CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Gemma Harmison
Indexed as: (Re) 1210-90365
ORDER
Introduction
1The Applicant filed this Application with the CICB due to injuries that he sustained as a result of an incident that happened during the course of his duties as a Police Officer. He is claiming compensation from the CICB for pain and suffering, treatment-related expenses (and more specifically for gas/parking expenses and related costs in respect of his treatment appointments), and also for loss of vacation days that he used during his recovery period.
2The following is a summary of the information that was available and on file with the CICB which consisted of the Applicant’s written submissions and telephone communication with the CICB, Police and Court records, and a report from the Applicant’s Family Doctor.
3On the incident date, the Applicant responded to a break and enter in progress involving three suspects at food market located in a commercial plaza. The Applicant went to the rear of the plaza where he encountered two of the suspects as they were exiting a loading bay door. The events that followed were described in the Police Records as follows:
[The two suspects] engaged [the Applicant] by using their crow bars as weapons. One of the suspects fled in a southeasterly direction while the second suspect [the Offender] engaged [the Applicant] in a physical confrontation. During the resulting struggle, [the Offender] attempted to disarm [the Applicant] by attempting to remove his sidearm [police issued firearm] from its holster…[The Offender] was eventually subdued with the assistance of other officers…K9 was used to clear the building but the remaining two suspects were not located.
4In his written submissions to the CICB the Applicant indicated that in addition to the above description, during the struggle he had also been punched a number of times and had been put in a headlock. He wrote that the
assault was far in excess of the range of violence that is typically expected by a Police Officer in the performance of his or her duties.
5The Offender was ultimately charged with numerous offences in relation not only to this particular incident but other incidents as well. As per the Court records on file, in regards to his conduct specifically in relation to the Applicant the Offender was charged with the offences of (1) Assault Peace Officer with a Weapon or Causing Bodily Harm contrary to section 270.01 of the Criminal Code and (2) Attempt to Disarm a Peace Officer contrary to section 270.1 of the Criminal Code. The Court records show that the Offender pleaded guilty to and/or was found guilty of several charges including the aforementioned assault charge specific to the Applicant.
6In his written submissions to the CICB, the Applicant described his physical injuries as consisting of:
- swelling to the right side of his face, right ear and right side of his neck
- pain and loss of mobility in the areas of his neck, left ribs and chest/sternum cuts to both hands, both elbows and both knees
- pain, impaired mobility and weakness in his left elbow, forearm and thumb
- pain and impaired mobility in his right shoulder and back
- core muscle group strain (ribs/chest/sternum) and limited upper body mobility
7The Applicant advised the CICB that he was treated at the scene by EMS however he did not go to the hospital. He described that EMS cleaned his cuts and scrapes, and also cleaned/decontaminated his face, limbs and torso due to blood transfer from the Offender.
8The Applicant indicated that he remained on modified duties at work for a period of three weeks as he was unable to lift or do physical activity. He wrote that his “long term” injury was in relation to what he described as “ligament/tendon damage” to his left elbow, forearm and thumb. The Applicant went on to write that the incident also caused him mental stress and as well described how his injuries and recovery period affected his family’s vacation and household plans which was not only stressful for the Applicant but for his family as well.
9The medical evidence before the CICB was limited to a report completed by the Applicant’s Family Doctor. In the report, the Family Doctor described the Applicant’s physical injuries as consisting of chest and rib contusion; abrasions/cuts to his hands; left and right elbow strains; and abrasions and soft tissue swelling to the right cheek and ear. The Family Doctor saw the Applicant on 5 occasions between [date] and [date] 2012. At the time the report was completed ([date], 2012) the Family Doctor noted the Applicant was set to begin physiotherapy for ongoing left elbow pain. Although a guarded prognosis was offered at that time, the Family Doctor went on to specify a temporary impairment only.
10Although a physiotherapy report had been issued to the Applicant to have completed by his physiotherapist, a completed physiotherapy report was not before the CICB.
11The CICB also issued a report to the Applicant to have completed by the Workplace Safety and Insurance Board (WSIB). While a completed WSIB report was not before the CICB, the Applicant advised that he did not receive a Non-Economic Loss (NEL) award from WSIB (which is made by WSIB when there is medical evidence that establishes a degree of permanent impairment).
Issues
12The issues for the CICB to decide are whether and on what basis the Applicant may be eligible to compensation under the Compensation for Victims of Crime Act (the “Act”) and, if so, what amount of compensation the CICB considers reasonable under the circumstances.
Analysis and Decision
13The CICB finds that the Applicant sustained injury in circumstances that fall within section 5(b) of the Act in that he was injured while lawfully arresting or attempting to arrest the Offender for a property offence.
14In reaching a decision in this case, and based on the evidence available to it, the CICB accepts that the Applicant suffered a variety of soft tissue issues which required him to be on modified duties for a period of three weeks until he had sufficiently recovered and was able to resume his regular police duties. While the CICB also accepts that the Applicant experienced some ongoing left elbow pain such that his Family Doctor had referred him for physiotherapy (the exact number of sessions, length of treatment or prognosis unknown given the absence of a completed physiotherapy report), the CICB is not persuaded that the Applicant suffered ligament or tendon damage (as asserted by him in his written submissions), nor is the CICB persuaded that the Applicant has been left with any degree of permanent impairment. The CICB was not presented with any medical test results (e.g. x-rays, MRI) or any other medical evidence attesting to the presence of ligament or tendon damage, nor did the CICB have evidence attesting to any permanent impairment to the Applicant resulting from the injuries sustained in the incident.
15In arriving at a decision, the CICB accepts that an incident of this nature – a violent struggle with a suspect which included an attempt to disarm the Applicant – would reasonably and understandably have caused the Applicant some degree of psychological/mental distress.
16Based on all of the foregoing, and for the reasons set out above, the CICB finds an appropriate award for the Applicant for pain and suffering to be $3,000.00.
17In his Application, the Applicant did not list any out-of-pocket treatment expenses, and specifically noted that his treatment expenses were covered by WSIB, private insurance and OHIP. In a supplementary letter to the CICB, the Applicant expressed his view that the CICB should compensate him for his gas/parking expenses to attend treatment appointments and for the cost of his time and organization in arranging and attending such appointments. The CICB does not as a matter of practice compensate for these types of expenses where the injury was sustained during the course of employment and where an applicant has coverage available from other sources (i.e. WSIB). Further, this CICB will only consider compensating for costs associated with travel to treatment where an applicant is required to travel more than 40 kilometres one way (80 kilometres round trip) from their city of residence to attend treatment, which is not the case here. Seeing no reason to depart from its usual practices in this case, the CICB denies the Applicant’s claims in that respect, finding that an award for such claims is neither reasonable nor warranted under the circumstances.
18The Applicant also claimed for loss of vacation days. The CICB denies the Applicant’s claim in that respect as well. The CICB does not compensate or reimburse applicants for used vacation days, particularly when, as is the case here, there is no evidence of any actual loss incurred by the Applicant. Further, the Applicant had coverage for time off work available to him from WSIB and/or through his employer but, as described by him, he opted to use his vacation days “to avoid taking ‘injured on duty’ time in a misguided effort to preserve my employment record.” The CICB denies the Applicant’s request to be reimbursed for used vacation days, finding that an award in that respect is neither reasonable nor warranted under the circumstances.
Award
19The CICB orders payment as follows:
Section 7(1)(d) Pain and Suffering $3,000.00
TOTAL AWARD $3,000.00
20The CICB recognizes that no amount of money can adequately compensate applicants for the injuries they have suffered but also finds the amount of the award to be reasonable within the context of the Act.
Payment
21THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $3,000.00
DATED at Toronto this 1st day of February, 2017.
Gemma Harminson, Member