Re 1205-88920, 2018 ONCICB 25

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicators: Christine McGoey, Veda Rangan, John Spekkens

Date: April 27, 2018

Indexed as: (Re) 1205-88920

SECTION 10 REVIEW

ORDER

Introduction

1This is a review of the decision of a single Member that denied a request to vary an order. The hearing for the request to vary was held on September 6, 2017. This Application is heard pursuant to section 10(1) of the Compensation for Victims of Crime Act, RSO 1990, c. C. 24, as amended (the "Act").

2The decision that is being reviewed is a result of an Application filed by the Applicant for compensation for injury arising from the commission of a crime of violence.

Summary of the Single Member Decision

3The Applicant filed a claim with the CICB as a result of an assault with a knife which took place on [date], 2012. An oral hearing was held on August 22, 2013, and the CICB, after finding the Applicant suffered injuries as a result of a crime of violence, awarded compensation for pain and suffering in the amount of $8,000, as well as $3,583.06 for loss of income, and $1,250.00 for therapy.

4The Applicant later filed to vary the pain and suffering from the original order pursuant to section 25 of the Act. The Applicant provided a report from a Physiotherapist, dated [date], 2017, which suggested that he might "be able to improve function of the left hand through aggressive strengthening/stretching exercises but may not regain the mobility and motor control of the (left) 5th digit".

5The single Member's decision on the variation request indicated that the medical evidence on file at the time of the original hearing revealed that the injury to his 5th digit on his left hand was a permanent injury which would result in a loss of mobility and control of that digit. The letter filed on the variation Application outlined the same prognosis and findings contained in the original medical and physiotherapy reports at the original hearing. There was no new evidence to support a finding that there had been any change in the nature or extent of the injuries sustained. The request to vary the original Order to provide for additional compensation for pain and suffering was denied.

Issue

6Pursuant to the CICB's Rules of Procedure, Rule 19.2 on Review Hearings, an applicant may request a review of the decision of a single member on the grounds that the decision contains a serious error of law or an unreasonable exercise of discretion. The purpose of the review hearing is to review the original decision of the single member, not to hold a hearing de novo. There must be compelling reasons before the original decision can be overturned

7The Applicant requested a review of the above decision on the basis that it was only recently that he understood that the injury to his hand was permanent. He testified that he still could not bend his finger and felt slight pain in the joint. In his view, the surgery done on his hand following the assault was not done properly. The Applicant supplied a letter from his Doctor dated [date], 2018, which stated that the Applicant had a permanent injury and was "unable to bend his L little finger".

8The Applicant also provided a letter dated [date], 2018 from Dr. [Name], which indicated that the Applicant had been attending the Rehab Centre from [date], 2018 to [date], 2018 (sic) and that he required further treatment to his left hand. The Applicant testified that he was unable to continue with this treatment due to financial challenges. According to Dr. [Name]., "Current functional restrictions still include: decreased grip strength of the L hand, difficulty with lifting/gripping and overcompensation with the right hand". The goals of further rehabilitation efforts would be "to improve his grip strength, fine pincer grip and reduce pain and inflammation and increase activities of normal living". At the review hearing the Applicant indicated that in addition to seeking an increase in the original pain and suffering award, he was also requesting funding for further rehabilitative treatments.

Decision

9The original hearing was approximately one and a half years after the crime of violence took place. The Applicant suffered a knife wound the 5th digit of his left hand which required surgery and physiotherapy. He testified at the original hearing that he could not make a fist, and had some cramping and numbness to the outer three fingers of his left hand. He also suffered from emotional injuries following the attack.

10We agree with the single Member that the original award for pain and suffering was based on evidence which indicated that the loss of mobility and control of the finger was very likely permanent. Accordingly we find that there was no error by the single Member in denying the request to vary the original award for pain and suffering.

11The Review Panel had recent information available to it regarding the potential benefits of further rehabilitative efforts. In light of this information the Review Panel authorizes up to $1,250.00 for further physiotherapy/rehabilitation sessions for the Applicant's left hand which are not covered by another benefit provider.

Award

12The CICB authorizes Dr. [Name] to provide further hand rehabilitation therapy to the applicant, the total cost of which is not to exceed $1,250.00. Payment will be made directly to Dr. [Name] at the Rehabilitation Center upon submission of an invoice and the required verifications from the Applicant. This authorization is effective from the date of this Order. The sessions must take place within the next 36 months.