(Re) 1605-03568, 2017 ONCICB 206

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Keith Forde Date: July 27, 2017 Indexed as: (Re) 1605-03568

ORDER

Introduction

1The Applicant asks the Criminal Injuries Compensation Board (CICB) to compensate him for injuries resulting from a crime of violence which occurred on September 6, 2015, in accordance with the Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24, as amended (the “Act”). He is seeking compensation for pain and suffering incurred from one act of assault, perpetrated by the Alleged Offender, a stranger. The Applicant is also seeking reimbursement for the cost of a medical report.

2The Alleged Offender was charged with assaulting the Applicant and causing a disturbance by fighting. The CICB was not in receipt of the disposition of the charges.

Decision

3The CICB now approves the Applicant’s claim for pain and suffering and awards him $5,000.00 and for the Doctor’s Report $40.00 for the reasons set out below.

Issues

4In this case, with respect to section 5 (a) of the Act, there is no question that the Applicant was a victim of a crime of violence as proven through the conviction described above. As a result the CICB does not have to make a finding as to whether a crime of violence occurred.

• The CICB must assess all relevant circumstances and whether or not compensation should be awarded and if so, the amount;

• The CICB must determine whether the Applicant’s claim for a medical report expense is supported.

Evidence

The Applicant’s Evidence

5The following is a summary of the facts and circumstances taken from the Applicant’s Application and from the [Name] Police Service correspondences to the CICB.

6At approximately 18:06 hours on [date] 2015, the Alleged Offender entered the Beer Store located at [address], in [City]. At this time, the Alleged Offender approached the purchase point when an employee who was working at the cash register, noted strong signs of impairment by alcohol emanating from the Alleged Offender. The Alleged Offender attempted to purchase beer; however, he was denied service due to being intoxicated and his money was returned. At that point, the Alleged Offender became very verbally aggressive shouting verbal profanity.

7As the Alleged Offender was being verbally abusive to store cashier, the Applicant and who was standing by the front door told the Alleged Offender to relax and that the cashier was just doing his job. The Alleged Offender then asked the Applicant if he had a problem and made his way to the front door and exited. As the Applicant was holding the door, the Alleged Offender kicked the Applicant in the groin area without the Applicant being prepared or seeing the kick coming; the Alleged Offender then punched the Applicant in the face causing head, jaw and neck pain.

8The Alleged Offender was located not too far away and arrested and charged accordingly.

9The Applicant also provided the CICB various documents in support of his claim.

10The CICB was in receipt of a Medical Report from [Name] Hospital which noted that the Applicant presented with jaw trauma and complaint of neck pain. The Applicant was examined, treated and released with instructions.

11The CICB was also in receipt of neurological assessment from Dr. [Name] of [Name] Health Partners.

12The CICB was also in receipt of a letter dated [date], 2016 and signed by Dr. [Name] which noted the following:

The Applicant was assaulted at work on [date], 2015 by an intoxicated customer. He was seen in ER and had a CT scan/X-ray. He suffered in the following months from headaches, neck pain, insomnia and psychological distress. He had persistent flashbacks of the work place incident. He had an independent neurological assessment through the WSIB who diagnosed [Applicant] with: craniocervical angular acceleration blow injury w/ acute cervical strain and sprain and secondary cervicogenic headaches. He was followed by a psychologist as well as a physiotherapist. He was able to return to work mid-November on a gradual return to work plan.

13The CICB was also in receipt of reports from [Name] Physiotherapy & Rehabilitation Centre, where the Applicant was treated for neck and jaw pain, MSK contusion post assault.

Injuries

Physical

14The Applicant notified the CICB in his Applicant of the following: concussion, jaw contusion, acute cervical strain and sprain and headaches.

Psychological/Emotional

15Nightmares and anxiety and unable to concentrate.

Analysis

16Section 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 was subjected to a crime of violence as defined by section 5 (a) of the Act, as a result of an act of assault, committed on [date], 2015, in the [City].

17Having considered the evidence presented in the Applicant’s application and the police information, the CICB is persuaded that the Applicant suffered physical and psychological injuries as a result of a crime of violence. The CICB finds the Applicant to be a victim within the meaning of section 5 (a) of the Act.

18The CICB accepts that the Applicant suffered physical and psychological injuries and the related symptoms that are described by the Applicant in the documentary information submitted to the CICB. The CICB also accept that the Alleged Offender’s crime was the contributing factor to the Applicant’s physical and ongoing psychological injuries.

19In assessing compensation for pain and suffering, the CICB has considered the totality of the evidence of injury, including the Applicant’s documentary reports, the Police synopsis as well as the medical and therapy reports on file. The CICB was mindful of the circumstances of this incident and the psychological injuries suffered by the Applicant and considered the following aggravated facts:

• That the incident was unprovoked;
• That the incident occurred at the Applicant’s place of employment;
• That the Applicant suffered both physical and psychological injuries;
• That medical intervention was needed;
• That the incident impacted the Applicant’s well-being.

20Having considered these factors, the CICB now awards the Applicant $5,000.00 for pain and suffering.

21The CICB considered the Applicant’s claim in respect to Doctor’ report costs, for which a receipt was provided. The CICB finds such costs to be both reasonable and within the context of the Act and will therefore award $40.00 for such costs.

Award

22The CICB orders payment as follows:

Section 7(1) (d) Pain and Suffering $5,000.00

Section 22 Costs –Doctor’s report $ 40.00

TOTAL AWARD (AND COSTS) $5,040.00

23The 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

24THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $5,040.00