(Re) 1702-00380, 2017 ONCICB 299

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Anne-Marie Langan

Date: October 21, 2017

Indexed as: (Re) 1702-00380

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 reimbursement of medical expenses and treatment expenses and damages for pain and suffering as a result of an assault that occurred on [date], 2011 where he sustained physical injuries. The incidents were reported to the Police but they were unable to identify the assailants.

DECISION

2The CICB approves the claim and awards $22,991.49 for the reasons set out below.

ISSUES

3The absence of a conviction does not mean that the CICB is precluded from making an order of compensation. Subsection 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. The Applicant is required to prove, on a balance of probabilities, not only that he was a victim of a crime of violence but also that his injuries resulted from.

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.

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.

Application

7In his Application the Applicant describes how on [date], 2016 he went out to eat at a fast food restaurant in [City] with a group of friends after celebrating his birthday at a night club. The Applicant was visiting from [outside Canada]. One of the friends he was with was being harassed by a group of men outside of the restaurant. The Applicant heard the commotion between his friend and the group of men and went to assist his friend. One of the men who was harassing his friend turned on the Applicant and punched him in the face. The Applicant punched him back. The Applicant was then stabbed in his eye with something sharp which he believes was a broken bottle.

8The Applicant was taken to the closest Emergency Room where he was operated on. Glass was removed from his eye during the surgery. He returned to his home [outside Canada] and had to have eye removal surgery two weeks after the incident. While waiting for surgery he had fevers due to infection and pain in his eye. He was prescribed pain medication which made him feel ill. Following the eye removal the Applicant had to wear a patch and has difficulty at work now because he has to strain to read things on his computer with only one eye. He had to wait for approximately 2 months to get a prosthetic.

Police Report

9Confirms the incident as described by the Applicant and explains that the Police have been unable to locate the suspects and that the investigation is on hold pending further leads.

Hospital Records - Ontario

10The Hospital Report confirms that the Applicant underwent surgery on his right eye on the night of the incident. In the operative report the surgeon describes “a large full thickness laceration of his upper lid approximately in the position of the lid crease extending the entire width of the lid and unto the nasal bridge.” The Surgeon attempted to do a repair but it was not possible due to the severity and location of the wound. The wound was stitched up and a patch was applied. The Report concludes by saying that “the patient will require enucleating of his right eye as this was a non-repairable injury”.

Hospital Records – [outside Canada]

11Confirms that the Applicant went straight to the emergency room at his local hospital in [outside Canada] upon his return and was experiencing pain and discomfort due to his injury. The Doctors there confirmed that there was no way to save the eye and performed an enucleating (eye removal) surgery. He was given pain medication and other post-operative medications for his eye.

Medical Report

12Dr. [Name] was the Doctor who saw the Applicant in the Emergency at the Hospital [outside Canada] and performed the eye removal. She also performed a repair to the laceration and had 2 follow up appointments with the Applicant after his surgeries. The Applicant was referred to get a prosthetic and to be evaluated by an Ophthalmologist.

13[Name] Report confirms that the Applicant was fitted for and supplied with a prosthesis for his eye. A Surgical Report from the procedure was provided.

Receipts

14The Applicant provided the following receipts to verify his medical expenses:

i. Invoice from insurer [Name]: shows that the Applicant incurred $4,058.00 in medical expenses of obtaining the prosthetics that were not covered by his medical insurance. The Applicant has only claimed for $2,000 on his Application.

ii. Invoice from Hospital: shows that he was charged $6,735.00 for his medical care in Canada. The Applicant has not claimed for this in his Application.

iii. Claims listing: showing the amounts that the Applicant had to pay for the medical care he received at [Hospital outside Canada] and with respect to the follow up care he received which totaled $10,991.49 which was not covered by his insurance plan. The amount claimed by the Applicant is consistent with what is in the receipts provided by the insurance company showing which amounts were paid for by the Applicant.

ANALYSIS AND DECISION

15On review of the documentation and in light of the serious injuries incurred by the Applicant including the loss of his right eye, the CICB is satisfied, on a balance of probabilities, that the Applicant was a victim of a crime of violence as defined in section 5(a) of the Act.

16In assessing compensation for damages for pain and suffering the CICB has considered the fact that the Applicant did not in any way provoke the assault. The Applicant was on vacation in [City] and celebrating his birthday on the night of the incident with a group of friends and had no reason to expect that he would be assaulted. The Applicant lost his right eye as a result of the assault and the CICB accepts based on the Applicant’s account and the Medical Reports provided, and in particular the description of the Emergency Doctor in [outside Canada] that the injury was very painful. The patch that the Applicant had to wear for over two months was awkward and embarrassing. The CICB therefore awards the Applicant $10,000.00 in damages for pain and suffering, pursuant to section 7(d) of the Act.

17With respect to his expenses, the Applicant has provided invoices confirming that he incurred $10,991.49 in medical expenses that were not covered by his medical insurance and confirmation of the treatment he received in the form of medical reports. The CICB finds these expenses to be reasonable in the circumstances and awards the Applicant $10,991.49 as reimbursement for these expenses pursuant to section 7(a). The Applicant also incurred a further $2,000.00 in cost to obtain a prosthesis, which he has also provided an invoice and medical reports to support. The CICB also finds this expense to be reasonable and awards $2,000.00 towards the cost of the prosthesis.

AWARD

18The CICB orders payment as follows:

Subsection 7(1)(a) Expenses $12,991.49

Subsection 7(1)(d) Pain and Suffering $10,000.00

TOTAL AWARD (AND COSTS) $ 22,991.49

PAYMENT

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

The Applicant $22,991.49