(Re) 1608-04558, 2017 ONCICB 277

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Veda Rangan

Date: October 10, 2017

Indexed as: (Re) 1608-04558

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, loss of income, pain and suffering as a result of physical assaults that occurred on [date], 2017 where he sustained physical and psychological injuries. The incidents were reported to the Police and resulted in conviction on charges of assault and aggravated assault.

DECISION

2The CICB approves the claim for pain and suffering and awards the Applicant the sum of $6,000.00 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/her) 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. Applicant is claiming $150.00 for cost of physiotherapy.

b) Income or pecuniary loss incurred as a result of total or partial disability affecting his capacity for work pursuant to subsection 7(1)(b) of the Act. Applicant is claiming $1,600.00 for the period 10/05/2015 and 03/08/2015.

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 Report dated [date],2016
• Hospital Records from [Name] Health Centre dated [date], 2016
• Physiotherapy Report dated [date] 2016 from [Name]
• Employer’s Report
• Police Report dated [date] 2016.

7On Saturday [date], 2015, the Offender was on a weekend trip to watch baseball. On Sunday [date], 2015, at about 3:45 am, the Offender had been drinking and was found lying on the floor of the hotel. Guests called the front desk, and security officers including the Applicant attended. The four security officers found the Offender asleep on the floor and tried waking him. The Offender opened his eyes and looked at him and said he was going to punch the security guard and grabbed the guard to the ground. However he managed to get away and called Police. The Offender went back to sleep and once he woke up, the security officers including the Applicant, followed him to the room. The Offender then shoved the officers in their chest. He then grabbed the Applicant by his shirt and tie, tearing the pocket off his shirt. He then advanced on them yelling he hated niggers and Americans. The Offender then charged at the three of them and the Applicant could not back up quick enough and he was punched the Applicant in the face and then broke the $500.00 table by the elevator, as two police officers arrived.

8The Applicant sought his own medical treatment after the incident, for a sore left wrist and forearm from being kicked. On the [date] he contacted the investigating detective and advised that his wrist was fractured.

Hospital Report

9The Report states that the Applicant had a splint put on his left wrist. The fracture clinic report of the Hospital states that he had sustained a neurovascularly intact injury and has snuffbox tenderness and at that time there was only a suspicion of a fracture. Later it was fractured. He was put on a scaphoid fracture splint and was asked to keep it on for 3 weeks.

Physiotherapy report

10The Report states that the Applicant experienced soreness to the radial aspects of the wrist. The Applicant had some treatments after the initial assessment and he was recommended to practice some exercise at home. After a few sessions the Applicant failed to attend the remaining sessions. The Therapist states that prognosis for return to full strength would likely be 8 weeks.

Employer’s Report

11The Report states that the Applicant was an independent contractor with [Name] and not an employee. He began working for [Name] on [date] 2014 and continues to work with the company. He provides his services to them on needed basis, in accordance with his signed contractual agreement.

12The Applicant was placed on modified duties and because he had a cast on they were unable to use his services at sites where he had to wear a polo shirt and had limitations to certain types of duties. The Applicant continued to be available to [Name] after the incident and did not request any time off from work.

ANALYSIS AND DECISION

13For the following reasons the CICB grants the Application.

14Based on the Offender's conviction in regards to the incident at the hotel during his duty as a security officer, the CICB is persuaded that the Applicant was a victim of an assault which caused him to sustain physical injuries of bruises, and fracture of his left wrist requiring medical attention. He had limitations to activities such a playing with his son, limitations to work resulting in financial difficulties. He had physiotherapy sessions but was unable to continue due to financial limitations. He was also emotionally impacted resulting in anxiety.

15In assessing pain and suffering the CICB has considered the nature of the assault, the fact that it happened in the course of his duty, the physical injuries sustained and the limitations arising from it and the emotional impact of the same on him. In consideration of his victimization the CICB awards him $6,000.00 for pain and suffering.

Expenses

16The CICB has considered the Physiotherapist's Report in respect to therapy cost of $85.00 that was paid out of pocket by the Applicant. Since the evidence indicates that other factors have contributed to the Applicant’s overall emotional difficulties and need for treatment, the CICB will award this amount of $85.00 towards the physiotherapy costs.

Loss of Wages

17Employer's Report indicates that there was no absence from work after the incident but Applicant had returned to modified duties. However Employer’s Report notes period of absence from work from [date], 2015 to [date], 2015. The 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 $250.00 for income loss calculated at $50.00 per day of absence.

AWARD

18The CICB orders payment as follows:

Subsection 7(1)(a) Expenses Physiotherapy $ 85.00

Subsection 7(1)(b) Income Loss $ 250.00

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

TOTAL AWARD $6,335.00

PAYMENT

19THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $6,335.00