Re 1706-01649, 2017 ONCICB 377

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Louise Charette

Date: December 20, 2017

Indexed as: (Re) 1706-01649

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, RSO 1990, c. C.24, as amended (the “Act”). The Applicant is seeking compensation for pain and suffering, treatment expenses as well as travel to treatment expenses as a result of an assault which occurred on [date] 2017 for which he alleges he sustained physical/psychological injuries. The incidents were reported to the Police however no suspects have been identified.

DECISION

2The CICB approves the claim and awards the Applicant the sum of $15,000.00 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.

4The Applicant must provide reliable evidence to support his claims for:

a. 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: Application submitted to the CICB, [Name] Police questionnaire, ambulance report, Hospital records from [Name] Health Care Centre, records from [Name] Health Sciences Centre.

Application

7The CICB reviewed the Application submitted. The Applicant indicates that on [date], 2017, he was shot by two strangers. He notes that he left his house around midnight to go to a gas station to purchase cigarettes. When he came home approximately one hour later he was shot in front of his townhouse. He recalls being conscious through the incident. He could not identify the suspects however he is positive he did not know them. He recalls staying on the ground until the ambulance came for assistance. He further notes that the Police advised his father that he was not the intended target.

8With respect to his injuries, the Applicant noted that he was shot 23 times in both legs, arms, chest, stomach and back. He underwent multiple operations during his hospitalization at [Name] as a result of this shooting. On [date] 2017, he was transferred to [Name] Health Care Centre for follow up treatment. He required rehabilitation. He notes he was required to attend physiotherapy and occupational therapy on a daily basis. He also noted that he saw a Psychologist on one occasion however this report is not forthcoming.

9The Applicant notes that he was discharged from inpatient therapy on [date], 2017 approximately 6 weeks after admission and that he will continue with therapy, benefitting from their services as an outpatient.

10The Applicant reports that following the attack, he was unable to move for some time. He notes that he still experiences pain to this day and as a result has to take pain medication every 2 to 3 hours. He also stated that he tires easily. In addition, his right lower arm is in a splint and he has no functional use of his right hand. According to him, his prognosis is unknown at this time however he believes that there may be nerve damage. He adds that this situation makes it more difficult for him to function as he is right handed. He hoped to be able to return to school however not being able to write may be a challenge for him. As a result, he is applying for ODSP. He notes that he is concerned about his future.

Police Services synopsis

11The Police questionnaire confirms that on [date], 2017, at approximately 2:00am, the Applicant was walking home when the crime of violence occurred. It indicates that as the applicant was approaching his residence he was shot 21-22 times by two males hiding in the bushes. A neighbour called 911 and the applicant was brought to the Hospital for treatment of his injuries. An extensive investigation revealed that this was a case of mistaken identity. The detectives believe that the intended target was a neighbour who arrived home shortly after the Applicant was shot. To date no suspects have been identified.

Records from [Name] Health Sciences Centre

12The CICB reviewed the Hospital records provided by [Name] Health Sciences Centre. The records show that the Applicant was admitted on [date], 2017 and remained in their care until [date], 2017.

13He was emergently brought to the operating room on [date] 2017 for the following procedures: trauma laparotomy for multiple gunshot wounds, splenectomy, repair of liver laceration, repair of 4 gunshot wound holes to the stomach, repair of 2 gunshot wound holes to the left diaphragm, exploration of a deep gunshot wound to the left neck and insertion of bilateral chest tubes.

14On [date], 2017 the Applicant was brought back to the operating room for the following procedures: gastric injury, I&D open fracture wounds, left gunshot wounds associated with fracture of the left femur, open reduction internal fixation with IM nail with proximal and distal locking screws for a proximal 3rd femoral shaft fracture with comminution, I&D right elbow with excision of multiple osseous loose bodies, decompression of the right ulnar nerve associated with a gunshot wound, I&D right distal both bone forearm fracture and open reduction internal fixation of dislocation of the distal radial ulnar joint and open reduction internal fixation of distal ulna. It was also noted that post-operative sutures were required and bruising was visible.

15The records also note postoperative complications such as fever, possible wound infection and thrombocytis. On [date] 2017, it was noted that the Applicant underwent an ultrasound for collection due to infection and that he was treated with antibiotics and followed by the infectious disease service. It was also noted that as a result of the thrombocytosis, he was given aspirin daily.

16The discharge diagnosis notes multiple trauma, multiple gunshot wounds to his thigh, right hand, left neck and abdomen. The injuries were repaired in the operating room and it was considered that he was healing well from his injuries. It was found that he had improved mobilization but would benefit from rehabilitation. As a result he was discharged to [Name] Health Care Centre.

Records from [Name] Health Care Centre

17The [Name] Health Care Centre is a rehabilitation centre for complex continuing and long term care. The CICB reviewed the records provided which confirm the Applicant sustained multiple gunshot wounds in both right and left thighs, abdomen and back. All wounds were considered clean without evidence of infection or drainage upon admission. It was noted that the Applicant came to them non weight bearing through the right arm requiring rehabilitation. The goal was to assist him in increasing his strength and functional independence.

18The consultation report confirms the Applicant’s physical injuries following multiple gunshot wounds. The history and physical report references to multiple procedures. It was noted that the right hand was splinted to the fingertips and below-elbow dorsal blocking splint on the right upper arm. Due to this, they were unable to complete a neurological exam and assess the neurological status of the right arm and hand however the rest of the body showed no neurological deficits. It was noted however that it appeared the applicant had suffered a peripheral nerve injury. In addition, the notes indicate that upon admission sleep issues and feelings of depression were identified.

19The patient discharge summary indicates that the Applicant had sustained ulnar nerve injury and impaired sensation to his right hand. It was noted that he would require assistance from his family for everyday activities.

ANALYSIS AND DECISION

20The CICB accepts the Applicant’s uncontested and consistent narrative of the vicious assault suffered by him. The allegations were found to be credible by the [Name] Police Services. Detectives believe it was a case of mistaken identity.

21The Applicant states that he suffered the following physical injuries as a result of the crime of violence; ongoing pain, tires easily, right lower arm is in a splint and he has no functional use of his right hand which may possibly be associated to nerve damage. This makes it more difficult for him to function as he is right handed.

22The Applicant did not note psychological injuries aside from the fact that he is concerned about his future. As he only met with a Psychologist once a report is not forthcoming. The [Name] Health Care Centre noted sleep issues and depression upon admission. In considering the CICB did not have any therapy report at its disposal it was therefore limited insofar as assessing the severity of the psychological injuries directly related to the incidents. Notwithstanding, the CICB is willing to accept that the incidents had some emotional impact upon him.

23The CICB finds on a balance of probabilities, not only that the Applicant 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

24In assessing compensation for pain and suffering the CICB has given consideration to all the documentary evidence that was presented. The CICB was mindful of the circumstances surrounding this incident and the fact that this was an unprovoked attack, possibly a case of mistaken identity and injuries suffered by the Applicant. As a result of the crime of violence, the CICB is awarding the Applicant $15,000.00 for pain and suffering.

25The Applicant is also requesting compensation for travelling to treatment however it was noted that the Applicant does not drive therefore this is not found to be related to kilometers travelled. The CICB is mindful that the Applicant continued attending the [Name] Health Care Centre for rehabilitation as an outpatient after discharge however no details were provided and no supporting receipts were provided for transportation. As the CICB requires supporting documentation, this part of his claim is dismissed.

26The Applicant is also requesting compensation for ambulance expenses however he did not provide receipts supporting this part of his claim. The CICB requires 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 this expense claim.

27The Applicant lists in his Application that there are other expenses referring to vocational rehabilitation however he did not provide the CICB with details nor necessary documents to support his claim. Therefore compensation for these expenses is also denied.

AWARD

28The CICB orders payment as follows:

Subsection 7(1)(d) Pain and Suffering $15,000.00

TOTAL CURRENT AWARD $15,000.00

PAYMENT

29THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $15,000.00