Re 1303-91867, 2017 ONCICB 1

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: John Radmore Date: January 12, 2017 Indexed as: (Re) 1303-91867

ORDER

Introduction

1The Applicant brings this Application to the CICB in relation to injuries that he suffered as a result of an assault committed against him on [date], 2011. He has made claim for his pain and suffering, treatment expenses and loss of income.

2In written submissions to the CICB the Applicant advised that at the time of the incident he was outside a bar at closing time after an evening of socializing with friends. The Offender had been in the establishment but the Applicant had had no contact with him. The Offender approached the Applicant and punched him in the face causing the Applicant to fall to the pavement striking his head rendering him unconscious. He was transported to the hospital for treatment of his injuries.

3Police reports provide an account of the incident that is consistent with the Applicant’s written submissions to the CICB. The investigation led to the Offender being charged with aggravated assault contrary to section 268 of the Criminal Code of Canada. He was convicted of assault causing bodily harm contrary to section 267(b) of the CCC.

Evidence

4[Name] Hospital reports indicate that on the incident date the Applicant arrived at the facility by ambulance in an unconscious state with suspected head injury. A CT scan revealed a left sided subdural hematoma and a left frontal contusion. He was intubated and due to the severe brain injury the Applicant was transferred to [Name] Health Centre.

5The Hospital reports reveal that on the incident date the Applicant was transferred with a closed head injury. A CT scan revealed a left sided subdural hematoma and a frontal contusion with one millimeter of shift. The Applicant was intubated and transferred after consultation with a neurosurgeon. His discharge diagnosis was “a severe brain injury”.

6The other Hospital reports indicate that on the incident date the Applicant was admitted to the intensive care unit with a closed head injury. It was determined that his injuries could be treated conservatively. He had headaches that gradually improved throughout his hospitalization. At the time of discharge on [date], 2011 the Applicant’s headaches were mild and he was alert without neurological deficits.

7Neurologist [name] provided the CICB with medical reports pertaining to the Applicant’s follow up appointments. On [date], 2011 the Applicant reported a 2 day period of post trauma amnesia. Following his hospitalization he experienced headaches, nausea and occasional vomiting for approximately one month. He had also had one episode of dysphasia. The Applicant was advised not to return to working night shift for two or three months as sleep pattern disturbances could increase the risk of seizures. On [date], 2012 the Applicant reported having had symptoms affecting his upper body that included numbness in his fingers. Arrangements were made for spinal scans. On [date], 2012 the Applicant reported that his previously reported symptoms had resolved one month earlier. CT scans showed mild degenerative changes at the C4-5 and C5-6 level but no spinal cord abnormalities. No further neurological follow up was deemed necessary.

8The Applicant’s Family Physician provided the CICB with a medical report that indicates that the Applicant continues to experience “on and off” headaches and neck pain. The report indicates that the Applicant was unable to work until [date], 2012 due to his injuries.

9In a self-report of injuries the Applicant described injuries that are described in the submitted medical reports. In addition he advised that the incident has left him hypervigilant and paranoid of suffering another head injury. During his recovery period he was unable to participate in previously enjoyed activities or in household chores. His symptoms led to him missing time at University. Missed time and deficits stemming from his head injury led to failed exams and delayed his graduation for one year.

Claims

10Ambulance: $45.00

11Medication: Unspecified.

12Loss of Income: The Applicant has claimed $7,000.00 for loss of income for two months. The Applicant has indicated that he was working part time and attending school. He submitted bank statements that indicate that he had a bank deposit of $900.00 in November 2011, $1,029.50 in December 2011, $1,424.10 and $1,839.70 in January 2012, and $1,081.05 in February 2012. Revenue Canada reports provide the following information:

• 2009- $16,373.00 net business income (33,689.00 Gross)
• 2010- $21,792.00 net business income ($43,842.00 Gross)
• 2011- $7,399.00 net business income ($28,006.00 Gross).
• 2012- $23,602.00 net business income ($38,584.00 Gross).

13The Applicant’s Family Physician provided a disability period until [date], 2012. On [date], 2011 the [Neurologist] suggested that the Applicant not return to night shift work for a two to three month period.

Issues

14The CICB must determine the following:

• Whether the Applicant suffered injuries as a result of crimes of violence within the meaning of section 5(a) of the Act.
• If so, an appropriate level of compensation, if any, for the Applicant’s pain and suffering. Whether the Applicant should be compensated for the claimed expenses/income loss.

Analysis and Decision

15Having considered the evidence presented the CICB finds that the Applicant suffered bodily harm as a result of an assault. Accordingly, the CICB finds the Applicant to be a victim within the meaning of section 5(a) of the Act.

16In assessing compensation the CICB considered the violent and unprovoked nature of the assault, the serious head injuries sustained, the period of hospitalization, the period of recuperation, the physical issues that persist and the emotional impact that the crime has had upon the Applicant.

17The CICB was mindful of the negative impact on his personal life and scholastic endeavors. Having considered these factors, the CICB awards $10,000.00 for pain and suffering.

18The CICB also awards $45.00 for ambulance expenses.

19The Applicant’s claim for medication costs is denied on the basis that no receipts have been provided to the CICB.

20The CICB carefully considered the Applicant’s claim for income loss. The evidence submitted establishes that the Applicant was attending school and working part time. The submitted bank statement provide little assistance in establishing the Applicant’s income at the time of the incident as there were bank deposits during the claimed disability period. Canada Revenue reports indicate that there is a significant difference between his gross and net business income. For these reasons the submitted bank statements have not assisted in establishing income loss. The CICB also notes that the Applicant’s claim of $7,000.00 for income loss is inconsistent with Canada Revenue reports that indicate that the Applicant’s net income was $7,399.00 for the 42 weeks prior to the incident in 2011. The CICB accepts the disability period as per [Neurologist]’s suggestion would have extended into March 2012. As a result the CICB finds it reasonable to award income loss for a 25 week period [date - date] based on the Applicant’s 2011 net earnings. Accordingly, the CICB awards $4,404.00 (25 weeks @ $176.16/week) for income loss.

Award

21The CICB orders payment as follows:

Section 7(1)(a) Expenses (ambulance) $45.00 Section 7(1)(b) Income Loss $4,404.00 Section 7(1)(d) Pain and Suffering $10,000.00 TOTAL AWARD $14,449.00

22The CICB recognizes that no amount of money can adequately compensate victims for the injustice they have suffered but also finds the amount of the award to be reasonable within the context of the Act.

Payment

23THE CICB ORDERS that the following sums be paid forthwith to:

Jeffrey Raphael Professional Corporation In Trust $14,449.00