(Re) 1602-02297, 2017 ONCICB 20

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Gemma Harmison Date: February 07, 2017 Indexed as: (Re) 1602-02297

ORDER

Introduction

1The Applicant filed this Application with the CICB due to serious injuries that he sustained in relation to an incident that happened on [date], 2015, further details of which will be summarized below.

2Compensation is being sought from the CICB in the form of an award for pain and suffering, as well as for treatment expenses.

Evidence

3The following summary is based upon a combined review of the information set out in the CICB Application, in conjunction with police information, treatment records, and other information on file.

Summary of Incident

4The Applicant was [age] years old when the incident happened. Due to the severity of the injuries that he sustained on the incident date, he does not recall what happened or how he came to be injured. As detailed in the police information on file, the police had received a missing persons report concerning the Applicant. The evidence on file reveals that at approximately 6:00 pm on [date], 2015, an ambulance had been called to a local business after the Applicant had walked into the business with obvious injuries to his face. The Applicant was then transported to a major trauma centre where police subsequently attended and were able to confirm that the Applicant was the same person who had been reported missing. Police were able to determine that the Applicant had left his home in the early hours of [date], 2015. He was photographed using a bank ATM withdrawing some money and at that point in time he did not have any facial injuries. The Applicant vaguely recalled stopping in at a restaurant to have something to eat. When he was later found the Applicant was missing personal effects including his jewelry, watch, ipod and mobile phone. In communications with the CICB the Investigating Officer wrote that “it is highly likely [the Applicant] was violently robbed by unknown suspect(s)” in a laneway behind the restaurant. The Investigating Officer indicated that robberies have occurred in the same laneway in the past. The Investigating Officer wrote that the two working theories are that the unknown suspect(s) observed the Applicant purchase his meal at the restaurant and then followed the Applicant outside, or that the Applicant encountered the unknown suspect(s) while walking through the laneway and the suspect(s) took advantage of the fact that the Applicant was alone.

Summary of Injuries and Treatment

5The CICB had before it extensive treatment records including the initial ambulance report as well as records from [Hospital] and the [Rehab Centre]. These records document the Applicant’s physical injuries as follows:

• bilateral bruising about the eyes

• abrasions to the head

• Traumatic Brain Injury (TBI) with right subdural hematoma, bilateral subarachnoid hemorrhages and left frontal brain contusion

• multiple acute (new) lower right rib fractures.

6The records indicate that the Applicant’s past medical history included Bipolar Disorder, for which he was already under the ongoing care of a psychiatrist, as well as a previous TBI and craniotomy in 2007 as a result of a motor vehicle accident at which time the Applicant had stopped working. The records reveal that the Applicant had qualified for and was receiving disability benefits prior to the [date] 2015 incident.

7As a result of the injuries sustained in the [date] 2015 incident, the Applicant remained hospitalized at [Hospital] for twelve days where his recent TBI was closely monitored and treated conservatively. Immediately upon being discharged from [Hospital] on [date], 2015 the Applicant was transferred to [Rehab Centre] for neurocognitive rehabilitation. Concerns associated with the recent TBI were noted to include problems with memory, attention, insight, frustration tolerance, and balance. The records from [Rehab Centre] indicate that it had been recommended that the Applicant receive inpatient multidisciplinary treatment (i.e. physiotherapy, occupational therapy, social work support) at [Rehab Centre] for at least four weeks (i.e. until at least mid-[date] 2015) however the Applicant opted, and was permitted, to be discharged from [Rehab Centre] sooner than anticipated on [date], 2015 because his elderly mother, for whom the Applicant was the primary caregiver, was ill and hospitalized. Arrangements were then made for the Applicant to receive outpatient services through [Rehab Centre]’s acquired brain injury day program. The Applicant stopped attending outpatient treatment at [Rehab Centre] in mid-late [date] 2015 due to worsening of his pre-existing depression and also because of his ongoing concern for his mother.Thereafter he received additional supports at home from the Community Care Access Centre (CCAC). In [date] 2015, at the referral and recommendation of CCAC, the Applicant resumed outpatient treatment at [Rehab Centre] including occupational therapy and physiotherapy which, according to the records on file, continued until his discharge from the program on [date], 2015.

8The Applicant’s Psychiatrist completed a report for the CICB. According to the information contained in the Application, the Applicant had been under the care of the Psychiatrist for approximately seven or eight years. In the report the Psychiatrist referenced the Applicant’s pre-existing Bipolar Disorder, as well as the prior TBI in 2007 which the Psychiatrist described as resulting in cognitive deficits and lifestyle restrictions for the Applicant. The Psychiatrist indicated that after the recent TBI in 2015, the Applicant became withdrawn and anxious, and lost motivation.

9In an updated letter to the CICB dated [date], 2016, the Applicant described, among other things, that as a result of his injuries from the [date] 2015 incident he continues to experience poor memory, poor balance and slower walking speed. He wrote that he has difficulty sleeping and that he is afraid to go outside alone. He wrote that his wife does not let him use the stove in case he forgets that he has placed something on the stove or forgets to turn it off. He indicated that his depression has worsened since the incident in [date] 2015 and that he continues to see his Psychiatrist regularly.

Issues

10Since no arrest was made and no charges or conviction resulted in this case, the CICB must first decide, using its standard of proof on a balance of probabilities, whether there is sufficient evidentiary basis to conclude that the Applicant was the victim of a crime of violence within the meaning of section 5(a) of the Compensation for Victims of Crime Act (the “Act”) and, if so, must then make a determination as to an appropriate compensation award to be made to the Applicant having regard to all relevant circumstances.

Analysis and Decision

11Having reviewed the evidence presented, the CICB is persuaded that the Applicant was the victim of a crime of violence on the incident date. In reaching this conclusion the CICB has considered the Police information including the investigating officer’s opinion that it was “highly likely” that the Applicant had been violently robbed by unknown person(s) on the incident date. The CICB also finds that the documented injuries to the Applicant – which consisted of bilateral bruising about the eyes, abrasions about his head, acute rib fractures, and serious internal head injuries – are more likely than not indicative of a violent assault as opposed to some other cause. Accordingly, the CICB is satisfied that the Applicant was injured as a result of a crime of violence and therefore finds him to be compensable under section 5(a) of the Act.

12In assessing compensation, the CICB has considered the severity of the injuries that the Applicant sustained (TBI with right subdural hematoma, bilateral subarachnoid hemorrhages, left frontal brain contusion); the combined 3 week period of inpatient hospitalization while at [Hospital] and [Rehab Centre] from [date] to [date], 2015; and the subsequent outpatient treatment that he received from [Rehab Centre] and CCAC as between [date] and [date] 2015. The CICB has also taken into consideration the particular vulnerability of the Applicant when this crime happened given his age and his pre-existing health issues. The Applicant had already suffered a previous TBI in 2007 which as described in the evidence had resulted in some cognitive deficits and lifestyle restrictions for him. The CICB accepts that the TBI resulting from the assault in [date] 2015 has in all likelihood not only exacerbated the Applicant’s pre-existing conditions and limitations, but has also created altogether new limitations and challenges for him both physically and psychologically. The CICB also accepts that the injuries from the assault in [date] 2015 have significantly impacted his quality of life in that they have altered his pre-assault daily activities and level of functioning. Having considered all of the foregoing, the CICB is awarding the Applicant an amount of $25,000.00 as compensation for pain and suffering. This award of $25,000.00 is the maximum lump sum award permissible under the Act.

13Compensation had also been sought with respect to a $45.00 ambulance expense, as well as an amount of $1,288.61 for past medication expenses. As well, an unspecified amount had been claimed for past travel to medical appointments within the Applicant’s own city of residence (which the CICB does not typically compensate for). However, as noted above, the maximum permissible lump sum award under the Act is $25,000.00. This lump sum limit of $25,000.00 includes any awards made for pain and suffering and expenses combined. Since the CICB has, with its award for pain and suffering, ordered compensation in the maximum permissible lump amount of $25,000.00, no further compensation can be awarded and accordingly the expense claims are denied.

Award

14The CICB orders payment as follows:

Section 7(1)(d) Pain and Suffering $25,000.00

TOTAL AWARD $25,000.00

15The 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

16THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $25,000.00