CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Veda Rangan
Indexed as: (Re) 1610-00049
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, RSO 1990, c. C.24, as amended (the “Act”). The Applicant is seeking expenses, pain and suffering as a result of physical assault that occurred on [date], 2014 where he sustained physical/psychological injuries. The incidents were reported to the Police and resulted in a conditional discharge on charges of assault cause bodily harm. Included in the sentencing was also probation for 3 years with community service of 150 hours.
DECISION
2The CICB approves the claim for pain and suffering and awards the Applicant the sum of $4,000.00 for pain and suffering 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 The Applicant is claiming the cost of chiropractic treatment in the amount of $700.00 and travel to treatment for 31 trips at a distance of 85.50 km per round trip. The total cost of travel to treatment is calculated to be 31 trips X 85.5km per trip X $0.40 per km = $1,060.20.
5The hearing was conducted in writing on the basis of the materials contained in the Applicant’s file.
EVIDENCE
Documentary Evidence
6The CICB received the following documents with respect to the claim: Police Report dated [date], 2016; Hospital Records from [Name] District Hospital; Medical Report from Family Physician, Dr.[Name]; Report from the Chiropractor Dr. [Name]; and copies of expense claims or receipts.
Police Synopsis
7The Police Synopsis states that the Applicant, his brother and one other person went across the street from the bar they attended to get a pizza. The Applicant's brother advised the three of them attended [bar] just before last call. They were walking around a taxi/van in the parking lot in front of [store] as the Applicant was sucker punched on the left side of his head, lost consciousness and fell backwards and to the side, hitting his head on the ground.
8The Applicant’s brother became involved in a physical altercation with the male that punched the Applicant and he then picked up the Applicant and helped him to sit on a curb. Kept telling him to get up and didn't realize how bad his injuries were. The brother then assisted the Applicant into a taxi and transported him to [Name] District Hospital. In the early hours of the morning the brother woke up to a call regarding the Applicant needing surgery.
9The Police Synopsis notes that the Applicant sustained minor injury to the left side of his face, a lump on the back right side of his head and a broken right ankle. He had surgery on his right ankle; requiring insertion of plates and pins in his foot and was in a cast for a minimum of two months.
10The Offender has numerous reports on file for assault and assault causing bodily harm. Based on the evidence obtained during the investigation, the policed had grounds to arrest the Offender in this matter for the offence of Assault Cause Bodily Harm contrary to section 267(b) of the Criminal Code.
11The Offender pled guilty to charges of assault causing bodily harm and was sentenced to conditional discharge, 3 years’ probation and 150 hours community service.
Hospital Report
12The Report states that the Applicant had twisted his right ankle and was unable to put weight on this foot. At the ER the orthopedic surgeon noticed has tenderness and swelling over the right ankle. X-rays revealed a fracture that appears to be slight widening of the syndesmosis. He recommended an open reduction internal fixation. The ankle fracture required surgical intervention. The orthopedic surgeon recommended ASA therapy to minimise risk of DVT.
Medical Report
13The Report notes that the Applicant’s fracture was surgically repaired and that he experienced chronic pain.
Report from the Chiropractor
14The chiropractor notes injury to the right leg, low back, and right SI joint. He states that as a result of the fall from the punch the Applicant fell on his right leg resulting in the fracture of the right fibula. As a result he suffered from a disrupted gait causing chronic low back and SI joint pain. He was treated with low back manual therapy and functional rehab exercise.
15The Report also states that the Applicant was unable to continue further treatment due to financial constraints and he recommends 24 additional sessions to facilitate further progress.
ANALYSIS AND DECISION
16For the following reasons the CICB grants the Application.
17The Offender has been found guilty by a court for a crime of violence that he committed against the Applicant. However, in sentencing, the Court afforded the individual a conditional discharge and therefore he cannot be named in this Order. He will be referred to as the Offender in this Order.
18Based on the documentation on file including the Police Report and the Medical Reports the CICB is persuaded that the Applicant is a victim of crime of violence pursuant to section 5 of the Act.
19Pursuant to section 5 of the Act, all claimants seeking compensation are required to prove, on a balance of probabilities, that they sustained bodily harm as a result of a crime of violence.
20The medical documentation on file and the Applicant’s narrative make reference the fractured right fibula requiring surgical intervention, followed by limitations due chronic pain and inability to bear weight.
21As 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 on him.
22In assessing pain and suffering the CICB has considered the unprovoked nature of the assault, the nature of the physical injuries and the emotional impact on him. In consideration of his victimization the CICB awards $ 4,000.00 for pain and suffering.
Expenses
23The CICB considered the Applicant’s claim in respect to chiropractic treatment costs, for which supporting documents were provided. The CICB finds such costs to be both reasonable and within the context of the Act and will therefore award $700.00 for such costs.
24The CICB awards travel to treatment costs in the amount of $1,060.20 calculated at the CICB’s standard rate of 40¢ per kilometre (31 trips @ 85.5 kilometres per trip @ 40¢ per kilometre).
25Based on the Applicant’s stated intention to enter into Chiropractic treatments in the near future, the CICB authorizes up to $1,000.00 for chiropractic treatment expenses to be paid directly to a qualified treatment provider upon receipt of a Curriculum Vitae outlining the credentials of the service provider (unless the CICB already has a copy on file). These sessions can only be accessed when the therapy sessions are not covered by other sources, such as the Applicant’s place of employment or insurance benefits. Chiropractic sessions must be completed within 36 months of receipt of this Order. Payment may be made directly to the treatment provider on a monthly basis, upon submission of an invoice(s) and the required verification(s) from the Applicant. The CICB may also consider chiropractic treatment expenses that were incurred between the time that the Applicant submitted his final set of documents to the CICB and the receipt of this Order. If there are such expenses, the CICB will deduct these from the pre-authorized $1,000.00 amount described above.
AWARD
26The CICB orders payment as follows:
Subsection 7(1)(a) Expenses, chiropractor $ 700.00
Subsection 7(1)(a) Expenses, Travel to treatment $1,060.20
Subsection 7(1)(a) Future Pre-Authorized Chiropractic expense $1,000.00
Subsection 7(1)(d) Pain and Suffering $4,000.00
TOTAL AWARD $6,760.20
Less: Preauthorized treatment costs -$1,000.00
TOTAL CURRENT AWARD $5,760.20
PAYMENT
27THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $5,760.20
DATED at Toronto, this 30th day of September, 2017.
Veda Rangan, Member