(Re) 1512-01725, 2017 ONCICB 25

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: George Berrigan Date: February 08, 2017 Indexed as: (Re) 1512-01725

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 [date] in accordance with the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “Act”). He claims compensation in the form pain and suffering as a result of being physically assaulted by an acquaintance.

2The Offender was found guilty of Assault with a Weapon contrary to section 267(a) of the Criminal Code. He was sentenced to a period of incarceration.

Issue

3The issue before the CICB is whether or not the Applicant suffered any injury as a result of a crime of violence within the meaning of subsection 5(a) of the Act. If the answer is in the affirmative, the CICB must determine whether the Applicant is compensable and what the appropriate amount of compensation will be.

Analysis and Decision

4The information described herein is based on the information contained in the Application and in the appended documents including the Police Reports and Hospital Reports.

5The Offender was well known in the community as being an unpredictable violent man. On the incident date the Applicant, Offender, and others went to a shed to continue to party after a wedding reception. At approximately 5:00 a.m. the Offender became violent. He assaulted a number of individuals before punching his girlfriend. She ran out of the shed but the Offender caught her and dragged her back. She was punched repeatedly to the face. He grabbed a 2 X 4 piece of wood and raised it to strike her. The Applicant stepped between them to protect her. As a result he received a hard blow to the right shoulder with the piece of wood. He immediately fell to the ground. Police were called after a neighbour heard the screaming and commotion.

6As to injuries the Applicant suffered what is medically described as a wide separation of the AC joint with widening of the coracoclavicular distance in keeping with a high grade ligamentous injury. The Applicant underwent surgery to repair this injury on [date], 2015. The repair required a skin graft with the donor tissue from knee area. Surgery had initially been scheduled in [date] 2004 but was cancelled at the Applicant’s request.

7When the Applicant presented to the clinic in [date] 2013 he said that he had intermittent pain in his right shoulder. The pain bothered him a couple of times a month around the shoulder and radiating down the arm. There was also some numbness radiating down his arm on an occasional basis. He reported having difficulty lifting items. The Applicant was left hand dominant.

8In the Application the Applicant states he was unable to use his right arm from the time of injury to the date of surgery. He stated that he continually wore a sling which, at times, was uncomfortable. Due to the pain he was on a continual diet of Tylenol 3s. They eventually caused him a stomach disorder. The arm injury prevented the Applicant from participating in traditional activities such as hunting, fishing, and gathering wood. Post-surgery he still has a decreased range of motion. He is unable to chop wood and lift items over 15 pounds. He states he has continual pain and uncomfortableness.

9The donor area on the Applicant’s leg was painful and he had difficulty walking for a number of weeks.

10Section 11 of the Act, states that proof of conviction shall be taken as conclusive evidence that the offence has been committed. The CICB finds the Applicant to be a victim within the meaning of section 5(a) of the Act.

11In arriving at an award for pain and suffering the CICB first considers the nature of the crime of violence. The Applicant was attempting to defend a defenseless female when he was struck with a weapon, a piece of wood.

12Next, the CICB considers the degree/nature of injuries suffered as described herein. The injury was a shoulder separation that required surgery to repair. The CICB considers the pain involved, decrease of range of motion and the impact on the applicant’s traditional activities. The CICB also considers the period of disability.

13In consideration of the foregoing the CICB awards the Applicant $6,000.00 for pain and suffering. The applicant has signed a direction of funds as a result the award will be paid to the Applicant’s Lawyer in trust.

Award

14The CICB orders payment as follows:

Section 7 (1) (d) Pain and Suffering $6,000.00

TOTAL AWARD $6,000.00

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:

Ellery, Ellery & Cogar – In Trust $6,000.00