CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Pamela Arnott
Indexed as: (Re) 1611-00434
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 loss of income, pain and suffering as a result of physical assaults that occurred on [date], 2015 where he claims to have sustained physical/psychological injuries. The incidents were reported to the Police and resulted in conviction.
DECISION
2The CICB approves the claim and awards the Applicant the sum of $13,502.96 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;
b. Income or pecuniary loss incurred as a result of his total or partial disability affecting (his/her) capacity for work pursuant to subsection 7(1)(b) of the Act; and,
c. Pecuniary losses resulting from his injury and any other reasonable expense that, in the opinion of the CICB, it is reasonable to incur, pursuant to subsection 7(1)(f) 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: Reports from the [Name] Police dated [date], 2015, [date], 2016 and [date], 2017; [Name] Health Systems triage and emergency assessment records from [date], 2015 and chart review from [date], 2016; [Name] Paramedic Service report dated [date], 2015; Medical Report from Dr. [Name] dated [date], 2017; [Name] Employer’s Report dated [date], 2017; WSIB report dated May 25, 2017; and the Application.
7The Applicant indicates that, on [date], 2015, he was in the washroom at work when a co-worker, the Offender, came behind him and hit him on the head. The Applicant lost consciousness and fell to the floor. The Offender continued to kick the Applicant while he was on the floor. Another person called 911 and the Applicant was taken to Hospital.
8The Police Report adds to this account by indicating that, after the Applicant was struck on the head, the Offender put his arms around the Applicant’s neck and choked him. The Police investigation revealed that the assault was unprovoked. The Offender was eventually convicted of assault causing bodily harm.
9The Applicant indicates that he had a concussion from the assault. He undertook physiotherapy to deal with the effects of the concussion, which include headaches and dizziness. In addition, the Applicant believes that he developed hypertension as a result of the injury. He was not able to work between [date] 2015 and [date] 2016 due to his injury.
10The Paramedic Report from [date], 2015 indicates that the Applicant had injuries to his head and face. He was conscious and ambulatory by the time that they arrived, but was unable to recall his date of birth. He had a wound on the left side of his head and swollen lips.
11The report from Dr. [Name], the Applicant’s Family Doctor, indicates that the Applicant had a concussion in addition to neck injury, cervical strain and lower back soft tissue injury. The Applicant was referred to several specialists including the Complex Injury Outpatient Rehabilitation Program in April of 2016. As of March 2017, [Family Doctor] indicates that the Applicant continued to suffer headaches and dizziness. [Family Doctor] indicates that the period of temporary disability was from [date] 2015 to [date] 2016. The [Name] Health System Medical Report (chart review) from May 26, 2016 indicates that the traumatic brain injury had healed by this date.
12The Applicant indicates that he received WSIB loss of income payment from his main employer [Name] of $14,200. However, he indicates that he was not reimbursed for his loss of wages from his part-time position at [Name]. The Applicant indicates that he was the sole income-earner for his family at the time of his injury.
13The Report from [Name] indicates that the Applicant had worked as a weekend sanitation worker for 16 hours each week. His bi-weekly pay preceding the injury was $477.13. The Report confirms that the Applicant did not return to this position following the incident. The total loss to the Applicant for 8 months and 2 weeks was $7,502.96.
14The report from the WSIB confirms that the Applicant stopped receiving benefits on September 26, 2017 when he was completely recovered from his injuries.
ANALYSIS AND DECISION
15For the following reasons the CICB grants the Application.
16With respect to the incident involving the Offender, section 11 of the Act provides that proof of conviction shall be taken as conclusive evidence that the offence has been committed. Accordingly, the Applicant need not prove that he was a victim of a crime of violence however he must still establish that he suffered injury as required by section 5(a) of the Act.
17The CICB accepts the Applicant’s evidence and the medical evidence that the Applicant suffered physical injuries as a result of the assault on [date], 2015. These injuries included concussion and concussive syndrome which necessitated a referral to the Complex Injury Outpatient Rehabilitation Program. The Applicant was unable to work for a period of 8 months as confirmed by his Family Doctor and the WSIB.
18The CICB finds the Applicant to be a victim within the meaning of subsection 5(a) of the Act as a result of the physical assault that was committed by the Offender. In assessing pain and suffering, the CICB has considered that:
a. the assault against the Applicant was sudden, unprovoked and violent;
b. the assault was forceful enough to cause short-term cognitive impairment;
c. the assault was forceful enough to cause a concussion followed by concussive syndrome;
d. the Applicant was the sole income-earner at the time of his injury and was working two jobs to support his family; and,
e. the injuries to the Applicant affected his ability to work for a period of 8 months.
Based on these factors, the CICB makes an award of $6,000.00 for pain and suffering.
19The 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 $7,502.96 for income loss, being the full amount lost by the victim during his period of disability.
AWARD
20The CICB orders payment as follows:
Subsection 7(1)(b) Income Loss $ 7,502.96
Subsection 7(1)(d) Pain and Suffering $ 6,000.00
TOTAL AWARD (AND COSTS) $13,502.96
PAYMENT
21THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $13,502.96
DATED at Toronto, this 31st day of October, 2017
______________________________________
Pamela Arnott, Member