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Restitution — Special Damages — Loss of Sick Leave

State v. Mark M. Loutsch, 2003 WI App 16, PFR filed 1/17/03; X-PFR filed 1/31/03
For Loutsch: Charles B. Vetzner

Issue/Holding:

¶12. The distinction between general and special damages as relevant to Wis. Stat. § 973.20(5)(a) is well established. “General damages” under this statute are those that compensate the victim for damages such as pain and suffering, anguish or humiliation, while “special damages” encompass “`harm of a more material or pecuniary nature.’ [Citation omitted.]” State v. Holmgren, 229 Wis. 2d 358, 365, 599 N.W.2d 876 (Ct. App. 1999). The ultimate question in deciding whether an item of restitution is “special damages” within the meaning of the statute is whether it could be recovered as special damages in a civil proceeding. State v. Rouse, 2002 WI App 107, 12, 254 Wis. 2d 761, 768, 647 N.W.2d 286. In deciding whether the loss of Asp’s sick leave is a “special damage” within the meaning of § 973.20(5)(a), we bear in mind that the purpose of restitution is to return victims of a crime to the position they were in before the defendant injured them. Holmgren, 229 Wis. 2d at 366. We therefore construe the restitution statute broadly to allow victims to recover their losses resulting from the criminal conduct. Id.

¶16. We conclude that determining the monetary value of the sick leave Asp used involves no more speculation, and arguably involves less, than determining the amount of future lost earning capacity. The precise number of hours Asp used as a result of the injury is known, and it is certain that Asp will not have those hours available to him upon retirement to pay for his health insurance premiums. The precise formula by which those 552 hours would have been converted to dollars to pay for health insurance premiums upon retirement is also known. Hourly wage at the time of retirement may be estimated or, as in this case, the current wage may be used: it is reasonable to infer that Asp’s hourly wage at retirement will be no lower than his present hourly wage.

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