CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Louise Charette Date: November 02, 2017 Indexed as: (Re) 1410-97174
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, R.S.O. 1990, c. C.24, as amended (the “Act”). The Applicant is seeking compensation for pain and suffering, medical expenses, travel to treatment expenses and dental expenses as a result of a physical assault that occurred on [date], 2014 and for which the Applicant alleges he sustained physical/psychological injuries. The incident was reported to the police and resulted in the Alleged Offender being found guilty of failure to comply with probation in criminal court.
DECISION
2The CICB approves the claim and awards the Applicant the sum of $ 9,000.00 for pain and suffering for the reasons set out below.
ISSUES
3The absence of a conviction regarding the allegations in relation to the Applicant 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 the crime pursuant to subsection 5(a) of the Act.
4The Applicant must provide reliable evidence to support his claims for 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: [Name] Police Services synopsis and Court documents, Hospital Records from [Name] Hospital as well as Hospital Records from [Name] Health Centre.
Police Services Synopsis
7The Police synopsis reveals that on [date], 2014 the Applicant was residing in a shelter where he had to share a bedroom with the Alleged Offender and two other residents. It was noted that night the Applicant was in bed sleeping when he was awakened by the Alleged Offender turning the bedroom light on. The Alleged Offender then confronted the Applicant, accusing him of stealing his cellular phone. When the Applicant denied stealing it the Alleged Offender punched him. Shortly thereafter the Alleged Offender grabbed the sheet from the Applicant’s bed, set it on fire and tossed the lit sheet at the Applicant striking him in his chest. The Applicant was the able to run out of the room however the Alleged Offender followed him and stabbed him with an edged weapon in his head, back and shoulder area. During the assault, the Alleged Offender threatened to kill the Applicant. The Applicant was eventually able to make it to the front desk where he requested police assistance.
8The Police synopsis also reveals that prior to leaving the scene the Alleged Offender set his own bed on fire as well as the Applicant’s. The Alleged Offender was also alleged to have taken property belonging to the Applicant prior to police arrival.
9The Police synopsis confirms the Alleged Offender was charged with the following offences: assault, assault with a weapon x 2, aggravated assault, assault with a weapon, uttering threats, arson cause damage to property, arson with disregard to human life and robbery with violence.
Injuries suffered by the Applicant according to the Application
10In his Application, the Applicant alleges that he suffered the following physical injuries as a result of the crime of violence: burns to his body, head injury, stab wounds to the head, back and left arm, fracture to his right shoulder blade, depressed skull fracture, brain contusion, fractured jaw, pain in head, loosened teeth, nerve damage and memory loss. The Applicant also reported feeling unsafe.
Hospital Records
11The Hospital Records provided to the CICB confirm the Applicant sustained multiple stab wounds; one to his left shoulder, left trapezius region and another in front of his ear. Imaging showed a skull fracture with a left temporal contusion and hematoma. The Doctor also noticed lack of movement and swelling of the upper lip as well as a laceration of the ear.
12As a result of the Applicant’s injuries, the Doctor performed the following procedures: left temporal craniotomy, elevation of depressed skull fracture, debridement and removal of bone fragments from brain and debridement of contused soft tissues. There was also an evacuation of hemorrhage and brain contusion. There was reconstruction of the bone using four mini plates and 4mm screws. The stab wounds and lacerations were closed and antibiotics were prescribed throughout.
Health Centre Hospital Records
13The Applicant was transferred to the [Name] Infirmary on [date], 2014 where he received follow up care until he was discharged on [date], 2014. During his stay at this Centre while recovering, the Applicant also benefitted from support with community connections including housing and ODSP. The discharge summary recommended the Applicant take the prescribed medication, that he follow up with his family physician and hospital doctor and also follow up with the neurosurgery clinic later on in December. A CT head scan was arranged. It was noted that the Applicant was on ODSP at the time.
14The Hospital provided additional information with respect to the Applicant which is not related to the crime of violence as it pre-dates the incident. It should be noted however that the Applicant had previously been assessed by psychiatry who noted a discharge diagnosis of schizophrenia. When asked about traumatic past events, the Applicant described being stabbed in the early 2000’s.
15On [date] 2014, the Applicant presented at the neurosurgery clinic at [name] Hospital for follow up. The Doctor noted that the Applicant was complaining of some mild pain near the wound from his left temple and electric shock feelings around the site as well. The Applicant also reported occasional headaches and some sensitivity to his jaw when moving extensively. It was also noted that the Applicant still had some shoulder pain when lifting his right arm above the horizontal line. Otherwise, the Doctor reported that the Applicant was doing well and on examination his wound was found to have healed however very mild swelling was found on his left subcutaneous tissue. The Doctor also reported that the Applicant underwent a CT head scan on [date], 2014 which showed no complications nor signs of infection. The Doctor advised the Applicant that due to the current imaging findings that there was nothing more that could be done and that he did not require further follow up. He was discharged from the neurosurgery clinic as a result.
ANALYSIS AND DECISION
16The fact that the Alleged Offender was not found guilty of the offences in relation to the Applicant does not mean that the CICB is precluded from making an order for compensation. Section 16(1) of the Act provides that the CICB can make an order for compensation whether or not the person was prosecuted for or convicted of the offence giving rise to the injury. Unlike criminal court, where guilt of an accused person must be proven ‘beyond a reasonable doubt’, the CICB operates using the civil standard of proof, that being ‘on a balance of probabilities’.
17The CICB accepts the Applicant’s uncontested and consistent narrative of the assault suffered by him. The allegations were found to be credible by [Name] Police Services and as such the Alleged Offender was charged accordingly. Further, the Hospital records confirm the crime of violence occurred.
18Therefore, the CICB finds on a balance of probabilities that the Applicant is a victim of a crime of violence. The CICB now needs to determine whether the injuries resulted from the crime pursuant to subsection 5(a) of the Act.
19The Applicant reported that he suffered the following physical injuries as a result of the crime of violence: burns to his body, head injury, stab wounds to the head, back and left arm, fracture to his right shoulder blade, depressed skull fracture, brain contusion, fractured jaw, pain in head, loosened teeth, nerve damage and memory loss. The Applicant reported the following psychological injuries: feeling unsafe. Hospital records confirm these injuries.
20In assessing compensation for pain and suffering the CICB has given consideration to all of the documentary evidence that was presented. The CICB was mindful of the circumstances surrounding this incident, the fact that it would appear this was an unprovoked attack as well as the injuries suffered by the Applicant. The CICB awards $9,000.00 to the Applicant for pain and suffering.
21The Applicant is also requesting compensation for medical and dental expenses however he did not provide receipts supporting this part of his claim. The CICB generally requires receipts and/or other supporting documentation for any expenses that are claimed, both to verify the amount claimed and to confirm that such costs were not covered by other sources, such as private insurance. In the absence of such evidence, and having found no compelling reason to deviate from its usual practice in this instance, the CICB denies these expense claims.
22The Applicant is also requesting compensation for travel to treatment expenses however did not provide any supporting details. The CICB’s practice is to consider travel costs to treatment only if the Applicant was required to travel more than 40 kilometers each way. Further, there is no letter from any treatment provider verifying the dates of treatment and distance travelled. Therefore this part of his claim is also dismissed.
AWARD
23The CICB orders payment as follows:
Subsection 7(1)(d) Pain and Suffering $9,000.00
TOTAL AWARD $9,000.00
PAYMENT
24THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $9,000.00
DATED at Toronto, this 2nd day of November, 2017.
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Louise Charette, Member