CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Veda Rangan
Indexed as: (Re) 1701-00131
ORDER
INTRODUCTION
1The Applicant is seeking financial compensation from the Criminal Injuries Compensation Board (CICB) in accordance with the Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24, as amended (the “Act”). The Applicant is seeking expenses, loss of income, pain and suffering as a result of physical assault that occurred on [date] 2015 where he sustained physical/psychological injuries. The incidents were reported to the police and resulted in a conviction for assault.
DECISION
2The CICB approves the claim for pain and suffering and awards the Applicant the sum of $7,891.08 for the reasons set out below.
ISSUES
3A conviction may be taken as conclusive evidence that an offence has been committed pursuant to section 11 of the Act. Given that there was a conviction in this case, the Applicant is required to prove, on a balance of probabilities, that his injuries are the result of the crime pursuant to subsection 5(a) of the Act.
4The Applicant must provide reliable evidence to support his claims for:
a. expenses actually and reasonably incurred as a result of his injury pursuant to subsection 7(1)(a) of the Act
b. income or pecuniary loss incurred as a result of his total or partial disability affecting (his/her) capacity for work pursuant to subsection 7(1)(b) of the Act.
HEARING
5The hearing was conducted in writing on the basis of the materials contained in the Applicant’s file.
Documentary Evidence
6The CICB received the following documents with respect to the claim: Police Reports dated [date] 2017, Hospital Records from [Name] General Hospital, Medical Report from [Name] Urgent Care, Dr. [Name] Optometry, Therapy Reports from Dr. [Name] Psychologist, Employer’s Report dates [date] 2017, [date] 2017 and [date] 2017, l therapist, copies of expense claims and receipts.
Police Report
7The Applicant and the Offender were acquainted with each other through the Offender’s girlfriend. The girlfriend and the Applicant worked as night janitors. The girlfriend accused the Applicant of assaulting her. The Police were called by the owner of the business and the surveillance video showed that the girlfriend’s accusations to be false. As a result she was terminated from her work at the [name].
8The girlfriend falsely informed her boyfriend, the Offender, that the Applicant had hit her in her face. Angered by this the Offender accosted the Applicant while he was walking on the street towards his destination. He hit him with a clenched fist causing the Applicant to fall on the concrete pavement. While on the ground the Offender continued to kick him and hit him. Later he grabbed him by the shirt around his neck area, pulling it up so that his arms were tangled up in his shirt. He then dragged the Applicant and continued to punch him and kick him. The Offender subsequently left in his Jeep.
9Applicant then attended [Name] Hospital when he received medical attention for abrasions to his neck and face. The Report states that the Applicant suffers from headaches and has missed several shifts at his place of employment.
Hospital Report
10The ER report notes that the Applicant complained of sore and stiff neck, left hip abrasion, left hand abrasion, lower lip injury, and ringing in ear, dizziness, and skin tears to shins. The radiology report notes a heavily comminuted/shattered fracture of the distal phalanx of the first digit. Small component extends to the articular surface. No other acute fractures were identified. There is associated soft tissue swelling.
[Name] Urgent Care Report
11The walk in clinic doctor states that he did not see the Applicant for the injuries but for a note to his work place. The Applicant told the walk in clinic doctor that other physicians have diagnosed him as suffering from concussion and PTSD.
Report from Pyschiatrist
12The Applicant was seen and assessed on the [date] with regard to problems that he has been having in coping. He told the Doctor that he has had anxiety attacks for a few weeks after the incident and these have dissipated. He still feels apprehensive about being on his own. He is afraid that his car that is fairly new parked in his driveway might be vandalised by the friends of the man who had assaulted him. He is also apprehensive about going to court in [month] regarding the same incident.
13On examination the Doctor writes:
The mental status examination revealed a man who was able to establish easy rapport. His affect was neutral. There was no psychomotor retardation or agitation. He was not found to have any evidence of mania in the past. There were no abnormal body movements. His affect was neutral. He was not suicidal or homicidal. There were no delusions or hallucinations. He had symptoms of generalized anxiety but no anxiety attacks. He had a clear sensorium and good insight and subjectively felt depressed.
Diagnostically, the patient appears to have an adjustment disorder with depression and anxiety. He was given support and I have suggested that he get back to work in a gradual fashion and if this is not possible he could spend time during the day at the [name] and get himself acclimatized to the surroundings and start work after a couple of weeks. He is willing to try this. He still has difficulty with headaches and this is likely to last for a while.
14He was prescribed Effexor.
Employer’s Report
15The Report dated [date], 2016 notes that the Applicant was suspended with pay from [date] to [date] (according to timesheet in his file). He was eligible to return to work on [date], 2015 but provided a doctor’s note that he was totally disabled indefinitely from [date]. His last day paid was [date], 2016 as he was paid 28 hrs sick for [date] to [date]. He returned [date], 2015.
Expenses and receipts
16The Applicant is claiming the following:
Prescription medication: $61.08 – receipt on file
Prescription glasses (lost during assault) $500.00 – receipt on file
Eye exam: $80.00 – receipt on file
$275.00 for personal belongings damaged during assault
ANALYSIS AND DECISION
17For the following reasons the CICB grants the Application.
18Based upon the evidence provided and the Offender’s conviction in respect to the incident, the CICB is persuaded that the Applicant was a victim of an assault which caused him to suffer physical injury including sore and stiff neck, left hip abrasion, left hand abrasion, lower lip injury, and ringing in ear, dizziness, skin tears to shins. The radiology report notes a heavily comminuted/shattered fracture of the distal phalanx neck and these injuries medical attention. The Applicant was also emotionally impacted and he states that he fears of being attacked again, has anxiety and experiences symptoms of PTSD. As a result, the CICB concludes that the Applicant is a victim within the meaning of s.5 (a) of the Act in connection with the assault.
19In assessing pain and suffering the CICB has considered the nature of the assault, the physical injuries that had impacted on physical abilities to do some activities and his employment and the emotional impact of the same on him. In consideration of his victimization the CICB awards him $5,000.00 for pain and suffering.
20The CICB considered the Applicant’s claims in respect to prescription medications in the amount of $80.00, prescription glasses in the amount of $500.00 and cost of an eye exam at $80.00, for which receipts were provided. The CICB finds such costs to be both reasonable and within the context of the Act and will therefore award $641.08 for such costs.
21The CICB generally awards compensation only to cover expenses related to treatment of the injuries sustained (i.e. hospital, medication or therapy expenses) and not for expenses related to cost of damaged clothing during the assault. Having found no compelling reasons to deviate from its usual practice in this instance, the CICB declines to award compensation for the Applicant’s claims in respect to personal belongings damaged during the assault.
22With regards to loss of wages the Employer’s Report notes that the Applicant was paid bi-weekly with an average of $632.40 net pay. Employer’s Report notes period of disability to be from [date] 2015 to [date] 2015. However the Doctor’s note, although dated [date], states that the Applicant was totally disabled from [date] indefinitely. He was in receipt of EI in the amount of $2,237.40 from [date] 2015 to [date] of the same years. The Applicant in his note to the CICB notes that prior to the assault on [date] 2015, he was assaulted by the Offender’s girlfriend, at work on [date] 2015. Employment insurance/sick pay was provided to him from the [date] incident to [date], 2015. He had confirmed via telephone that he is NOT wishing to claim for [date] incident.
23The CICB has considered the Applicant’s income loss claim. It is the CICB’s practice to reimburse income loss to a maximum of $1,000.00 per month or $50.00 per day and having considered the particular circumstances of this case, the CICB finds no compelling reason to deviate from that practice. Accordingly, the CICB now awards $2,250.00 for income loss (9 weeks x $250/week) for the period [date] 2015 to [date] 2015.
AWARD
24The CICB orders payment as follows:
Subsection 7(1)(a) Expenses $ 641.08
Subsection 7(1)(b) Income Loss $2,250.00
Subsection 7(1)(d) Pain and Suffering $5,000.00
TOTAL AWARD $7,891.08
PAYMENT
25THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $7,891.08
DATED at Toronto this 27th day of July, 2017
Veda Rangan, Member