CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Jo-Anne Hughes
Indexed as: (Re) 1611-00361
ORDER
Introduction
[ 1 ] In this case, the Applicant is seeking funding for supportive counselling, expenses and compensation for mental and nervous shock with respect to the assault of her husband [Primary Victim].
[ 2 ] The Applicant is required to prove, on a balance of probabilities, and the CICB is required to determine whether the Applicant was a victim of a crime of violence per section 5(a) of the Compensation for Victims of Crime Act, RSO 1990, c. C.24 (the “Act”), what injury, if any, resulted from it, and whether there are any relevant circumstances that may affect whether or not compensation should be awarded and if so, the amount.
[ 3 ] Under the Act, an individual, who is not the direct victim of violence, may be eligible for compensation as a victim themselves where the individual is able to establish that he or she has sustained the injury known as mental or nervous shock, which is a legal term and not a medical diagnosis.
[ 4 ] The legal test for mental and nervous shock, summarized in Ulmer v. Weidmann, [2011] B.C.J. No. 158, and cited with approval by the Divisional Court in Wilson v. Criminal Injuries Compensation Board, 2015 ONSC 7876 (“Wilson”) is as follows:
(…) the following elements of the cause of action for nervous shock have been established:
a. the defendant must take reasonable care not to injure those persons who are so closely and directly affected by his/her actions that he/she ought reasonably to have them in contemplation as being so affected;
b. proximity factors inform the foreseeability analysis for claims of psychiatric injury where there is no physical injury;
c. the relevant proximity factors are:
i. the relational proximity (the closeness of the relationship between the claimant and the victim of the defendant’s conduct),
ii. the locational proximity (being at the scene of a shocking event and observing it or observing its immediate aftermath), and
iii. the temporal proximity (the relation between the time of the event and the onset of the psychiatric illness);
d. the claim must be for actual psychiatric injury caused by the actionable conduct of the defendant;
e. it must be concluded as a matter of law that a reasonable person should foresee that his/her conduct is such that for it could create a risk of direct psychiatric injury to a person of normal fortitude and thereby give rise to a duty of care to avoid such a result;
f. a claimant must prove not just psychological disturbance or upset as a result of the defendant’s negligence but also that his/her psychological disturbance rises to the level of a recognizable psychiatric illness. Mere grief or sorrow caused by a person’s death is not sufficient to support any compensation. The law does not recognize upset, discord, anxiety, agitation or other mental states that fall short of a recognizable psychiatric illness.
[ 5 ] To be compensable, the Applicant must establish that she suffered psychiatric or psychological injury, which rises to the level of a recognizable psychiatric illness, induced by the shock resulting from the violent occurrence. Problems in dealing with the aftermath of the occurrence, such as difficulty in adjusting to a new lifestyle, stress, financial problems or having to attend court are generally not compensable.
Incident
[ 6 ] In her September 2016 submission to the CICB, the Applicant wrote that this whole incident has been overwhelming for her. At 3:30 am on [date], 2015, the Applicant’s daughter called on the telephone, to seek assistance from the Primary Victim as she was engaged in a confrontation with the Offender, whom she described as “gone crazy”. The Primary Victim arrived on the scene and about 4:30 am, he was violently attacked by the Offender. The Applicant wrote that she was stressed to see the Primary Victim, lying in the hospital with his face swollen and blood caked on his nose. Also, she was distressed by the number of people involved, from Police, to treatment providers dealing with the Primary Victim for treatments and hearing the Doctor informing Police about the grave nature of the Primary Victim’s injuries. Then, he was transferred to the [Name] General Hospital where more specialists were treating the Primary Victim. The Applicant was at the Primary Victim's bedside from 7:00 a.m. to 10:00 p.m. when she had to go home. He had severe headaches for four days. Later, he was sent home and during a return/follow-up visit, the Primary Victim’s condition degraded and he was re-admitted to the hospital for treatment which included drilling a hole in his skull to relieve cranial bleed pressure and tying him to his bed so he did not hurt himself during recovery. The Applicant noted that they had to take at least six trips to [City] for follow-up appointments.
[ 7 ] As a result of this incident, the Primary Victim was unable to drive for three months and he lost his license to drive a bus which caused a huge financial strain on their family. The Primary Victim became forgetful and impulsive so he was not allowed to make decisions and the Applicant has to micro-manage everything. The Primary Victim would sleep for long periods of time – or not at all. He would wake the Applicant when she was sleeping and then he would turn around and sleep all day. Since he was still feeling dizzy and unsteady on his feet, they had to hire help to maintain their house.
[ 8 ] In summary, the Applicant wrote that the Primary Victim cannot remember much, he cannot plan ahead, she has to text him or remind him about things, he becomes dizzy and unsteady when he stands up, he has become impulsive – leaving the Applicant in public places, he lost his previously excellent sense of direction, and she now manages all events and decisions.
[ 9 ] In addition to this, their daughter became more ill with bipolar disorder and OCD so they have taken care of her now alienated sixteen year-old son and he lives with them.
Police Report
[ 10 ] The CICB received a report from the [Name] Police Service in support of the Applicant’s claim. Police reported that about 4:00 am. on the morning of the incident, the Offender and his partner (the Applicant’s daughter) were “engaged in an altercation”. The Applicant’s daughter called the Primary Victim for help and he arrived about 4:30 am.
[ 11 ] Upon the Primary Victim’s arrival, the Offender began yelling at him, saying that he was not going to move and that he was going to smash the place up. Then he began beating the Primary Victim, knocking him to the ground and repeatedly hitting and stomping on the Primary Victim’s head, while saying that he was going to “finish him off”. Police noted the Primary Victim was transferred to [Name] and [Name] Hospitals with facial injuries, a fractured orbital socket and a cranial cavity bleed – all summarized as “life threatening” injuries.
[ 12 ] As a result of their investigation, Police charged the Offender with aggravated assault and two counts of uttering threats. On [date], 2016, he was convicted on all three charges and sentenced to 430 days of pre-sentence custody plus eight and a half months in jail and two years of probation.
Medical Reports
[ 13 ] The CICB received a Medical Report from Dr. [Name] who referred the Applicant for counselling with a social worker to deal with issues related to this incident.
[ 14 ] The CICB received a Therapy Report, dated [Date] 2017, from [Name] who saw the Applicant for ten counselling sessions (funded by the Victim Quick Response Program - VQRP) between [date] 2015 and [date] 2016. [Therapist] noted the Applicant’s life completely changed as a result of the incident in which Primary Victim was violently attacked by the Offender. As a result, he received a major brain injury which will have life-long effects and requires daily care and support from the Applicant.
[ 15 ] [Therapist] further noted the Applicant was experiencing anxiety related to the day Primary Victim was injured along with having to cope with the aftermath of his treatment and on-going injury issues. Now, she constantly worries about his health and fears leaving him alone. The Applicant also suffers from sleep deprivation due to Primary Victim's on-going issues.
[ 16 ] The nature of the Applicant’s relationship changed from being a wife/partner into being a caregiver. They had financial strains because the Primary Victim was unable to work so the Applicant had to work extra hours which caused her to have daily anxiety and stress. Also, they became socially isolated due to the Primary Victim’s inability to handle crowds and noise.
[ 17 ] The Applicant’s anxiety was reduced with therapy and CBT. In the short term, the impact of this incident was severe and in the long term, the Applicant’s prognosis was good, but uncertain.
Expenses
[ 18 ] In her submission to the CICB, the Applicant wrote that she had expenses for prescription drugs and counselling, which she paid herself and she provided no receipts to the CICB.
[ 19 ] Also, the Applicant claimed she had expenses related to travel to treatment for the Primary Victim. These were listed as:
[City] to [City] – 12 trips @ 97 KM one way
[City] to [City] – 10 trips @ 30 KM one way
[ 20 ] However, in her written submission to the CICB, the Applicant wrote that they had to take “at least six trips” to [City] for follow-up and treatments.
[ 21 ] In her submission to, the Applicant claimed she used vacation pay to take time off work to care for the primary Victim as she provided “total nursing care” at his bedside for 18 days.
[ 22 ] Previously, the CICB provided $2,000.00 to the Applicant for future counselling under section 14 of the Act.
Analysis and Decision
[ 23 ] Considering the available evidence, the CICB finds that the Primary Victim is a victim of a crime of violence under the Act.
[ 24 ] As noted above, the CICB is being asked whether the Applicant is compensable for mental and nervous shock. Considering the evidence provided, the CICB has no doubt, based on the evidence before it, that the Applicant was present for the immediate aftermath of the incident while the Primary Victim was being treated at the Hospital (as she described seeing him being treated in the [Name] Hospital Emergency Department and she saw him being transferred to the [Name] General Hospital for treatment) and that she has a close relationship with him. As a result, it is understandable that she would be profoundly affected by this experience.
[ 25 ] Also, the CICB received a Therapy Report in support of the Applicant’s mental and nervous shock claim. This Report noted that the Applicant suffered from anxiety related to the Primary Victim's condition and the stress of managing new aspects of their relationship as she had to transition from being a partner/spouse into being the Primary Victim's care giver. However, the Applicant also indicated that after the Primary Victim was finally released from Hospital, she was able to return to work. While there is evidence that the Applicant suffered some emotional stress, as stated in Wilson, the law does not recognize upset, discord, anxiety, agitation as these are mental states that fall short of a recognizable psychiatric illness. Further, there is no diagnosis of a “recognizable psychiatric illness” in the documentation provided to the CICB. Accordingly, the CICB finds that the Applicant has not suffered the injury known as mental or nervous shock and this aspect of the Applicant’s claim is hereby denied.
[ 26 ] With respect to the Applicant’s claims for travel to treatment for the Primary Victim, this aspect of the Applicant’s claim should have been handled under the case file for the Primary Victim. Considering that he was awarded the maximum amount which the CICB can award for a single incident, the CICB cannot compensate the Applicant for her expenses related to the incident where the Primary Victim was injured.
[ 27 ] Finally, the CICB considered the Applicant’s claim for loss of income related to used vacation time to support the Primary Victim while he was hospitalized. However, the CICB notes that it generally awards compensation only in respect to actual income loss, that is, those situations whereby an applicant’s regular earnings were not covered by other benefits such as sick leave, vacation time, or other discretionary leave credits. Further, the CICB will only consider such claims where it can be proven that an applicant suffered actual income loss as a result of subsequently requiring time off work, without pay or benefit, on account of the fact that she no longer had vacation time available. In the absence of evidence to establish an actual loss of income, and having found no compelling reason to deviate from its usual practice in this instance, the CICB declines award compensation for income loss related to used vacation time.
Award
[ 28 ] The CICB orders payment as follows:
Section 7(1)(a) Expenses (Section 14 Award) $2,000.00
TOTAL AWARD (AND COSTS) $2,000.00
Less: Section 14 Award – already paid/authorized $2,000.00
TOTAL CURRENT AWARD $ 0.00
Dated at Toronto this 1st day of October, 2017
Jo-Anne Hughes, Member