Re 1708-02504, 2018 ONCICB 30

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Louise Charette Date: May 28, 2018 Indexed as: (Re) 1708-02504

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 and travel to treatment expenses as a result of an assault which occurred on [date] 2015 and for which he alleges he sustained physical/psychological injuries. The incident was reported to the Police and resulted in a conviction in criminal court.

Issues

2A conviction may be taken as conclusive evidence that an offence has been committed pursuant to section 11 of the Act. Given that there was a conviction in this case, the Applicant is required to prove, on a balance of probabilities, that his injuries are the result of the crime pursuant to subsection 5(a) of the Act.

3The Applicant must also provide reliable evidence to support his claims for expenses actually and reasonably incurred as a result of his injury pursuant to subsection 7(1)(a) of the Act. The Applicant is seeking compensation for:

• Hotel expenses.
• Kilometers travelled to treatment.
• Future travel to treatment expenses.

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: Application, Victim Impact Statement, Submissions, Police synopsis, Hospital Records, Medical Report from Family Physician, copies of expense claims/receipts.

Incident

6The Applicant writes that on [date] 2015, he was visiting a family member and having a few drinks at a neighbour’s apartment when the two Offenders arrived. He states that at some point one of the Offenders told him he had taken $30 to purchase alcohol and in response the Applicant advised him he did not have the money. The Applicant states that soon after he was punched and kicked in the face. His recollection of the incident is limited.

7The Police synopsis indicates that they were called to assist an individual who was assaulted. They were advised that the male was apparently unrecognizable from his injuries, bleeding from the head. When Officers arrived at the scene, they observed the Applicant lying on the floor with a large amount of blood on the ground around him, his face covered. The Applicant was unresponsive and transported to the Hospital for further medical assistance.

8Both Offenders were charged and found guilty, one of aggravated assault and the other of assault causing bodily harm.

Injuries

9The Applicant sustained multiple fractures. He writes that he suffered; a nasal bone fracture with deviation of the nasal septum and bone. He also sustained a left orbit damage with soft tissue. Other physical injuries include; fracture of the medial wall of the left orbit, marked left ocular globe proptosis, hemorrhaging, displace right orbital fracture, laceration, tenderness to the temples fractures of the seventh, eighth and ninth ribs causing breathing difficulties. It was also noted that there was concern for rupture of the left optic nerve. In addition, he notes in his Application MRSA infection after surgery which required treatment, blurry vision with diplopia, swelling, pain and numbness, permanent vision loss, memory loss and concussion. Dental injuries were also noted. In his Victim Impact Statement he writes that as a result of the assault he required sutures, he was prescribed medication for pain management and was on a liquid diet while awaiting surgery which caused weight loss. Further, he also notes that his nose is not symmetrical.

10The Police Supplementary Occurrence Report notes the following injuries: blood inside nostrils, left side of his face swollen, slight reddish bruise on corner of eye, left eyelid deep purple in colour with swelling, small laceration under the left eye, bruise markings on forehead, nose crooked and broken. Police note that he appeared to have injuries to his facial area only.

11The Applicant also reports emotional/psychological injuries. He writes that since the assault he has struggled with mental health issues. He admits that anxiety has been a longstanding issue however, according to him the incident has intensified it and he found himself experiencing panic attacks more frequently. In his Victim Impact Statement he also indicates PTSD, isolation and not being able to work.

12Hospital Records indicate the following; a fracture to his nose with deviation as well as a blowout fracture to the left orbital bone. A Radiology Report notes “subtotal atelectasis of the left lower lobe with air bronchograms in the lung” and recent fractures were observed with respect to the sixth to eighth ribs. Maxillofacial surgery was required. The Applicant complained of blurry vision and tenderness to his temples. Concern was noted with respect to left optic nerve. On [date] he was transferred to the Health Sciences Centre (HSC) for an emergency consult regarding possible optic nerve injury and facial fractures. Hospital Records also indicate his past medical history includes anxiety and an assault in 2015.

13The HSC Records show the Applicant was admitted in relation to his left orbital floor fracture and nasal bone fracture. Records note edema to his face, laceration sutured on his left cheek, abrasion on his forehead and right cheek, ecchymosis to the left eye, his sclera was red and he had a subconjunctival hemorrhage. The Applicant was experiencing blurred vision in his left eye, pain due to broken ribs, headaches due to trauma, nausea and difficulty breathing through his nose. He was discharged on [date] with pain medication and antibiotics. Follow-up surgery was performed [date] 2015 which included; an orbital floor fracture repair and a closed nasal reduction which involved a plate, left orbital tube and packing.

14HSC Records also show post-operative facial pain and headaches as well as post-surgery infection. Dental pain was also noted; the plan for tooth #22, 23 was extraction. Records indicate that the Applicant thereafter presented to a dentist for what was considered abscess. No dental report was provided. Follow up notes from [date] 2015 states that the appearance of alignment was satisfactory, some fracture fragments left, hematoma had improved/resolved and that the remainder of study appeared stable.

15The HSC outpatient summary sheet notes a transfer from HSC and direct referral for consultation in ophthalmology.

16Other Hospital records show the Applicant presented to the Hospital with headaches and blurry vision in his left eye. Also, the Applicant had been given Tylenol 3 for pain management after surgery however he was reporting that the pain in his left eye and nose were unmanageable. The Records note post-operative facial pain and it was recommended he follow up with his primary care physician. X-rays were done.

17The Medical Report from the Family Physician confirms injury to nose, left orbit and residual pain. The Doctor confirms a left orbit reconstruction on [date] with closed nasal reduction. He also mentions multiple follow ups with ophthalmology. The Report further notes the Applicant’s anxiety and PTSD symptoms are persistent but lessening. He considers these injuries permanent but not disabling.

18The Psychiatry consultation report dated [date] 2016 indicates that the Applicant’s first complaint was anxiety. The Doctor also mentions panic attacks dating back to 2006. In addition, the Doctor writes that the Applicant himself wondered if he had PTSD symptoms advising that following what he described as a “police beating”, he started noticing these related symptoms which are triggered when he sees police. The Report also notes a significant history with alcohol as well as past counselling to deal with his longstanding anxiety disorders. On assessment, it was determined that there was some degree of PTSD however not severe and possible post-concussive symptoms. Medication prescribed; trazodone, clonazepam, Percocet, baclofen, metoclopramide and pariet.

Submissions

19Counsel submits that the Applicant is a victim as defined in section 5 and pursuant to section 11 of the Act. He also submits that the medical evidence provided shows a clear link between the crime of violence and the physical injuries. With respect to the emotional/psychological injuries, Counsel argues that the diagnosis of PTSD and anxiety are “reasonably connected to the trauma experienced as a result of the assault as the physician’s report references PTSD and anxiety within a discussion of the circumstances of the assault”. Further, it is argued that

(…) while [Doctor]'s report references other experiences also connected with psychological injury, it is submitted that the significant trauma flowing from the assault acted so as to result in a distinct manifestation of symptoms with respect to [Applicant]'s PTSD, anxiety and physical symptoms”.

20It was submitted that the medical evidence supports impairments that are continuous and recurrent. Counsel also notes the Applicant’s plan to seek further medical treatment in relation to the injury to his left eye.

Expenses

21In his submissions to the CICB, the Applicant requests compensation for the following:

• Travel: 225 kilometers.
• Future expenses related to travel to treatment.
• Hotel cost for outpatients at the HSC for which he submitted receipts totaling $582.12

Analysis and Decision

22The CICB finds the Applicant to be a victim of a crime of violence, and therefore, a victim within the meaning of section 5(a) of the Act. The claim was supported with reports from Police, Hospital Records and a Medical Report.

23In assessing compensation for pain and suffering, the CICB has considered the nature of this incident and how it has impacted the Applicant. The CICB was mindful that in this case, the attack was unprovoked and perpetrated by two Offenders. As a result of this assault, the Applicant suffered both physical and emotional/psychological injuries. The medical evidence and police synopsis on file supports the seriousness of the assault and the gravity of the physical injuries.

24With respect to the Applicant’s emotional/psychological injuries, some of the medical evidence on file suggests that the Applicant previously suffered from anxiety and panic attacks unrelated to the crime of violence. Although it appears that the Applicant may have had some pre-existing PTSD symptoms, the Psychiatric Report does state that there was some degree of PTSD however not considered severe. The Medical Report indicates anxiety and PTSD symptoms are persistent but lessening. The CICB considered the Applicant’s position that the current assault exacerbated his pre-existing condition.

25Considering the evidence and the submissions made by the Applicant, the CICB assesses this award at $10,000.00.

26The CICB also considered the expenses claimed and awarded the following:

• Kilometers travelled $167.20. As details of the number of trips actually incurred and supportive documents were not provided and the fact that the Applicant stayed at a hotel during some of the follow up treatment not requiring travelling, the CICB considered one trip to [City] which was calculated at the CICB’s standard rate of $0.40 a kilometer.
• Contribution for future travelling to treatment expenses in the amount of $500.
• Hotel accommodations for which receipts were provided is awarded in the amount of $582.12.

Award

27The CICB orders payment as follows:

Subsection 7(1)(a) Expenses (hotel accommodation) $ 582.12 Subsection 7(1)(a) Expenses (kilometers travelled) $ 167.20 Subsection 7(1)(a) Future travel to treatment $ 500.00 Subsection 7(1)(d) Pain and Suffering $ 10,000.00 TOTAL CURRENT AWARD $ 11,249.32

Payment

28THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $11,249.32

DATED at Toronto, this 28th day of May, 2018.

______________________________

Louise Charette, Member