(Re) 1608-04485, 2017 ONCICB 333

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Jo-Anne Hughes

Date: November 16, 2017

Indexed as: (Re) 1608-04485

ORDER

Introduction

1In this case, the Applicant claimed that he was assaulted by his step-father (the Alleged Offender).

2In this case, the CICB is required to determine whether a crime of violence has occurred as per section 5(a) of the Act, what injury, if any, arose from it, and the relevant circumstances affecting whether or not compensation should be awarded and if so, the amount.

3At the commencement of the hearing, the Panel confirmed that the Applicant was notified by way of a letter dated April 13, 2017, of the potential difficulties that he faced with respect to sections 17(1) and 17(2) of the Act, which read as follows:

17(1) In determining whether to make an order for compensation and the amount thereof, the CICB shall have regard to all relevant circumstances, including any behaviour of the victim that may have directly or indirectly contributed to his or her injury or death.

17(2) The CICB may, in its discretion, refuse to make an order for compensation or order a reduced amount of compensation where it is satisfied that the applicant has refused reasonable co-operation with, or failed to report promptly the offence to, a law enforcement agency.

Incident

4In his August 2016 submission to the CICB, the Applicant wrote that on the date of the incident (a week before his 20th birthday) he came into his house and found his step-father mistreating his sister. The Applicant tried to defend his sister and he was attacked by the Alleged Offender. During the altercation, the Applicant’s wrist was cut on a glass table so he had to go for emergency treatment.

5In sworn testimony at the hearing, the Applicant provided testimony which was consistent with his submissions to the CICB. During the incident, the Alleged Offender grabbed a knife and told the Applicant that he was going to kill him. The Alleged Offender put the knife away and picked up a log in the driveway. The Applicant picked up a round glass patio table to protect himself from being hit by the log. The log hit the glass and broke it. The Applicant was pushed and he fell onto the glass, slicing his wrist. The struggle continued for a short time until they noticed that the Applicant had a serious cut to his wrist which was bleeding badly.

6The Applicant said that when he went to the Hospital, he denied there was any foul play to cause his injury as he did not want to get CAS involved with issues at home.

Police Report

7The CICB received a report from the [Police] which confirmed the incident as described. The Applicant argued with the Alleged Offender over the Alleged Offender’s rough treatment of the Applicant’s [age] sister. At one point in the argument, the Alleged Offender produced a large butcher knife and held it at his side “to show him that I meant business”. The Alleged Offender’s claim of how he used the knife was confirmed by a photo of the incident and by other witnesses. Also, he told Police the knife was in his vehicle and there was no blood on the knife.

8During the altercation, the Applicant was described as picking up the glass table top and moving towards the Alleged Offender with it. The glass table got smashed during the incident and the Applicant sliced his wrist on the glass shards. Initially, Police charged the Alleged Offender with possession of a weapon dangerous to the public peace and assault with a weapon.

9In sworn testimony at the hearing, the Police Witness said that she interviewed several witnesses at the scene. The Alleged Offender was holding a log over his head when the Applicant held up the table. No witnesses confirmed the Applicant’s claim that the Alleged Offender said he was going to kill him. Also, the Police Witness said that if that allegation had been confirmed, the Alleged Offender would have been charged with uttering threats. The Police Witness confirmed that the weapons charge was related to the use of the log – not the knife.

10With respect to the potential applicability of section 17(1) of the Act, the Police Witness said there are always choices to walk away from a confrontation. The Applicant was angered at the treatment of his sister and at no time did he choose to walk away and avoid confrontation with the Alleged Offender.

11On [date], 2015, the Alleged Offender pled guilty to the weapons charge and the assault charge was withdrawn. In sentencing, he received a Conditional Discharge, with 15 months of probation and a five year weapons ban.

Injuries

12In his submission to the CICB, the Applicant wrote that he had two surgeries on his right hand – the date of the incident and a week later. Six tendons, a nerve and an artery were damaged. The second surgery was to “reconstruct” his right hand.

13Since the incident, the Applicant has had difficulties with the use of his right hand. He has difficulty lifting things, repetitive motions are difficult and he has issues with strength and flexibility. He was unable to drive his standard car, as his right hand could not operate the gear shift.

14The Applicant had a promising job opportunity, but he was unable to attend an interview which was scheduled for two weeks after the incident, because he was injured. Also, the Applicant’s injury prevented him from working, so he defaulted on his loans, car payments and credit card.

15Since the Applicant did not want to sign a peace bond with the Alleged Offender, he was kicked out of his mother’s house. He began living with his sister and went onto Ontario Works to get by and two years after the incident he was still there.

16On an emotional level, the Applicant was frustrated that he was unable to pay school tuition due to his inability to work. This overall impact on his education and possible career gave him a lot of stress. He feels embarrassed and self-conscious because he needs help doing things and he has to decline opportunities due to the ongoing effects of the injury to his hand.

17Also in his written submission to the CICB, the Applicant claimed that he had been cleared to work, but he could not do his regular job because of the ongoing effect of his injuries. Consequently, the Applicant has had difficulty becoming financially stable. He has been in recovery for almost two years and doctors have advised him that his hand will not change and these injuries will be with him for the rest of his life.

18In sworn testimony at the hearing, the Applicant said that he continued with physiotherapy until July 2015. However, he still could not use his hand to write, lift heavy objects or do buttons.

19The last time his hand/wrist was tested was October 2016. The Applicant said he doesn’t lift heavy objects with his right hand, avoids lifting things, can’t pick up a glass, usually wears clothing without buttons, hand is always in pain with constant numbness and a burning sensation. The Applicant doesn’t play sports anymore and he taught himself to use his left hand for writing.

Medical Reports

20In support of the Applicant’s claim, the CICB received several reports from the [Name] General Hospital. The injury was reported as “an extensive laceration to his right wrist with injuries to his tendons and median nerve”. The Applicant’s second surgery was on September 9, 2014 with Dr. [Name] and the Applicant was beginning his recovery quite well.

21The Applicant went back to the hospital in May 2015, after his physiotherapy ended as the Applicant felt that the grip strength in his right hand was much less than it should be.

22The Applicant and his Counsel claimed that his right hand was still unable to be used. However, the CICB only had reports up to [date] 2015, eight months after the incident. Accordingly, the Panel reserved its decision to September 5, 2017, pending updated medical reports on the condition of the Applicant’s hand.

Additional Medical Information

23The CICB received several reports and invoices from the Applicant’s Counsel on August 18, 2017. These are summarized as:

• A list of appointments and follow-ups with the Applicant’s surgeon, Dr. [Name]– 16 visits between [date] 2014 and [date] 2017.
• An Employer’s Health Assessment dated September 28, 2016 – issues with right hand: decreased strength, loses grip with heavy weights. Forthcoming appointment with Dr. [Name] for carpel tunnel syndrome.
• Reports from Dr. [Name]
  • February 2017: Applicant back working at [Employer] but has a burning pain in his arm by the end of his shift.
  • April 2017: This doctor also noted that the Applicant was on unpaid medical leave from [Employer] as his work was not up to par due to his hand injury.
  • May 24, 2017: A report from Dr. [Name] reported that despite the repairs to his right hand, there is still “a lot of bowing at the wrist” because of suspected flexor retinaculum insufficiency. He was working on the paint line at [Employer] but he had to stop because of his on-going wrist injury and his inability to sustain repetitive wrist rotations for long periods of time. Also, he cannot do heavy lifting with his right hand.
• [Name] , Occupational Therapist at the [Name] Centre for Health and Wellness reported from a July 12, 2017 assessment of the Applicant’s right hand, she found:
  • Grip strength is 67% less than his left hand
  • Physical Function (Quick Dash) was measured at 80% disabled
  • Also, the Applicant reported that he felt pain on a 9/10 scale in his hand, decreased sensation in his palm, it feels numb and he feels a sensation like an electrical jolt across his palm.

24The Applicant submitted receipts for his tests and medical reports:

• [Name] Centre for Health and Wellness: $80.00 (paid by Applicant)
• Shoppers Drug Mart prescription summary - January, 2016 – paid $27.59 for Peridex mouthwash.
• Pain relief medication receipts from July, 2016: $59.15

Expenses

25In his submission to the CICB, the Applicant claimed that he had the following expenses:

• Medical: $300
• Physio: $200
• Prescription Drugs: $200
• Counselling: $100

26However, the Applicant provided no receipts to support these claims.

27The Applicant submitted information on all his outstanding debts which included:

• NCO Financial for an unpaid OSAP loan
• Gore Mutual Insurance for unpaid car insurance
• Total Credit for unpaid phone bill
• Debt with Employment Canada (OSAP)

28The CICB received information from the Applicant which included an offer of a short term employment contract from [Employer], for $21.00 per hour from February 6 until April 28, 2017. However, on February 13, 2017 the Applicant was placed on an unpaid Medical Leave due to difficulties with the on-going effects of his injury. The time the Applicant was unable to work on his contracted employment was between February 14 and April 28, 2017 which is a period of ten weeks plus three days. During that time period, the Applicant could have worked for a gross pay of $21 X 40/hours = $840.00 per week, giving him an actual gross loss of $8,904.00.

Submissions

29The Applicant’s counsel summarised this incident as an altercation between two people which Police described as a consensual fight. The CICB should consider that no charges were laid against the Applicant as he was defending himself from the Alleged Offender.

Analysis and Decision

30The fact that there has not been a conviction of a crime of violence is not fatal to the 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 or death.

31In reaching its decision, the CICB has given careful consideration to all of the documentary evidence that was presented by the Applicant and the Police, the oral testimony of the Police Witness, the circumstances surrounding the incident and the injuries sustained. The CICB found the Police Witness’ oral testimony consistent with the Police Report on file. The CICB found the Police Witness to be credible and accepts her testimony. Furthermore, the CICB found the Police Witness’ testimony corroborated the Applicant’s written documents, insofar as the facts of the incident were concerned. Therefore, based on the facts and evidence, the CICB finds the Applicant, on a balance of probabilities, to be a victim of a violent crime causing injury and therefore, a victim within the meaning of section 5(a) of the Act.

32In assessing compensation for pain and suffering, the CICB has considered the nature of this incident and how it affected the Applicant. In this case, the Applicant received a severe injury to his right hand/wrist as a result of the incident described above. As a result, the Applicant had two surgeries on his right hand and he spent over two years trying to recover from his injury. Also, this injury interrupted his schooling and it prevented him from working to support his schooling. A July 2017 assessment reported that his grip strength was one third of normal and overall his right hand was measured at 80% disabled.

33As is the case with all applications that come before it, the CICB is required to consider the provisions of sections 17(1) and 17(2) of the Act, as cited at the outset of this Order. Therefore, the issues for the Panel are to determine whether the circumstances, including the Applicant’s behaviour, contributed, either directly or indirectly to the incident/injuries and whether the Applicant refused reasonable cooperation with police or failed to report promptly the incident to a law enforcement agency. Considering the facts of this case, section 17(2) is not a factor as the Applicant cooperated with Police as required.

34With respect to the Applicant’s contribution to the incident/injuries, the CICB considered all of the relevant circumstances, the documentary evidence provided by the Applicant, the oral testimony of the Police Witness and the documentary evidence of the police. The CICB believed the evidence of the Applicant that he used the glass table to defend himself against the Alleged Offender who was threatening him with a log over his head. As a result of this incident, the Applicant sustained a serious, life-altering injury which required two surgeries and left him with a significantly disabled right hand. We have considered the severity of this injury against a number of factors, namely: that the Applicant engaged in an argument which led to a physical confrontation when he was free to make a choice to avoid such a physical confrontation and the potential for serious injury.

35I have carefully considered the serious injury suffered by the victim against these relevant circumstances to determine whether compensation ought to be awarded to the applicant, without reduction, whether a reduced award of compensation should be granted or whether compensation ought to be denied. I have concluded that the Applicant’s conduct was disproportional to his serious injury and does not warrant a reduction from an award of compensation. Accordingly, I award the Applicant $9,000.00.

36The CICB generally requires original receipts and/or other supporting documentation for any expenses that are claimed, both to verify the amounts 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 the expense claims for: Medical, Physio, Prescription Drugs and Counselling.

37The CICB considered the expense claims submitted by the Applicant for Peridex mouthwash ($27.59). However, since no medical report linked that expense to injuries resulting from the subject incident, that expense claim is denied.

38The CICB considered the Applicant’s claim or claims in respect to [Name] Health Assessment (July 2017) and pain medication (July 2016), for which receipts and other supporting documentation were provided. The CICB finds such costs to be both reasonable and within the context of the Act and will therefore award $80.00 and $59.15 respectively for such costs.

39The CICB generally awards compensation only to cover expenses related to treatment of the injuries sustained (i.e. hospital, medication or therapy expenses) and not for expenses related to personal items/property/moving costs/financial debts. Having found no compelling reasons to deviate from its usual practice in this instance, the CICB declines to award compensation for the Applicant’s claims in respect to costs associated with: NCO Financial (OSAP loan), Gore Mutual Insurance, Total Credit and Employment Canada (OSAP).

40The CICB has considered the Applicant’s income loss claim. Considering the information provided, the Applicant showed that he had an employment contract which he only partially fulfilled due the ongoing effects of his injury. The analysis above showed that the Applicant lost actual gross income of $8,904.00 over a period of two months plus two weeks. 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 $2,500.00 for income loss (2 months @ $1,000.00 per month plus two weeks @ $250.00 per week).

Award

41The CICB orders payment as follows:

Section 7(1)(a) Expenses $ 59.15

Section 7(1)(b) Income Loss $2,500.00

Section 7(1)(d) Pain and Suffering $9,000.00

Section 22 Costs $ 80.00

TOTAL AWARD (AND COSTS) $11,639.15

42The 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

43THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $11,639.15

DATED in Toronto this 16th day of November, 2017

___________________________________________

Jo-Anne Hughes, Member