(Re) 1607-04217, 2017 ONCICB 18

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Gemma Harmison
Date: February 01, 2017
Indexed as: (Re) 1607-04217

ORDER

Introduction

1The Applicant filed this application to the CICB in connection with an incident that happened on [date], 2016 when she was physically assaulted by the Offender, as will be described in further detail below.

2The Applicant is claiming compensation from the CICB in the form of an award for pain and suffering, as for treatment expenses and income loss.

3The following summary is based upon a combined review of the Applicant’s written submissions to the CICB in conjunction with police records, treatment reports, and other information on file with the CICB.

4On the incident date, the Applicant had just returned home after picking up her young daughter from daycare. The Applicant exited her vehicle and as she was standing on her driveway she heard a man (later determined to be the Offender) yelling profanities at a girl across the street. The Applicant asked the Offender to stop yelling profanities, given that her young daughter was nearby. The Offender then proceeded up the driveway and he punched the Applicant once in the face on the left side of her jaw with sufficient force so as to cause the Applicant’s head to tilt backwards. The Offender immediately left the scene. The Applicant ran to her neighbour's home for help. The neighbour's daughter called police while the neighbours followed the Offender and observed him enter a nearby home. Police arrived and arrested the Offender at his home. As per the Police Records on file the Offender was arrested and charged with Assault Level 1 (i.e. contrary to s.266 of the Criminal Code) and the CICB has confirmed that the Offender was convicted of that charge.

5In her statement to Police, the Applicant described that her jaw was sore, red and swollen and that it hurt to speak or swallow. Medical clinic records indicate that the Applicant was seen at the clinic the day after the assault on [date], 2016. The Applicant told the clinic Physician that paramedics had attended the scene on the incident date and they had given her ice and offered to take her to the hospital but she declined. The Applicant told the Physician that she had gone to work as scheduled the day of her appointment [date] but that she had been sent home early and that she was next scheduled to work a half day shift that [date]. On examination the Physician noted that there was an obvious small amount of swelling evident in the mid aspect of the Applicant’s jaw. The Physician wrote that her jaw movement was “full and pain free” but that the swollen area was very tender. The Applicant also reported experiencing a headache and neck pain at the time of the appointment. The Physician’s assessment was that the Applicant had suffered a soft tissue injury to her jaw which could be treated with ice and Advil. A medical certificate signed by the Physician was contained within the clinic records which indicated that the Applicant would be off work for her scheduled shift on [date] with the reason noted as “facial injury”.

6The balance of the medical clinic records predominantly pertain to the Applicant’s medical conditions unrelated to the assault, including severe lower back pain associated with DDD (degenerative disc disease) and OA (osteoarthritis) for which the Applicant was already working a modified schedule at work (half days 3 days per week) since [date] 2016 and for which the Applicant was required to provide her employer with ongoing medical forms. A clinic note of [date], 2016 indicates that the reason for the visit was for form completion and that at the appointment the Applicant reported that she was still experiencing a lot of low back pain and wanted a new form to give to her employer. A new form was provided which noted that the Applicant was to remain on modified duties (half days 3 days per week) from [date] to [date] at which time she would be reassessed. While the appointment on [date] focused mainly on the Applicant’s pre-existing back problem, there was also a notation concerning the Applicant’s assault-related injury to the effect that the Applicant’s jaw swelling had reduced and that her soft tissue jaw injury was improving. While subsequent appointments at the clinic also focused on the Applicant’s pre-existing back problem there were occasional references to the assault during those appointments including the appointment of [date], 2016 which noted that the Applicant reported feeling anxious for her and her children’s safety because of the assault, that she was interested in pursuing counselling and that the physician provided with a list for counselling services and also the appointment of [date], 2016 which noted that due to the assault the Applicant had been experiencing ongoing anxiety when outside her home such that she and her husband had decided to move.

7A Physiotherapy Assessment Report dated [date], 2016 indicates that the Applicant was assessed at the physiotherapy clinic on [date], 2016 due to a longstanding history of “back issues, previously bulging disc” and that the back pain had worsened over the Christmas period in [date] 2015. A letter from the same clinic dated [date], 2016 indicated that the physiotherapy assessment that took place on [date], 2016 was for injuries unrelated to the assault however during the appointment some bruising was evident on the Applicant’s face and she voluntarily shared with the Physiotherapist that she had been assaulted by a man outside her home. The Physiotherapist wrote that the Applicant’s facial injury from the assault did not warrant or require physiotherapy treatment.

8In an addendum submitted with the CICB Application, the Applicant’s Lawyer submitted that on a physical level the Applicant still suffers from pain in her left jaw and neck. The Lawyer submitted that on an emotional/psychological level the Applicant remains nervous and anxious, that she often relives the assault in her mind, and that she continues to experience sleep difficulties including nightmares related to the assault. The Lawyer submitted that the assault greatly impacted the Applicant’s sense of safety in her home and in the community where she had lived for 8 years, and also affected the rest of the family’s sense of safety, such that the Applicant and her husband listed their home for sale and purchased a new home. The Lawyer indicated that the Applicant had been in contact with her Employee Assistance Program for counselling, however no corresponding counselling report or records were on file with the CICB.

Issues

9Given that the Offender was convicted, there is no question that the Applicant was the victim of an assault on the incident date. Accordingly, the CICB will focus its analysis and decision below on making an assessment of the Applicant’s injuries resulting directly from the assault and thereafter a determination as to an appropriate compensation award to be made in this case.

Analysis and Decision

10The CICB finds the Applicant to be compensable under section 5(a) of the Act.

11In assessing compensation for pain and suffering, the CICB has first taken into consideration the nature and surrounding circumstances of the assault. The Applicant was assaulted outside her own home, a place where a person should feel most safe and secure. She was assaulted by a complete stranger, who delivered a single but forceful punch to the Applicant’s left jaw. The CICB has taken into consideration physical injury resulting from the assault as documented in the medical evidence on file, namely soft tissue injury to her left jaw (pain, bruising and swelling), which was treated conservatively and which, absent medical evidence to the contrary, has not resulted in any permanent physical impairment. The CICB has also taken into consideration the emotional and psychological impact on the Applicant as a result of the assault including anxiousness, unease being outside her home, fear for her and her family’s safety (such that the family decided to sell their home), intrusive thoughts about the assault, and sleep difficulties including nightmares. The CICB accepts that her emotional/psychological injuries associated with the assault were not merely occasional or short term in nature but rather were more persistent and prolonged. Having considered all of the foregoing, the CICB is compensating the Applicant in an amount of $4,500.00 as compensation for pain and suffering, finding this amount to be a reasonable award having regard to all relevant circumstances. Per the Direction of Funds signed by the Applicant, the award for pain and suffering in the amount of $4,500.00 is ordered payable to her Lawyer, In Trust for the Applicant.

12The CICB was provided with a copy of a payment receipt showing that the Applicant paid $90.00 for the physiotherapy assessment that took place on [date], 2016. As detailed above, the Physiotherapist indicated that the assessment that took place that date was for injuries unrelated to the assault. Since this expense was not incurred in relation to the injury resulting from the assault, this expense is denied.

13Under Part 4 of the Application, it was indicated that compensation was also being sought for dental expenses. No evidence was tendered to the CICB as to any dental injury or dental expense resulting from or related to the assault. Accordingly, no award is made for dental expenses.

14Under Part 10 of the Application, it was indicated that compensation was being sought for medication and counselling expenses (amounts not specified) however in the same section it was noted that the Applicant has coverage for these expenses under her insurance plan. No documentation was tendered to the CICB as to any out-of-pocket expenses incurred by the Applicant for medication or counselling expenses related to the assault. Accordingly, no awards are made in that respect.

15Finally, the Applicant also claimed for income loss. In the injury addendum enclosed with the Application, it was submitted the Applicant missed an entire week of work because of the assault. She was therefore claiming from the CICB one full week’s income loss. Based on a review of the information on file, at the time the assault happened on [date], 2016 the Applicant was already working a modified schedule (half days 3 days per week) since [date] 2016 due to her pre-existing back problem. As detailed in the medical clinic record of [date], 2016, the day after the assault, the Applicant had gone to work as scheduled that day but had been sent home. She was not scheduled to work the following day [date] and her next scheduled shift was for a half day on [date]. The Clinic Doctor provided her with a medical certificate/off work note for [date] specifically as a result of her facial injury. However, it is evident that the next medical certificate for the period commencing [date] was issued in relation to the Applicant’s pre-existing back problem and indicated that she was to remain on the same modified duties for another three weeks until her status was re-assessed. On the CICB’s standard Employer’s Report, it was indicated that the Applicant returned to work [date]. It is the CICB’s usual practice to compensate for income loss only when directly related to the injury sustained from the compensable crime of violence and, even then, the CICB generally compensates up to a maximum of $50.00 per day for income loss. Even if the CICB accepts that the Applicant was absent for part of her shift on [date] (when she was sent home early) and was absent for her next scheduled shift on [date] and possibly her following shift on [date] as a direct result of the assault, the Employer’s Report indicates that the Applicant received sick pay benefits in the amount of $463.10 for the period covering [date - date], and a further amount of sick pay benefits of $153.33 for [date]. These sick pay benefits are other benefits that the CICB must take into consideration as per section 17(3) of the Act. Having considered all of the foregoing, and given that the Applicant received sick pay benefits through her Employer for those dates, the CICB in exercising its discretion as conferred under the Act declines to make an award for income loss.

16It is the usual practice of the CICB to award up to a maximum of $400.00 as a contribution to legal fees where an applicant has a legal representative assisting them in making an application to the CICB. The CICB finds a contribution to legal fees in the amount of $400.00 to be reasonable and appropriate in this case and pursuant to section 22 of the Act hereby orders an amount of $400.00 payable to the Applicant’s Lawyer.

Award

17The CICB orders payment as follows:

Section 7(1)(d) Pain and Suffering $4,500.00

Section 22 Costs – legal fees $ 400.00

TOTAL AWARD AND COSTS $4,900.00

18The 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

19THE CICB ORDERS that the following sums be paid forthwith to:

Girones Lawyers In Trust $4,500.00

Girones Lawyers $400.00