CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Keith Forde
Indexed as: (Re) 1612-00715
ORDER
Introduction
1The Applicant asks the Criminal Injuries Compensation Board (CICB) to compensate him for injuries resulting from crimes of violence which occurred on [date], 2016, in accordance with the Compensation for Victims of Crime Act, RSO 1990, c.C.24, as amended (the “Act”). He is seeking compensation for pain and suffering incurred from an act of assault, perpetrated by the Alleged Offender. The Applicant is also claiming physiotherapy, travel to treatment and future expenses for counselling.
2The Alleged Offender was charged with assaulting the Applicant; however, he died before the case came to court. As such the charge was withdrawn.
Decision
3The CICB approves compensation to the Applicant in the amount of $5,000.00 for pain and suffering, $1,000.00 contribution for travel to treatment and $1,200.00 for future counselling, for the reasons set out below.
Issues
4The Applicant is required to prove, on a balance of probabilities, not only that she was a victim of a crime of violence, but also that as a result of this crime of violence, he suffered an injury pursuant to section 5(a) of the Act.
The CICB must assess all relevant circumstances and whether or not compensation should be awarded and if so, the amount; and
The CICB must determine whether the claim for physiotherapy, future counselling and travel to treatment is supported.
Evidence
The Applicant’s Evidence
5The following is a summary of the facts and circumstances taken from the Applicant’s Application information and from the [Name] Police Services correspondences to the CICB.
6The Applicant is a Personal Support Worker (PSW) at [Name] Retirement Residence in the [City]. The Applicant is alleging that the Alleged Offender who was a then resident of the home and now deceased, assaulted him while he was providing care to him on [date], 2016.
7On the day in question, the Applicant was working at the residence assigned to [ward] and was attending the Alleged Offender who was in room [number]. The Alleged Offender had been living at the residence for a number of years and has been diagnosed with early stage dementia. The Alleged Offender was confined to a wheelchair and required changing of incontinence products with assistance.
8The Applicant and another PSW were in the process of changing the Alleged Offender when the incident occurred. The Alleged Offender required the use of a lift when the PSWs changed him and that required them to get close to him. The PSWs had essentially completed the change when the Applicant had to reach across the Alleged Offender to lower him. It was at this time that the Alleged Offender punched the Applicant with a closed fist in "an uppercut" motion to the left side of his jaw. The blow caused the Applicant's head to "snap back". The Applicant said to the Alleged Offender, "you got me a good one" and the Alleged Offender responded, "next time I’ll kill you."
9The incident was immediately reported to administration of the residence and the Applicant went to the [Name] Regional Health Centre for medical assistance. The Applicant described his injuries as a soft tissue tear in the left side of his neck and a loose tooth. He has stiffness in his neck and could not turn his head to the left.
10Police investigators spoke with the Alleged Offender later in the day and arrested him for assaulting the Applicant. He was then released on his own promise to appear in court to answer to the charge.
11Police investigators noted that although the Alleged Offender in this matter had some form of dementia, he appeared lucid and able to interact with others. The Applicant's job often puts him in the way of patients/residents that required extra care and that can be agitated or even combative; however, in this case, Police believed that grounds clearly existed for the charge of assault to be laid.
12The Applicant also provided the CICB various documents in support of his claim.
13The CICB was in receipt of a Medical Report from Peterborough Regional Health Centre which noted that the Applicant presented with pain to his left jaw, swell and ring in left ear.
14The CICB was in receipt of a comprehensive Assessment of a WSIB Specialty Program at University Health Network Altum Health which the Applicant participated in on [Name], 2016. The Assessment was conducted by Neurosurgeon Dr. [Name]. The Applicant's chief complaints were the following:
Left-sided neck pain in the upper fibers of trapezius region that radiates to the clavicular area. He reported that this pain is constant and rated it between 7 /10 at best to 9/10 at worst on the Numeric Pain Rating Scale, where O is no pain, and 10 is the worst imaginable. Aggravating factors included bending the neck down and sitting for greater than 15 to 20 minutes. He reported that the pain is worse first thing in the morning. Easing factors included using the TENS machine and lying supine. [The Applicant] reported dizziness with bending the head down occasionally.
[The Applicant] denies any paraesthesias.
[The Applicant] denied any bowel or bladder dysfunction, nausea, dysphagia, dysarthria, or diplopia. The Applicant was diagnosed with the following injury:
Cervical strain secondary to annular tear at C5/6 with a baseline of degenerative disc disease at C5/6 and C6/7.
15The CICB was in receipt of a Medical Report from the Applicant’s Family Physician, Dr. [Name] who noted that the Applicant presented at his office with complaint of neck pain. Dr. [Name] prescribed the Applicant medication and recommended physiotherapy.
16The CICB was also in receipt of Physiotherapy Report.
Injuries
Physical
17The Applicant noted in his Application to the CICB the following:
3 tissue tears to left side of neck;
torn disc in neck;
whiplash;
left jaw injury;
restricted movement in neck for 2 months.
Psychological/Emotional
Hyper-vigilant;
loss of trust and self-confidence;
fearful of being blamed for incident;
fearful of professional consequences;
sleep difficulties due to pain,
stress and anxiety.
Analysis
18The fact that there has not been a conviction does not mean a denial of this Applicant’s claim. Section 16(1) of the Act provides that compensation may be awarded whether or not a person has been prosecuted or convicted of the offence giving rise to the injury. The CICB must determine whether the Applicant was the victim of a crime of violence when the Alleged Offender assaulted him.
19In this matter, the Applicant alleges that he was assaulted by the Alleged Offender on one occasion. The CICB finds this to be the case on a balance of probabilities.
20The Applicant explained that he was of the opinion that the Alleged Offender willfully assaulted him. The incident was investigated by [Name] Police Service who founds the grounds to arrest and charge the Alleged Offender with assaulting the Applicant. Prior to the charge being heard in court, the Alleged Offender died.
21For the reasons detailed above, the CICB is persuaded that the Applicant was a victim of a crime of violence, specifically, the crime of assault which caused physical and psychological injuries to the Applicant. The CICB therefore concludes that the Applicant is a victim under section 5 (a) of the Act and is entitled to compensation.
22In assessing compensation for pain and suffering, the CICB has considered all of the documentary evidence that was presented. The CICB was mindful of the circumstances of this incident and the emotional injuries suffered by the Applicant and considered the following aggravating facts: that the Applicant was injured at work by one of his residents, that the Applicant sustained both physical and psychological injuries, that the Applicant still suffers from the effects of the assault and the impact on the Applicant wellbeing and day to day living. Having considered these factors, the CICB awards the Applicant $5,000.00 for pain and suffering.
23The CICB has considered the Applicant’s claims in respect to travel to treatment in [City] and [City] costs. Since the evidence indicates that the Applicant did see specialists and attended assessments and treatment away from [home], under these circumstances the CICB finds it reasonable to award a contribution of $1,000.00 towards such costs of travelling to treatment. The Applicant did not provide the CICB a list of medical appointments and treatment providers attended.
24The CICB authorizes up to $1,200.00 (exclusive of tax) for counselling expenses to be paid directly to a qualified treatment provider upon receipt of a curriculum vitae outlining the credentials of the service provider (unless the CICB already has a copy on file). These sessions can only be accessed when the therapy sessions are not covered by other sources, such as the Applicant’s place of employment or insurance benefits. Therapy sessions should be completed within 36 months of receipt of this Order. It is the CICB’s practice to award up to $100.00 per session for therapy, or up to $125.00 per session for registered psychologists. Payment will be made directly to the treatment provider on a monthly basis, upon submission of an invoice and the required verification from the Applicant.
25The CICB generally requires original receipts and/or other supporting documentation for any expenses that are claimed, both to verify the amount claimed and to confirm that such costs were not covered by other sources, such as private insurance. In the absence of such evidence, and having found no compelling reason to deviate from its usual practice in this instance, the CICB denies the expense claims of $400.00 for physiotherapy.
Award
26The CICB orders payment as follows:
Section 7(1) (a) Future counselling $1,200.00
Section 7(1) (a) Travel to treatment $1,000.00
Section 7(1) (d) Pain and Suffering $5,000.00
TOTAL AWARD (AND COSTS) $7,200.00
Less: Preauthorized treatment costs $1,200.00
TOTAL CURRENT AWARD $6,000.00
27The 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
28THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $6,000.00
DATED at Toronto this 19th day of July, 2017
Keith Forde, Member