(Re) 1704-01019, 2017 ONCICB 331

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicators: Christie Jefferson

Veda Rangan

Date: November 16, 2017

Indexed as: (Re) 1704-01019

SECTION 10 REVIEW

ORDER

Introduction

1This is an Application for a review of an Order by a single member, heard by the Criminal Injuries Compensation Board (CICB) on September 26, 2017. This Application is heard pursuant to section 10 (1) of the Compensation for Victims of Crime Act.

Original Order

2After the oral hearing on September 26, 2017, a single Member of the CICB found the Applicant compensable for injuries suffered as a result of a crime of violence. The single member found that the then 82 year old Applicant was assaulted without provocation by a female stranger. She was hit on the side of the head causing her to fall and hit her elbow. Then the stranger came back and kicked the Applicant in the stomach and chest area and spit on her. The woman was arrested, charged and convicted of assault causing bodily harm.

3The Member found that the Applicant suffered physical injuries. According to the medical documentation cited in the decision, they included cuts to the Applicant’s left elbow and bruising on her foot. She was unable to move or walk due to muscle pain and soreness which also affected her ability to sleep. She had to use a cane for two weeks. The Applicant’s oral testimony referred to her emotional injuries, including the fact that the incident had a profound impact on her sense of personal safety. The Applicant remained hyper-vigilant and fearful that the Offender would return. The Applicant advised the CICB that immediately after the incident she suffered nightmares and flashbacks as well as experienced depressed and anxious moods.

4The Member awarded the Applicant $3,000.00 for pain and suffering, $2,056.00 to pay for the cost of replacing the exterior portion of the Applicant’s cochlear implant, and $1,200.00 for future therapy. The Applicant’s claim relating to travel to treatment was denied as the distance was less than the CICB’s 40 kilometre minimum distance required for reimbursement.

Issue

5The Applicant requested a review of the Member’s Order as she felt the amount of compensation for the pain and suffering she experienced was inadequate. The Applicant indicated that important physical and emotional injury information in the documentary evidence was not considered in determining the appropriate award. The issue is whether the Original Order demonstrates a failure to properly exercise discretion or an error in law.

Decision

6A review hearing is a review of the sufficiency of the original decision and will not be interfered with unless the original decision demonstrates a failure to properly exercise discretion or an error in law.

7This Panel has carefully reviewed the entire file and the Original Order and finds the Member failed to consider the entire medical and therapy evidence found in the Applicant’s claim and the Applicant’s written submissions on injuries in determining the appropriate quantum for pain and suffering. The Member’s failure to consider all the evidence is an error of law because the error of law was material (not peripheral) to the reasoning of the Member and it played an essential part in arriving at the result of a $3,000.00 award for pain and suffering.

8For example, the Member did not mention in his summary of physical injuries suffered as a result of the assault, the lower cracked ribs the Applicant suffered, which were diagnosed a month after the incident. While the medical documentation listed lower rib fractures, the Member did not go on to note that this was also likely caused by the assault as indicated in the documentation. The Member notes that no medical treatment was required or performed, but did not indicate that there is no treatment for fractured ribs, just rest till they heal. The Member failed to link the rib fracture to the assault and therefore failed to adequately consider the lasting extent of the physical injuries on the Applicant.

9Next, the only reference to psychological injuries in the Original Order was the testimony of the Applicant at the hearing. However, there is a corroborating Therapy Report on file from a Psychiatrist which reported depression, ongoing nightmares, flashbacks, intrusive thoughts, anxiety, and sleep issues. Her Family Doctor referred the Applicant to a social worker for emotional distress, physiotherapy and pain medication. There was extensive documentation in the medical files that referred to the Applicant’s ongoing distress, social isolation, hyper vigilance, and that she had been left alone after the attack without adequate support for some time. The Member failed to adequately consider the extent of the physiological injuries on the Applicant.

10The Applicant comments at length in her written submissions and her Victim Impact Statement about the impact of the incident on her both physically and emotionally. She indicates that she had to sleep sitting up for quite a period, and that she could not change her bedding as she could not move. She had to use a “potty” and sometimes urinated on herself as she could not make it to the bathroom due to pain. She could not wash herself. Her ankle was so swollen and bruised she could not walk. She could not breathe properly or do any kind of activity for several weeks due to pain from her injured ribs as they were healing. Friends abandoned her and she lost trust in people. She became afraid of strangers, and felt anxious when leaving the house. She could not swim for three months and since she has no family in Canada, her swim mates are her friends and social support system such that she became depressed and isolated.

11Given the Member did not take into account the full extent of the physical and emotional injuries, or the aggravating factor that the victim of this serious assault was [age], this Panel finds that the amount of pain and suffering award is insufficient. Accordingly, this Panel is awarding the more appropriate amount of $10,000.00 for pain and suffering. The Panel considered that the vulnerable Applicant suffered numerous injuries that caused intense ongoing pain, affected her ability to care for herself on a daily basis, affected her mobility, and socially isolated her. Her cracked ribs and injured ankle took a long time to heal. She has diagnosed trauma from the attack by a stranger on the street, which was heightened by the inadequate care after the attack. This assault causing bodily harm has deeply impacted all aspects of her life at a vulnerable point.

12The Panel concurs with the Member that the amount of $2,056.00 for the uninsured portion of the Applicant’s cochlear implant damage is appropriate. As the Original Order did not take into account fully the psychological injuries to the Applicant as documented in the claim, this Panel is increasing the amount authorized for future therapy from $1,200.00 to $1,800.00 to assist her with her trauma symptoms.

13The CICB authorizes up to $1,800.00 (exclusive of any applicable taxes) for counseling 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 insurance benefits. Therapy sessions must 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 may be made directly to the treatment provider on a monthly basis, upon submission of an invoice and the required verification from the Applicant.

14The Panel is denying the travel to treatment claim as the distance traveled is less than the minimum of 40 kilometres one way as required by the CICB.

Award

15The CICB now orders payment as follows:

Subsection 7(1)(a) Physical therapy expenses (S.14 Award) $ 1,800.00

Subsection 7(1)(a) Expenses $ 2,056.00

Subsection 7(1)(a) Future counselling pre-authorized expenses $ 1,800.00

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

TOTAL AWARD $15,656.00

Less: Section 14 Award – already paid/authorized -$ 1,800.00

Less: Preauthorized treatment costs -$ 1,800.00

TOTAL CURRENT AWARD $12,056.00

16The 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

17THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $12,056.00