CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Gemma Harmison
Indexed as: (Re) 1507-00241
ORDER
Introduction
1The Applicant filed this Application to the CICB claiming compensation solely in the form of an award for pain and suffering in connection with an incident that happened on [date], 2015 during the course of his employment as a hotel security guard. The documentary evidence on file indicates that the Offender punched the Applicant once in the face. The Offender was also abusive and assaultive towards other (contracted) security guards as well as police officers who arrived on scene. Court records show that in relation to his conduct on the incident date the Offender was charged with numerous offences in respect of the Applicant and several other people. The Offender later pleaded guilty to a total of five charges, including a charge of Aggravated Assault in respect of the Applicant. The Offender received a custodial sentence in addition to probation.
Issues
2Given that the Offender was convicted of a violent offence in respect of the Applicant, there is no question that the Applicant was the victim of an assault on the incident date. The remaining issue for the CICB to decide is that of a determination as to the level/extent of injury caused to the Applicant as a direct result of this crime, and thereafter to decide an appropriate compensation award to be made to the Applicant.
Evidence
Applicant’s Description of Injury
3In his original Application, the Applicant wrote that he suffered multiple facial fractures of the orbit (eye socket), cheekbone and nasal septum. He wrote that he bled profusely from his eye and nose. He noted that he was transported to Hospital via ambulance. He wrote that his eye became infected and was swollen shut for a week. He indicated that he experienced difficulty eating and breathing; that his eyesight was affected because of the fractures; and that he continued to experience “arthritic pain” in the fractured areas.
4In a supplementary impact statement, the Applicant wrote that he suffered a fracture of the eye socket, and that his cheekbone and nasal septum were “re-fractured”. He wrote that his nose had previously been broken and operated on and indicated that a plastic surgeon had informed him that it was too risky to operate on his nose again. He wrote that he has difficulty breathing out of one side of his nose since that side of his nose is usually plugged. The Applicant also wrote that he continues to experience “rheumatic pain” and headaches due to the fractures, and that the nerves leading to his eye remain sensitive to touch.
Ambulance Report
5The Ambulance Report indicates that the Applicant was struck once in the face. He told paramedics that he was not knocked to the ground by the force of the blow, nor was he rendered unconscious. The Ambulance Report indicates that the Applicant had a past history of fractures (plural) to his nose, as well as a past history of a fracture of the left cheek due to a fall in 2011. The Ambulance Report indicates that in relation to the recent assault, the Applicant’s left cheek was swollen, he had a laceration to the corner of the left eye, and that he was bleeding from the left nostril.
Emergency Hospital Records
6The Emergency Hospital Records indicate that the Applicant was punched in the left cheek area. There was no loss of consciousness reported and the Applicant was described as alert and oriented. X-rays of the facial bones were taken and the corresponding x-ray report indicates that a fracture of the left zygomatic arch (cheekbone) was identified but that this was known based on history. The x-ray report also identified possible fractures of the orbital wall – age indeterminate – but noted that these may be “subacute/chronic as well”. A re-assessment note from the physician who reviewed the x-rays indicated “Nil acute” and indicated that the zygomatic arch (cheekbone) fracture was an “old”, “non-union” fracture. The emergency records denote a provisional diagnosis of facial trauma (peri-orbital hematoma) and further reveal that steri-strips were used to close the laceration at the corner of the Applicant’s eye and that the Applicant was given Tylenol #3 for pain control.
Family Doctor’s Report
7The Family Doctor wrote that the Applicant suffered a facial injury when he was punched in the face while working as a security guard. The Family Doctor indicated that the Applicant was seen at the hospital where x-rays showed “a facial fracture which was treated conservatively” (however the Family Doctor did not specify whether that fracture was old or new). The Family Doctor saw the Applicant on [date], 2015 (3 days post-assault) at which time the Applicant presented with severe swelling of the upper and lower eyelids and left side of the face. The Family Doctor provided the Applicant with antibiotic eye drops. Treatment was indicated as conservative only and no future treatment was required. The Family Doctor indicated that the assault-related injury resulted in a temporary period of impairment only, and offered a good prognosis with an estimated 2 week period of recovery. In the Report, the Family Doctor noted that the Applicant had suffered left sided facial injury in 2011 in connection with a fall in another province and that at that time the Applicant had been assessed by a plastic surgeon however corresponding notes were not available to the Family Doctor in that respect.
Analysis and Decision
8As noted above, there is no question that the Applicant was the victim of a violent offence on the incident date. The CICB must still however make a determination as to the level/extent of the injury caused to the Applicant in direct result of this crime.
9In his written submissions to the CICB the Applicant asserts that as a result of this crime he suffered multiple facial fractures to the orbit (eye socket), cheekbone, and nasal septum (in later submissions describing that his cheekbone and nasal septum were “re-fractured”). The medical evidence on file indicates that the Applicant has a past history of fractures (plural) to his nose as well as a past history of a left cheekbone fracture in 2011 due to a fall. The x-ray report taken on the day of the assault identified the presence of a zygomatic arch (cheekbone) fracture which was known based on history as well as possible additional orbital (eye socket) wall fractures of indeterminate age which were possibly “subacute/chronic as well”. The re-assessment note from the physician who reviewed the x-rays determined that there were nil acute fractures and that the zygomatic arch fracture identified on the x-rays was an old, non-union fracture. The Family Doctor’s report references a fracture being identified on the x-rays but does not specify or otherwise provide an opinion as to whether that identified fracture was new or old. Finally, none of the medical records on file make reference to either a new or “re-broken” nasal septum fracture as contended by the Applicant.
10Having considered and reviewed the evidence available and before it, the CICB is not persuaded using its standard of proof on a balance of probabilities that the Applicant suffered any new (acute) facial bone fractures, nor is it persuaded that the Applicant suffered “re-fractures” of any previously broken facial bones. The CICB does however accept and find that the Applicant suffered soft tissue facial injuries consisting of peri-orbital bruising and swelling as well as a cut to the corner of his eye which was closed with steri-strips.
11Having considered the nature and circumstances of the assault (which involved a single but forceful punch to the face by a stranger while the Applicant was simply performing his work duties), and taking into account the level/extent of the physical injury as accepted by the CICB above, the CICB finds an appropriate compensation award for pain and suffering for the Applicant to be $2,000.00.
Award
12The CICB orders payment as follows:
Section 7(1)(d) Pain and Suffering $2,000.00
TOTAL AWARD $2,000.00
13The 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
14THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $2,000.00
DATED at Toronto this 1st day of February, 2017.
Gemma Harmison