Re 1606-03896, 2017 ONCICB 31

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: George Berrigan Date: February 10, 2017 Indexed as: (Re) 1606-03896

ORDER

Introduction

1The Applicant, who was employed as a Correctional Officer, asks the Criminal Injuries Compensation Board (CICB) to compensate him for injuries resulting from crimes 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 for pain and suffering and expenses as a result of being injured while escorting an institutional inmate.

2There have been no criminal convictions or charges laid in relation to the Applicant. A charge of assault was laid in relation to one of the applicant’s coworkers was “stayed” by the Crown.

Issue

3The issue before the CICB is whether or not the Applicant suffered any injury as a result of a assisting a peace officer in the execution of his law enforcement duties within the meaning of subsection 5(b) 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 Reports from Hospital, the Applicant’s Family Physician, and a Plastic Surgeon. The CICB has also reviewed a photograph submitted in support of the claim.

5The Applicant is an experienced Correctional Officer. The correctional officers at the institution are designated peace officers. On the date he and another officer were escorting a violent inmate from his cell. The inmate was initially handcuffed through a portal in the cell door. There had been prior agreement that each officer would take a side of the Alleged Offender. The door opened and the Applicant placed his hand on the inmate’s right arm. Suddenly the Alleged Offender kicked at one of the Applicant’s colleagues, striking him in the groin. During the struggle the Applicant’s right hand became jammed in the cell door and a portion of his ring finger was amputated and was jammed in the door. The middle finger was hanging by a small amount of tissue.

6As mentioned the Applicant suffered the immediate amputation of distal portion of the right hand ring finger. The third finger was reattached however the distal bone was fractured. The Applicant is right hand dominant. As one can appreciate the healing process was lengthy and difficult. After the third finger healed it still caused difficulty as the Applicant had no feeling and the finger continues to swell. As of the Application the amputated finger was open but healing.

7The loss and damage of the fingers caused issues with personal hygiene and household chores. He is undergoing therapy from an occupational therapist and has limits to his range of motion.

8The Applicant had psychological issues about returning to work when his hand was less than 100%. He is a musician and now has difficulties playing the piano and guitar at a level he once did. He has been diagnosed with Post-Traumatic Stress disorder (PTSD) and counselling is required. The pain in his hand causes him to be tired and groggy. His fingers have an extreme sensitivity to cold or hot temperatures.

9In this case the Applicant, a peace officer was assisting another officer, also a peace officer, was removing a violent inmate from a cell. A struggle broke out and the applicant’s fingers were jammed in a cell door causing serious injuries. From the CICB’s perspective the exchange falls within the auspices of section 5(b) of the Act, making the applicant a victim within the meaning of the Act and eligible for compensation.

10In arriving at an award for pain and suffering the CICB first considers the nature of the crime of violence as described herein. The Applicant was attempting to fulfill his duties as a peace officer when his fingers were jammed in a cell door.

11Next, the CICB considers the degree/nature of injuries suffered. The Applicant suffered a partial amputation of one finger and a fracture and re-attachment of another. The fingers were on the dominant hand. The CICB considers the pain, decreased motion and the appearance of the hand. The CICB also considers the impact on the Applicant’s hobby as a musician. The CICB considers the diagnosis of PTSD and the overall impact on the Applicant’s life.

12In consideration of the foregoing the CICB awards the Applicant $6,000.00 for pain and suffering.

13The Applicant has claimed a number of expenses. The CICB, being a government agency, requires receipts or supportive documentation to support expense claims. As the Applicant was injured at his place of employment it is expected that expense involved will be covered under the auspices of WSIB.

14The Applicant claimed treatment and travel for treatment expenses. There is no detail provided. As a result those claims are denied.

15The Applicant also claims loss of income expenses. He states that he lost overtime opportunities and WSIB does not cover him for 100% of his wages. He asks the CICB to fund the difference. In relation to the lost overtime, the CICB by practice does not compensate for overtime or possible earnings. The CICB sees no compelling reason to deviate from that practice in this case. As a result the claim for the loss of the extra money is denied.

16In relation to the apparent loss in the difference between regular salary and WSIB, based on the evidence in the claim brief, 85% of the Applicant’s net earnings were covered through a non-taxable WSIB benefit which results in income tax implications that are unique to each recipient of such benefits.

17Furthermore, during the period of disability, the Applicant did not incur expenses that are usually associated with working outside of one’s home such as, business attire, dry cleaning, public transit, gas and parking, day care for children, restaurant meals, and incidentals. As a result, in the absence of evidence to the contrary, it is the CICB’s view that the Applicant did not sustain an actual wage loss since the 15% difference is offset by the cost savings related to the above factors. The Applicant’s wage loss claim is thereby denied.

18Should the Applicant be awarded compensation as a result of a WSIB NEL award, the applicant must notify the CICB immediately since the CICB is entitled to be reimbursed from those funds for any amount of compensation it has awarded to the Applicant, pursuant to section 26(5.1) that states:

26(5.1) The Board is entitled to be reimbursed, out of any amount recovered by the applicant from the offender or any other party, for the amount of compensation awarded to the applicant.

Award

19The CICB orders payment as follows:

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

TOTAL AWARD $6,000.00

20The 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

21THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $6,000.00