same sense. Hence, the Board's investigation of each claim before it must include its ascertaining whether other sources of compensation are available to the claimant, just as the Board's investigation must include its ascertaining whether other factors may require it to reduce or deny an award.21

B. Referral of Claimants to Other Compensation Sources

To enable the Board to ascertain whether a claimant is in fact entitled to other benefits and to ascertain the amount of those benefits, the Board may require that a claimant make application for compensation from other sources available to him or her as a prerequisite to the grant of criminal injuries compensation. For example, when it appears from the circumstances of the alleged crime that the claimant is entitled to workers' compensation, the Board's practice is to refer the claimant to the Workers' Compensation Commission and defer further action on the claim pending that Commission's determination.22 Likewise, claimants who are covered by insurance that will pay for their medical care or compensate them for their injuries are required to apply for those benefits, and the Board defers action on those claims pending determination of the insurance applications. This practice, in our view, is entirely correct and should be continued.

Ordinarily, however, the Board does not require a claimant to institute legal action against persons who may be liable to him or her in tort as a prerequisite to an award. A crime victim or the victim's survivors undeniably have a cause of action against the assailant who caused the victim's injury or death and may have a cause of action against a third party. However, the likelihood of recovery through such an action is far more speculative than the likelihood of recovery from workers' compensation, medical assistance programs, or insurance.

Assailants, if their identities are known, generally lack resources from which to pay a judgment. Indeed, the extremely low probability of a crime victim's recovery against the criminal in tort was an important impetus behind the original enactment of crime victims' compensation programs. Note, Crime Victim Compensation: The New York Solution, 35 Alb. L. Rev. 717, 719-20 (1971). Proving that a third party was in some way responsible for the assault may be extremely difficult. And, in any case, obtaining recovery through law suits is a time-consuming process. Thus, a requirement that claimants pursue their tort claims in court as a prerequisite to awards would in most cases substantially contravene the goal of criminal injuries compensation to provide expeditious assistance to crime victims and their families who are in serious need of assistance. Accordingly, we think that the Board may properly act on a claim without requiring the claimant to institute and await the outcome of a suit against the assailant or a potentially liable third party.23

C. Reduction of Award

Under Article 26A, §12(d), the Board is required to set off against its award not only the amount of payments that the claimant has received at the time of making the award, but also the amount of payments "to be received." That provision clearly requires the Board to take account of future compensation due the claimant, as well as compensation already received.

At the same time, we do not think that the Board is required to reduce an award on account of possible future payments from another source that are essentially speculative, like the possibility of recovery in tort. In our view, the phrase "to be received" denotes payments as to which there is at least some measure of definiteness, in that the claimant's entitlement to and future receipt of the payments is substantially certain. Put another way, we do not think that the Board is required to reduce its award on the basis of mere possibility.24

A more difficult situation arises from the interplay between criminal injuries compensation and federal Supplemental Security Income ("SSI") benefits, in light of the State's receipt of grant money under the federal Victims of Crime Act (the "VOCA"), pursuant to 42 U.S.C. §10602. SSI benefits are provided for aged, blind, or disabled persons whose income and resources are limited. 42 U.S.C. §1382(a); 20 C.F.R. §416.110. Hence, when a person of limited means is disabled by criminally inflicted injuries, that person may well be eligible for both SSI benefits and State criminal injuries compensation.

In calculating an individual's income to determine SSI eligibility, the Social Security Administration is required to exclude from consideration "assistance, furnished to or on behalf of such individual . . ., which is based on need and furnished by any State or political subdivision of a State . . . ." 42 U.S.C. §1382a(b)(6). Conversely, assistance based on need that is not "wholly funded by a State or one of its political subdivisions" is ordinarily considered part of the individual's income. See 20 C.F.R. §416.1124(c)(2).

Assistance to crime victims under Article 26A is, of course, quite explicitly based on need. Article 26A, §§1 and 12(f)(1). Before the enactment of the VOCA, criminal injuries compensation was funded wholly by the State. Therefore, it was excluded from consideration in the Social Security Administration's calculation of the recipient's income for the purpose of determining his or her entitlement to SSI benefits. Under those circumstances, the Board calculated the amount of an award to which it found the claimant entitled under Article 26A, subtracted the amount of SSI benefits that the claimant had been found entitled to, and made an award of the difference, if any. The claimant received at least the total amount of benefits to which the Board had found him or her entitled, but received part or all of that amount in SSI benefits.

Because the State's criminal injuries compensation program is now funded partially by the federal government, however, benefits received under Article 26A are now counted as income in determining SSI eligibility. Hence, it appears that the Board's grant of even a partial award may lead to a reduction of the recipient's SSI benefits. If, following such a reduction, the Board increases its award to restore the claimant's total compensation to the amount to which he or she is entitled under Article 26A, SSI benefits may be further reduced. Ultimately, the Board may find itself paying the full amount of criminal injuries compensation to a crime victim to whom, under prior law, it would have paid only partial compensation.25

Article 26A, §12(d) clearly prohibits the Board from granting compensation that duplicates benefits from any other source. The broad language of §12(d)(2), requiring the Board to offset payments "from any other public or private source," reflects the Act's purpose of providing compensation for economic losses to innocent crime victims who would not be compensated otherwise. See Criminal Injuries Compensation Board v. Gould, 273 Md. at 495-96 (Article 26A was enacted to permit unreimbursed crime victims to be compensated). Therefore, the Board may not simply disregard a claimant's entitlement to SSI benefits in calculating its own award.

Nor may the Board treat benefits due but not yet paid under SSI as payments not definitely "to be paid" for the purpose of Article 26A, §12(d), on the ground that the SSI benefits may be withdrawn. SSI benefits may be withdrawn only after the Social Security Administration makes a determination that the recipient is not eligible for the benefits and provides the recipient with notice of that determination and of the recipient's right to seek review of the determination. 20 C.F.R. §416.1404. Accordingly, the Board must reduce its award by the amount of any SSI benefits that the claimant is entitled to receive. If the claimant's SSI benefits are subsequently reduced, the Board may exercise its authority under Article 26A, §4(d) and reopen the case for the purpose of increasing the award as necessary.26

IV
Conclusion

1. The Criminal Injuries Compensation Board may grant awards for disfigurement, even where it finds no other compensable loss. However, the Board may do so only if it finds that the disfigurement will cause the claimant to incur serious financial hardship from loss of income or from out-of-pocket expenses or that the serious financial hardship requirement is inapplicable under Article 26A, §12(f)(2).

2. The Board may order payment of a permanent disability or loss of support award wholly or partially in a lump sum if the evidence before it, as set forth in its decision, shows that the requested lump-sum payment is necessary to provide for the living or business needs of the claimant. The Board may subsequently grant the claimant additional monthly benefits before the date on which the original award would have been paid, if the claimant's circumstances make the additional benefits necessary.

3. The Board is required to reduce each of its final awards by the amount that the claimant has received or definitely will receive from any other source of compensation. Therefore, the Board is required to ascertain in each case whether there are any such alternative sources of compensation, and the Board may and generally should require the claimant to seek compensation from those alternative sources as a prerequisite to its grant of a final award.

J. Joseph Curran, Jr., Attorney General
C.J. Messerschmidt, Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

Editor's Note: In Chapter 250 (House Bill 823) of the Laws of Maryland 1988, the General Assembly made significant changes in the composition and procedures of the Criminal Injuries Compensation Board. In particular, the Board now "recommend[s] a tentative decision" only; the Secretary makes the final agency decision. Article 26A, §8(d) and (f).

1 A provision of the federal Victims of Crime Act prohibits states from using grant money received under that Act to supplant State funds that would otherwise be used to compensate crime victims. 42 U.S.C. §10602(b)(3). As it works to eliminate its backlog of claims, the Board may make an unusually large number of awards in one year, the number in succeeding years dropping to a level reflecting the number of claims actually filed in those years. You originally asked whether the rise and concomitant fall in the amount of money awarded would be viewed by the federal Office for Victims of Crime, which administers the Victims of Crime Act, as evidence of "supplantation," rendering the State ineligible for further grants under the Act. However, you have since received assurance from that office that the anticipated reduction resulting from elimination of the backlog will not violate the Act's nonsupplantation provision. Letter from Charles M. Hollis, Program Manager, Office for Victims of Crime, to John J. O'Neil, Assistant Secretary of Public Safety and Correctional Services (June 24, 1987).

2 We thus agree with advice previously given to the Board that it has authority to grant awards for disfigurement in appropriate cases, that is, when the disfigurement will cause the claimant to suffer serious financial hardship. Letter of Assistant Attorney General Valerie V. Cloutier to Martin I. Moylan, Executive Secretary, Criminal Injuries Compensation Board (October 14, 1982); Letter from Assistant Attorney General William C. Rogers, III, to Martin I. Moylan, Executive Director, Criminal Injuries Compensation Board (May 7, 1982). However, neither of those letters of advice directly addressed the factual findings by the Board necessary to establish a basis for concluding that a particular claimant will incur serious financial hardship as a result of disfigurement. That matter is discussed in Part I C below.

3 "Although workmen's compensation in its origin was contemplated simply as a wage-loss insurance payable during actual disability, it has imperceptibly evolved into a process of payment for physical impairment, often regardless of actual or presumed loss of entire wages or earning capacity." Oros v. City of Baltimore, 56 Md. App. 685, 690 (1983).

4 However, §12(f)(2) provides that the serious financial hardship requirement does not apply in determining an award to a person injured, or to a surviving dependent of a person killed, while trying to prevent a crime or apprehend the perpetrator of a crime under certain circumstances.

5 Even under such circumstances, the claimant would meet the minimum standard of eligibility set by §7. That section prohibits an award "unless the claimant has incurred a minimum out-of-pocket loss of one hundred dollars or has lost at least two continuous weeks' earnings or support." Section 7 is framed in the alternative, that is, it does not preclude an award if the claimant incurred either the stated minimum out-of-pocket loss or the stated minimum past loss of earnings. Moreover, that section defines "out-of-pocket loss" to mean "reimbursed and unreimbursable expenses or indebtedness reasonably incurred for medical care, mental health counseling, funeral expenses, or other services necessary as a result of the injury upon which such claim is based." Thus, §7 does not itself preclude an award in a case in which the claimant incurred expenses or indebtedness of at least $100, even if those expenses were reimbursed by insurance or another payor and the claimant incurred no past loss of earnings or support. Cf. Archer v. Crime Victims Compensation Board, 305 N.W.2d 259, 260 (Mich. App. 1981) (purpose of provision is to limit claims to those having minimum value, not to deny compensation to claimants who qualify under other sections).

6 Notably, §12(b) does explicitly preclude the Board from increasing a claimant's award to take account, pursuant to Article 101, §66, of the combined effect of the criminal injury and a preexisting condition.

7 Of course a claimant whose injury-caused expenses, whether reimbursed or unreimbursed, did not total at least $100, and who also did not lose at least two weeks' earnings or support, is not eligible for any award at all. Article 26A, §7. See also note 5 above.

8 In view of the serious financial hardship requirement, however, the Board could not give the presumption conclusive effect: §12(f)(1) would prohibit the Board from granting an award for disfigurement if the Board found that the disfigurement would not in fact diminish the claimant's earning capacity. At most, therefore, such a presumption would have made it easier for a claimant to prove his or her entitlement to compensation for disfigurement.

9 Article 49B, §16(a)(1) specifically prohibits employers from discharging, refusing to hire, or otherwise discriminating against an individual in the "compensation, terms, conditions, or privileges of employment" on the basis of such a handicap. In addition, §16(a)(2) prohibits limiting, segregating, or classifying employees or applicants on the basis of handicaps "in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee. . . ." Similar provisions of §16 apply to employment agencies and labor organizations.

10 A person who has been the victim of employment discrimination may file a complaint with the Human Relations Commission, and the Commission has power to require reinstatement or hiring of the victim of discrimination with back pay in an appropriate case. Article 49B, §11(e).

11 The Board's regulations place the burden of proving entitlement to an award upon the claimant. COMAR 12.01.06B. Such an assignment of the burden of proof is clearly appropriate as to this matter in the context of criminal injuries compensation, where the claimant has readier access than the Board to relevant evidence. Therefore, we think that a claimant who seeks compensation for disfigurement has the burden of proving that, to a reasonable probability, the disfigurement renders the claimant unable to perform the duties of his or her accustomed occupation. That does not, however, relieve the Board of its statutory duty to fully investigate all claims accepted for filing. Article 26A, §8(b); Criminal Injuries Compensation Board v. Remson, 282 Md. 168, 178 (1978).

12 The findings that the Board must make with regard to compensation for disfigurement are thus similar to those required for compensation under Article 101, §36(4) for disabilities not specifically enumerated. Unenumerated disabilities must be compensated on the basis of "the portion or percentage by which the industrial use of the employee's body was impaired as a result of the injury . . . tak[ing] into consideration, among other things, the nature of the physical injury, the occupation, experience, training and age of the injured employee at the time of the injury. . . ." Article 101, §36(4)(a).

13 This is not by any means to say that disfigurement may not have serious adverse effects on a crime victim's life in other ways than in loss of earning capacity. In many cases, disfigurement may have significant psychological or social effects even though it does not lead to the loss of a job or promotion. However, cosmetic surgery may often be able to eliminate or greatly reduce a crime victim's scars, thereby alleviating their psychological or social effects, or, indeed, their effect on the victim's earning capacity. In those cases, the cost of cosmetic surgery would be compensable as an expense "reasonably incurred for medical care ... or other services necessary as a result of the injury upon which [the] claim is based." Article 26A, §7. Similarly, the Board is expressly authorized to reimburse eligible claimants for the reasonable expense of psychological counseling. Id.

14 In Redden, the Court of Appeals noted the inadequacy of an agency's statement of the basis of its decision where the agency merely recited certain undisputed facts and repeated statutory language as its findings. In remanding the case, the court suggested a format for the agency's decision that would ensure its compliance with its obligation to make basic findings:

"[A]n acceptable format for the Board's findings and conclusions upon the remand would be to set out its finding that the particular requirement had, or had not, in its opinion, been established by the applicants and then add 'because the Board finds the following facts to be true:' (Insert facts here) 'and does not accept as true the following testimony:' (Insert the rejected testimony here)." 270 Md. at 685.

The Criminal Injuries Compensation Board could adopt a similar format for its findings on such questions as whether a claimant's injury will cause serious financial hardship.

15 Section 13 also provides that awards "shall be paid in accordance with the discretion and decision of the Board as to the manner of payment." In the exercise of that authority, the Board typically directs that periodic payments be made at monthly, rather than weekly, intervals.

16 Article 101, §49 provides, in terms similar to those of Article 26A, §13, for payment of awards other than temporary disability compensation in total or partial lump sums.

17 You specifically mention a case in which the claimant requested a lump sum for the purpose of making a down payment on a home. We do not know the particulars of the case to which you refer, nor have we found a Maryland case discussing the appropriateness of a lump-sum payment for that purpose. However, we are aware of cases from other jurisdictions both upholding and reversing lump sum payments of workers' compensation for such a purpose, depending on the particular circumstances of the claimant requesting it. Compare Kosgarian v. Fairmount Foundry Co., 42 A.2d 894 (R.I. 1945) with Livingston Oil Corp. v. Henson, 215 P. 1057 (Okla. 1923). Thus, we think that the Board must determine the appropriateness of granting a lump sum for that purpose by reference to the circumstances of the particular claimant.

18 You note that the Workers' Compensation Commission often holds hearings on applications for lump-sum payments. Those hearings may be held at the request of the employer or insurer who may be required to make the payment or on the Commission's own motion. COMAR 14.09.01.14C. Because proceedings before the Criminal Injuries Compensation Board are ex parte, they do not involve a private party who may be obligated to pay the claimant and whose rights must therefore be protected. Accordingly, the Board is not required to conduct a hearing to determine whether a requested lump-sum payment is appropriate. Indeed, the Act does not require the Board to hold a hearing before deciding whether to grant or deny a claim in the first instance. Article 26A, §8(d) and 9(b).

19 That Act also added the last sentence of §13, explicitly "permitt[ing] the Board to make payment of awards in partial or total lump sum." Id.

20 That provision does not apply, however, where the nature of the victim's "responsibility" is his or her efforts to prevent a crime or to apprehend a person who had committed a crime in the victim's presence or had committed a felony. Article 26A, §12(e).

21 The Board's present practice is to require the claimant, as a part of the application for an award, to provide information concerning his or her entitlement to compensation from alternative sources like insurance, workers' compensation, and medical assistance programs. This requirement is entirely appropriate. However, it does not preclude the Board from inquiring further into the particulars of a claimant's situation when that appears to be necessary, nor relieve the Board of its statutory duty to investigate the validity of each claim filed. See note 6 above.

22 The determination of the Workmen's Compensation Commission as to an individual's entitlement to compensation under Article 101 is binding on the Board. Criminal Injuries Compensation Board v. Gould, 273 Md. 486, 519 (1975).

23 Of course, if the Board makes an award without regard to possible tort recovery and the claimant subsequently does recover a judgment, the claimant must reimburse the Board for its award. Article 26A, §15.

24 We do not mean to suggest, however, that the Board may always disregard tort recoveries. Where a claimant has obtained a judgment or settlement and the defendant has resources against which the judgment or settlement can be enforced, payment is substantially certain. Under those circumstances, therefore, any award that the Board might make must be reduced by the amount of the judgment or settlement.

26 Disability and survivors' benefits paid under ordinary social security are not based on need, but on the disabled person's or decedent's status as an "insured individual", that is, one who meets or met certain standards of employment experience. 42 U.S.C. §414. See also 42 U.S.C. §412(d), (e), and (f) and §423. Those benefits are not reduced if the disabled person or survivor also receives benefits from another source, although social security benefits may be reduced or ended on account of the disabled person's earnings or the cessation of a survivor's dependency. See 42 U.S.C. §402(d)(1), (e)(1), and (f)(1) and §423(e). Consequently, a crime victim's or survivor's receipt of ordinary social security benefits does not create this sort of problem: If those benefits are less than the amount to which the person is found to be entitled under Article 26A, the Board's grant of the difference will not affect his or her social security benefits. Of course, the Board must reduce its award by the amount of those social security benefits, just as it must reduce its award by the amount of benefits from private insurance. Article 26A, §12(d)(2).