Re 1702-00342, 2017 ONCICB 326

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Keith Forde Date: November 07, 2017 Indexed as: (Re) 1702-00342

ORDER

Introduction

1The Applicant asks the Criminal Injuries Compensation Board (CICB) to compensate her for injuries resulting from alleged crimes of violence which occurred on [date], 2014, in accordance with the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “Act”). She is seeking compensation for pain and suffering incurred from one act of assault and robbery, perpetrated by the Alleged Offender, an unknown person. The Applicant is also claiming for loss of income/wages and future expenses for counselling. The Alleged Offender was never apprehended and remains at large.

Decision

2The CICB approves compensation to the Applicant in the amount of $10,000.00 for pain and suffering and $3,000.00 for loss of income/wages and $2,400.00 for future counselling for the reasons set out below.

ISSUES

3The Applicant is required to prove, on a balance of probabilities, not only that she was a victim of a crime of violence, but also that as a result of this crime of violence, she suffered an injury pursuant to section 5 (a) of the Act;

• The CICB shall make an assessment of the severity of injuries caused by the assault and robbery committed by the Alleged Offender;
• The CICB must assess all relevant circumstances and whether or not compensation should be awarded and if so, the amount; and
• The CICB must determine whether the claim for loss of income/wages and future counselling is supported.

Evidence

Applicant’s Evidence

4The following is a summary of the facts and circumstances taken from the Applicant’s Application information and from the [Name] Police Services correspondences to the CICB.

5On the date of the incident, both [Name] Police Service and [Name] Police Service responded to the call. However, the incident was investigated by [Name] Police Service as it occurred in their jurisdiction. [Name] Police Service reported that the Applicant had finished her shift at Tim Horton's located [location] and was walking on [Road] to catch the bus to go to her home in [City].

6As the Applicant arrived in the area of [location], she was attacked from behind by an unknown Alleged Offender who attempted to rob her of purse. The Applicant noted to the CICB that the Alleged Offender struck her with what was suspected to be a piece of wood. The Alleged Offender tried to take the Applicant’s hand bag by striking on the back of her head multiple times. The Applicant held onto her bag and the Alleged Offender dragged her around trying to dislodge her handbag from her grip. The Applicant was struck several times and her cell phone was taken. As a result of the assault, the Applicant collapsed to the ground.

7A taxi was flagged down and transported the Applicant to [Name] General Hospital where she was stabilized and subsequently transferred to [name] Hospital. A search of the area by [Name] Police Service and [Name] Police Service did not locate or identify the Alleged Offender.

8The Applicant also provided the CICB with various documents in support of her claim.

9The CICB was in receipt of a Medical Report from [Name] Hospital which noted that the Applicant presented with multiple face fractures, multiple scalp laceration, Left supraorbital laceration and significant swelling to her left eye.

10The Applicant was admitted to the Hospital and the following injuries were noted: Left frontal SAH and SDH, and pneumocephalus; Multiple scalp lacerations; Left supraorbital laceration; Left orbital floor fracture; Complex Nasofrontal ethmoidal fracture; Medial herniation of left orbital fat and left lateral rectus muscle; Left lateral orbital wall; right maxillary antrum; and Multiple calvarial, skull base and facial bone fractures.

11The following surgical procedure was performed on the Applicant: Open reduction, internal fixation Facial Fractures; Bilateral Nasal Packing; Denver Splint Application; and Left orbital floor repair with med pore.

12The Applicant was discharged from [Name] Hospital on [date], 2016 with follow-up instructions.

Injuries

Physical

13The Applicant noted the following injuries in her application to the CICB:

• Brain hemorrhage;
• Cracked/fracture to skull;
• Black and swollen left eye;
• Herniated left eye muscle;
• Fractured nose;
• Swelling and bruising to face and hands;
• Residual pain in head and eye.

Psychological/Emotional

• Residual reoccurring nightmares;
• Anxiety;
• Depression;
• Shaken confidence;
• Fearful of being out in public alone;
• Reoccurring headaches;
• Difficulties with concentration;
• Scared;
• Lack of confidence;
• Hopeless;
• Altered physical appearance to due plastic surgery; and
• Forced to reduce school caseload from 7 courses to 2.

Analysis

14The fact that there has not been a conviction does not mean a denial of this Applicant’s claim. Section 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 CICB must determine whether the Applicant was the victim of a crime of violence when the Alleged Offender assaulted and robbed her on [date], 2016.

15In this matter, the Applicant alleges that she was assaulted and robbed as she was in the area of [location] while she was intending to board a bus on her way home from work. The Police investigation of the incident was consistent with what the Applicant reported to the Police and consistent with the head injuries she suffered.

16The CICB makes its findings on a balance of probabilities, considering the aggregate of the evidence presented. On this basis, the CICB finds the Applicant to be a victim of an assault and robbery. The CICB therefore finds that the Applicant to be a victim within the meaning of section 5(a) of the Act.

17In assessing compensation for pain and suffering, the CICB has considered all of the documentary evidence that was presented. The CICB was mindful of the circumstances of this incident and the physical and emotional injuries suffered by the Applicant and considered the following aggravating facts:

• The nature of the assault and robbery;
• The extent of the physical injuries sustained;
• The medical intervention required;
• The surgical operations required;
• the period of hospitalization;
• That a weapon was used in the commission of a crime;
• The associated period of recovery; and
• The ongoing emotional impact of the assault upon the Applicant.

18Having considered all of these factors, the CICB assesses compensation for pain and suffering in the amount of $10,000.00

19With respect to the Applicant’s claim for income loss, the CICB notes that it generally requires supporting documentation such as medical confirmation of the period of disability. The CICB is aware from the medical reports that the Applicant was admitted to the hospital on the day of the incident being [date], 2016, and discharged on [date], 2016. The CICB also took note that the Applicant was a part time employee at her place of employment and had started to work at the said place a month previously. Since the evidence indicates that there was a period of convalescence, under these circumstances the CICB finds it reasonable to award a contribution of $3,000.00 towards such costs.

20The CICB authorizes up to $2,400.00 (exclusive of tax) for counselling expenses to be paid directly to a qualified treatment provider upon receipt of a curriculum vitae outlining the credentials of the service provider (unless the CICB already has a copy on file). These sessions can only be accessed when the therapy sessions are not covered by other sources, such as the Applicant’s place of employment or insurance benefits. Therapy sessions should be completed within 36 months of receipt of this Order. It is the CICB’s practice to award up to $100.00 per session for therapy, or up to $125.00 per session for registered psychologists. Payment will be made directly to the treatment provider on a monthly basis, upon submission of an invoice and the required verification from the Applicant.

Award

21The CICB orders payment as follows:

Section 7(1) (a) Future counselling $ 2,400.00 Section 7(1) (b) Income Loss $ 3,000.00 Section 7(1) (d) Pain and Suffering $10,000.00

TOTAL AWARD (AND COSTS) $15,400.00 Less: Preauthorized treatment costs $ 2,400.00 TOTAL CURRENT AWARD $13,000.00

22The 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

23THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $13,000.00