CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: James Graham
Indexed as: (Re) 1609-04871
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 medical expenses, treatment expenses, travel expenses, pain and suffering and loss of income as a result of a physical assault that occurred on [date], 2016 where he sustained physical and psychological injuries. The incident was reported to the police but did not result in a conviction.
DECISION
2The CICB approves the claim and awards the Applicant the sum of $5,579.20 for the reasons set out below.
ISSUES
3The absence of a conviction 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.
HEARING
4The hearing was conducted in writing on the basis of the materials contained in the Applicant’s file.
Documentary Evidence
5The CICB received the following documents with respect to the claim:
The Application and a supplemental statement dated September 23, 2017,
[Name] Regional Police incident report,
[Name] Hospital Fracture Clinic notes,
Dr. [Name], Family Doctor, report dated March 28, 2017, and
Five clinical notes from Dr. [Name] from [date], 2016 to [date], 2017.
6The Applicant says that he was living with his sister in August of 2016. His sister’s husband, the Alleged Offender, became violent towards his sister and engaged in a dispute which moved out onto the street. The Applicant heard his sister scream, went outside and found the Alleged Offender over her in such a way that he appeared to be strangling her. The Applicant attempted to intervene on behalf of his sister but the Alleged Offender knocked him down with his fist, knocked him down a second time, and hammered the Applicant about the head with his fists. He also kicked the Applicant. The Applicant believed his leg was broken as a result of the first fall. The Police arrived and the Applicant was taken to Hospital by ambulance.
7The Applicant’s sister put him out of her house a week later because the Alleged Offender was being released from jail. The Applicant was obliged to move in with his step-mother [Name], having no money of his own to pay rent, and he stayed there until he secured work in May, 2017.
8The Applicant states that currently his left leg deflects outwards giving an awkward gate to his walk and that he has a great deal of difficulty rising from the floor. He says walking or standing is painful after an hour and he must sit. He is concerned for his safety because of the violent propensity of the Alleged Offender.
9The Applicant has advised the CICB on September 5, 2017 the loss of income issues were resolved and he does not wish to pursue that aspect of his claim.
10[Name] Regional Police records are consistent with the Applicant’s description of events on [date], 2016. When Police arrived on the scene they found the Applicant in extreme pain and unable to stand on his own. The Alleged Offender was charged with three counts including one count of assault against the Applicant and one count of assault against his sister. A week later he pleaded guilty to assaulting the Applicant’s sister and the charge concerning the Applicant was withdrawn.
11[Name] Hospital Fracture Clinic records confirm a tibial plateau fracture. When examined two weeks after the incident, the Applicant’s knee was still very swollen and sore. Doctors concluded that surgical repair was not feasible, and a joint replacement might be required. However, the Applicant’s knee could not be examined in detail on that day because of the pain. The Orthopaedic Surgeon recommended allowing the injury to heal while maintaining the option of replacement depending on future pain and instability.
12Hospital records show that the Applicant had pre-existing difficulty with his left knee since age thirteen. He had a traumatic detached patella due to an injury at that age, which was repaired surgically and an arthroscope to remove cartilage in 1987. In 2006 he suffered his first tibial plateau fracture.
13Subsequent visits to the Surgeon showed progress in healing with his knee having no significant instability and no obvious misalignment. On January 18, 2017 the Surgeon found not very much swelling, a full range of motion in flexion and extension, and no obvious instability. X-rays showed the defect healing appropriately. He discontinued checkups leaving it to the Applicant to contact him if there are further problems.
14The Applicant’s Family Doctor reports that the Applicant was struck in the head, kicked in the abdomen and suffered damage to the tibial plateau. He prescribed watchful waiting to see if there is ongoing or recurrent pain which would lead to consideration of knee replacement. He said that the Applicant was recovering but remains unable to kneel. He states that the Applicant was unable to work from the time of the incident until December 1, 2016.
ANALYSIS AND DECISION
15The CICB accepts the Applicant’s description of the events of [date], 2016 as confirmed by the [Name] Regional Police report. Therefore, the CICB finds, on the balance of probabilities, that the Applicant is the victim of a crime of violence.
16The CICB also accepts that the Applicant suffered a tibial plateau fracture to the left knee. It is clear from the medical records that there was considerable pain associated with this fracture. The knee had been the subject of previous surgical intervention and so was fragile before the incident and remains so now.
17The Applicant is still suffering from pain but the future of the knee has not yet been determined. He lives in fear of the Alleged Offender because of that person’s known propensity for violence.
18Taking into account the medical records and the statements of the Applicant, the CICB determines that an appropriate award for pain and suffering is $5,000.00.
19The CICB has received no receipts for any of the expenses claimed by the Applicant. Therefore, the CICB denies those claims.
20The CICB has received no medical prescriptions for appliances such as leg braces, nor any estimates for the costs of such items. The CICB therefore denies those claims.
21The Applicant has claimed travel expenses for medical treatment from [City] to [City]. The Applicant had no funds following the incident and was obliged to move to his step-mother’s home. The date of the move is uncertain. However, the [Name] Hospital records show the Applicant’s address as [address] on his visit on [date], 2016 and as [different address] on his subsequent visit on [date]. The Applicant states that he moved back to the [City] in May of 2017. Therefore, the CICB finds that the trips to [City] in November 2016 and January 2017 are compensable. The distance from [City] to the [Name] Hospital is 362 km. Compensation will be paid for two trips totaling 1,448 kilometres at $0.40 per kilometre, being $579.20.
AWARD
22The CICB orders payment as follows:
Subsection 7(1)(a) Travel Expenses $ 579.20
Subsection 7(1)(d) Pain and Suffering $5,000.00
TOTAL AWARD $5,579.20
PAYMENT
23THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $5,579.20
DATED in Toronto this 23rd day of November, 2017
James Graham, Member