(Re) 1604-03002, 2017 ONCICB 211

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Jo-Anne Hughes
Date: July 31, 2017
Indexed as: (Re) 1604-03002

ORDER

Introduction

1In this case, the Applicant submitted a claim that while working as a court officer, she was assaulted by the Alleged Offender while he was being moved from a holding cell to a court hearing.

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 her March, 2016 submission to the CICB, the Applicant wrote that while performing her duties as a peace officer in court services, she and some co-workers were escorting the Alleged Offender from a holding cell to a mental health court for a hearing. The Alleged Offender refused to cooperate as he was leaving his holding cell so the officers decided to put handcuffs on him. During that struggle, the Applicant’s right arm became pinned and she heard a “tearing sound” in her chest. The Alleged Offender was controlled and the Applicant went to the hospital for treatment.

Police Report

4The CICB received a report from the [Name] Police Service in support of the Applicant’s claim. Police reported that when three court officers directed the Alleged Offender to turn around to be handcuffed, he resisted by striking these officers with his flailing arms. The Alleged Offender was taken to the ground and at one point, the Applicant was pinned between the Alleged Offender and a wall. Police noted that as a result of this incident, the Applicant had pain in her neck and shoulder, so she was sent via ambulance for treatment and did not return for the rest of her shift.

5As a result of their investigation, police charged the Alleged Offender with three counts of obstructing a peace officer and three counts of assaulting a peace officer. However, on [date], 2016, all charges against the Alleged Offender were dismissed by the court.

Injuries

6In her submission to the CICB, the Applicant wrote that as a result of this incident, she had strains to her shoulder, back and neck. Immediately, she had limited mobility with her right arm and neck. She was unable to dress herself and care for her children. The Applicant got x-rays through her family doctor and she received a prescription of Percocet for the extreme pain which she felt in her neck, back, shoulder and collarbone.

7The Applicant attended physiotherapy on a regular basis but it did not help. Then, she started massage therapy and it worked much better for her pain management associated with muscle tightening in her right side.

8The Applicant also suffered from months of chronic headaches but they subsided after five months. She still suffers from stiffness through her right side – including neck, chest, back and shoulder. However, she can perform all of her daily tasks due to regular massage therapy treatments. Occasionally, she has a headache. When she returned to work the Applicant was timid working with mental health inmates and she has struggled to work through those fears.

Medical Reports

9The CICB received reports from [Name] Hospital which confirmed the Applicant had muscle strains in her right shoulder, neck, chest and arm. She was released with painkillers and advised to seek treatment with her family doctor. Spine, neck and chest X-rays revealed “no bone abnormalities” The Applicant was off work for six weeks.

10A Medical Report from the Applicant’s family doctor, Dr. [Name], confirmed the Applicant had pain to her neck and right upper back, chest and shoulder as a result of this incident.

11The CICB received a Report from Physiotherapist [Name], who reported that the Applicant received six treatments, only reported limited progress as a result. Her treatment ended with the end of WSIB funding.

12The CICB received a report from Massage Therapist, [Name], who provided three sessions of therapy to the Applicant in January 2016. Her treatment ended when WSIB funding ended for this incident. The Applicant reported that she had temporary pain relief after each treatment and she had limited progress through her course of RMT treatments.

Expenses

13The CICB received a report from the WSIB, which confirmed that it provided loss of earnings benefits to the Applicant and that she would not be considered for a WSIB NEL award.

Analysis and Decision

14The fact that there has not been a conviction is not fatal to the 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 or death.

15Considering the evidence presented, the CICB finds the Applicant, on a balance of probabilities, to be a victim of a crime of assault peace officer, and therefore, a victim within the meaning of section 5(a) of the Act.

16In 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 at work and assaulted by the Alleged Offender who attacked three officers to resist being cuffed. As a result, the Applicant suffered from significant muscle strains to her right shoulder, back and neck. The Applicant was off work for six weeks and she took physio and massage therapy treatments. On an emotional level, the Applicant initially feared alleged offenders with mental issues when she returned to work but worked her way through that issue.

17The Applicant’s claim was supported with reports from Police, a Hospital, her Doctor and two Therapists. Considering this evidence and the submissions by the Applicant, the CICB assesses this award at $4,000.00.

Award

18The CICB orders payment as follows:

Section 7(1)(d) Pain and Suffering $4,000.00

TOTAL AWARD (AND COSTS) $4,000.00

19The 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

20THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $4,000.00