(Re) 1603-02900, 2017 ONCICB 185

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Jo-Anne Hughes
Date: July 19, 2017
Indexed as: (Re) 1603-02900

ORDER

Introduction

1In this case, the Applicant claimed that while working as a janitor, he was assaulted by a stranger in the [Name] subway station.

2In this case, the CICB is required to determine whether a crime of violence has occurred as per section 5(a) of the Act, what injury, if any, arose from it, and the relevant circumstances affecting whether or not compensation should be awarded and if so, the amount.

Incident

3In his March 2016 submission to the CICB, the Applicant wrote that he was working his janitorial overnight shift at [Name] station. About 3:00 a.m., a stranger, the Offender, broke into the station. The Applicant found the Offender inside the station and he “… asked the Offender if he needed help getting out of the station”. Then, the Offender started swearing and punching the Applicant for about ten minutes. The Applicant got away from the Offender and ran screaming for help. An ambulance took the Applicant to [Name] Hospital for treatment.

Evidence

Police Report

4The CICB received a Report from the [Name] Police Service in support of the Applicant’s claim. They confirmed that the Offender broke into the station and when the Applicant told him to leave, the Offender chased the Applicant around the station and assaulted him several times. The Applicant fell from a punch and that broke his hand. The Offender fled and was caught by officers.

5As a result of this incident, the Offender was charged with assault causing bodily harm, assaulting peace officers while resisting arrest x2, mischief and uttering threats. On [date], 2016, the Offender was convicted on the assault causing bodily harm and mischief charges and he was sentenced to a conditional discharge plus three years of probation.

Injuries

6The Applicant wrote that as a result of his beating, he was taken to [Name] Hospital by ambulance. He suffered from a broken right wrist, bruises all over his body and a cut on his left ear. During this incident, the Applicant became very afraid as the Offender kept saying that he was going to knock the Applicant’s teeth out and kill him.

7An emergency doctor re-set the Applicant’s broken wrist and a couple of weeks later it still wasn’t healing so he was referred to a specialist. On October 9, 2014, (nearly three months after the incident) the Applicant had surgery where a metal plate and six screws were put into his wrist.

8The Applicant wrote that as a result of this incident, he is depressed and stressed out because of his pain and suffering. He claimed that on a daily basis, he suffers from anxiety, sleep issues, fear of strangers, being alone and working alone. He claimed that he still suffered from pain in his right wrist, fingers and shoulder.

9The Applicant also claimed that he lost time at work, earnings and his vehicle was repossessed because his compensation was delayed. He claimed that he is now an unhappy person who is stressed out.

Medical Reports

10The CICB received two hundred pages of medical reports from the [Name] General Hospital in support of the Applicant’s claim. The Applicant presented with a complaint of pain to his right wrist and shoulder. A brief summary of the medical reports follows:

• [date]: An emergency report said the Applicant was repeatedly punched in the head and chest by the Offender. The ambulance report said he was punched and kicked by the Offender and as a result he had a fractured right wrist, a minor cut to his left temple, redness on the side of his face and a bruise on his left ribs.
• [date]: Dr. [Name] saw the Applicant with a good range of motion of his fingers of his right hand. The Doctor was concerned about the stability of the Applicant’s wrist and recommended surgery. However, the Applicant was not interested. An x-ray showed the Applicant’s left-mid rib numbers six was fractured as a result of this incident.
• [Date]: Dr. [Name] saw the Applicant for a follow-up to his wrist which he was suffering pain and tenderness. The Applicant was originally seen [date] with a stiff neck (which the Applicant reported was a common condition for him) and a small laceration on the back of his left ear which was closed with a steri-strip.
• [date]: Applicant was back at work on light duties
• [date]: Follow-up on fractured wrist; fracture collapsed with volar tilt
• [date]: Surgery on Applicant’s right wrist to install plate and screws.
• [date]: Follow-up from wrist surgery – moving wrist with no trouble
• [date]: Follow-up x-ray of right wrist
• [date]: frozen right shoulder diagnosis; history of frozen left shoulder
• [date]: frozen shoulder x-ray diagnosis
• [date]: In a visit to the Hospital, the Applicant was treated for a stiff “frozen” shoulder. A steroid shot improved his condition significantly. The Applicant was ready to return to work and he was accepted as a [new position] as opposed to a janitor.

11The CICB received a Report from [Hospital] which indicated that they had no health records for the Applicant.

Expenses

12The CICB received a Report, dated [date], 2016, from the WSIB which confirmed that they gave the Applicant a $962.09 Non-Economic Loss award for the broken wrist he received during this incident. This was determined as a result of a physiotherapy report (not received by the CICB) which showed that the Applicant had a “work related impairment of 2% “ for the permanent reduction of the range of motion in his right wrist.

13Also, since this was a workplace injury, any related claims (loss of income, medical or treatment expenses) which the Applicant has as a result of this incident, should be presented to the WSIB for consideration under their claims processing.

Analysis and Decision

14Section 11 of the Act states that proof of conviction shall be taken as conclusive evidence that the offence has been committed. The CICB finds that the Applicant is a victim within the meaning of section 5(a) of the Act as a result of a single incident of assault causing bodily harm.

15In assessing compensation for pain and suffering, the CICB has considered the nature of this incident and how it affected the Applicant. In this case, the Applicant was assaulted in his workplace by the Offender who broke in and chased and assaulted him for ten minutes. This assault included punches, kicks and threats of death. As a result, the Applicant suffered from a broken right wrist, a broken rib, bruises all over his body and a cut on his left ear. The Applicant declined wrist surgery after the incident, but had to get surgery three months after the incident due to ongoing wrist issues including a "fracture collapse with a volar tilt". The Applicant also claimed that nearly two years after the incident, he suffered from sleep issues, ongoing pain and fear of strangers. However, the Applicant provided no medical documentation to support these ongoing aspects of his claim. Also, the Applicant provided no documentation to support his claims of lost time at work, compensation delays which led to repossession of his vehicle.

16The Applicant’s claim was supported with Reports from Police, [Name] General Hospital and the WSIB. Considering this evidence and the submissions by the Applicant, the CICB assesses this award at $6,000.00

17In this case, the evidence indicates that the Applicant has already received monies on account of this incident/injury in the form of Non-Economic Loss award from WSIB in the amount of $962.09. The CICB is obligated to take these monies into account in accordance with section 17(3) of the Act, which reads as follows:

17(3) In assessing compensation, the CICB shall take into consideration any benefit, compensation or indemnity paid or payable to the applicant from any source other than general welfare assistance or family benefits.

18As the amount assessed by this CICB is greater than the amount already received by the Applicant in respect to the NEL award from WSIB, the CICB will order compensation payable to the Applicant for the difference between these two amounts in the sum of $5,037.91.

Award

19The CICB orders payment as follows:

Section 7(1)(d) Pain and Suffering $5,037.91

TOTAL AWARD $5,037.91

20The 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

21THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $5,037.91