CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: John Radmore
Indexed as: (Re) 1501-97978
ORDER
Introduction
1The Applicant brings this Application to the CICB in relation to injuries that he suffered as a result of an assault committed against him by a stranger (the Offender) on [date], 2014. He has made claim for his pain and suffering, medical expenses and loss of income.
2In written submissions to the CICB the Applicant advised that on the incident date he parked his car on a city street. The Offender who was riding a bicycle stopped in front of his vehicle, spit on the Applicant’s windshield and uttered profanities. The Applicant ignored him and entered a store. While he was inside he was advised that the Offender was preparing to damage his vehicle with a large rock. The Applicant exited the store and was physically attacked by the Offender. The Applicant was pushed, punched, kicked and threatened with death. He was knocked to the ground where the Offender stomped on his leg causing it to fracture. He continued the assault by forcing his arm backwards until it dislocated. When bystanders intervened the Offender fled on his bicycle.
3Police Reports provide an account of the incident that is consistent with the Applicant’s written submissions to the CICB. The investigation led to the Offender being arrested and charged with aggravated assault and utter threats to cause bodily harm. He was convicted of assault causing bodily harm and sentenced to incarceration for 9 months followed by probation for two years.
Evidence
4Hospital Reports reveal that on the incident date the Applicant presented at the emergency ward with a left leg and right shoulder injury. It was determined that he had suffered a left tibial plateau fracture and a right shoulder dislocation. He underwent a closed reduction of his shoulder dislocation that had to be performed again later in his hospitalization. On [date], 2014 an open reduction with internal fixation of his left leg fracture was performed. His pain was managed and his condition monitored until his discharge on [date], 2014 with arrangements made for follow-up appointments. Clinical reports indicate that the Applicant attended appointments until [date], 2015. At that time the Applicant’s left tibia fracture had healed well and was stable. He was continuing to experience instability in his right shoulder. Future surgery to stabilize his shoulder was discussed.
5Photographs of the Applicant’s left leg (post-surgery) were reviewed at the hearing.
6In a self-report of injuries the Applicant advised that in addition to his leg and shoulder injuries he suffered soft tissue injuries to his head and jaw and extensive body bruising. He required a wheelchair to ambulate when he was discharged from the Hospital. He slept poorly due to his ongoing pain. The Applicant favours his right side and the use of his left arm due to his injuries. He required narcotic medication for pain management. He has been left with difficulties walking extended distances and climbing stairs. The Applicant is unable to participate in previously enjoyed physical activities such as soccer and he is physically unable to perform physically demanding work around his home.
7Psychological injuries include: severe anxiety when he leaves his home, mood swings, irritability that has led to family disputes, ongoing fear of the Offender and social withdrawal stemming from embarrassment at his victimization.
Claims
8Ambulance (portion not covered by other sources): $10.00
9Hospital (portion not covered by other sources): $960.00
10Prosthetic devices: $124.75
11Hot water bottle: $8.39
12Doctor’s letter: $50.00
13Loss of Income incurred by the Applicant’s wife while caring for the Applicant: The Applicant has submitted Canada Revenue reports that indicate that his wife’s employment income was $67,993.00 in 2013 and $63,119.00 in 2014 (year of incident). Victim Service reports indicate that the Applicant required time off work to care for her husband while he was recuperating from his injuries. A Medical Report indicates that the Applicant could return to work at the beginning of [date] 2014. Employer’s reports have not been submitted to the CICB.
Issues
14The CICB must determine the following:
Whether the Applicant suffered injuries as a result of crimes of violence within the meaning of section 5(a) of the Act.
If so, an appropriate level of compensation, if any, for the Applicant’s pain and suffering. Whether the Applicant should be compensated for the claimed expenses/loss of income.
Analysis and Decision
15Having considered the evidence presented the CICB finds that the Applicant suffered bodily harm as a result of an assault. Accordingly, the CICB finds the Applicant to be a victim within the meaning of section 5(a) of the Act.
16In assessing compensation the CICB considered the violent and unprovoked nature of the assault, the physical injuries sustained, the medical procedures endured, the period of recovery, the physical issues that persist and the psychological impact upon the Applicant. Having considered these factors, the CICB awards $9,000.00 for pain and suffering.
17The CICB also awards $10.00 for ambulance expenses, $960.00 for Hospital expenses, $124.75 for prosthetic devices, $50.00 for a Doctor’s letter and $8.39 for the cost of a hot water bottle.
18The CICB considered the Applicant’s claim for loss of income incurred by his wife while caring for him during his recovery period. When considering income loss claims the CICB considers income prior to the claimed period minus benefits received. In this circumstance the CICB has not been provided with employer’s reports that could be relied upon to establish the period of time that she did not attend work, her average income prior to the claimed period and benefits she received during the claimed time frame. There can be many reasons for variances in annual income that include overtime income. For this reason, the CICB finds that the submitted Canada Revenue reports do not provide sufficient information to establish or calculate an actual income loss. In conclusion, the CICB denies the income loss claim on the basis that the Applicant has failed to provide sufficient evidence in support of the claim.
Award
19The CICB orders payment as follows:
Section 7(1)(a) Expenses $1,153.14
Section 7(1)(d) Pain and Suffering $9,000.00
TOTAL AWARD $10,153.14
20The 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
21THE CICB ORDERS that the following sums be paid forthwith to:
HIMELFARB PROSZANSKI IN TRUST FOR the Applicant $10,153.14
DATED at Toronto this 20th day of March, 2017
John Radmore, Member