CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Kirsten Kurzuk, Jo-Anne Hughes
Indexed as: (Re) 1701-00123
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, expenses 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 and investigated by police and resulted in a guilty plea to attempted murder. The Offender was sentenced to 12 years in prison.
Decision
2The Board approves the claim and awards the applicant the sum of $12,000.00 for the reasons set out below.
Issues
3A 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.
4The applicant must 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
pecuniary losses resulting from his injury and any other reasonable expense that, in the opinion of the Board, it is reasonable to incur, pursuant to subsection 7(1)(f) of the Act
Hearing
5The hearing was conducted in writing on the basis of the materials contained in the applicant’s file.
Documentary Evidence
The CICB received the following documents with respect to the claim:
The applicant’s written submissions describing the incident,
Police Questionnaire dated March 25, 2016,
Emergency and several medical reports dated September 20, 2016,
Discharge Summary dated September 21, 2016,
Medical Report from Dr. W., dated Oct. 2, 2017,
Medical Report from Dr. A., dated March 15, 2017,
Physiotherapy Report from CT, dated July 10, 2017,
Victim Impact Statement, dated November 28,
Applicant’s written submissions
6On the day of the incident, the applicant was storing paper towels in the trunk of his car, which was parked in the drive way of his office dwelling. During that time, he was shot from behind by an unknown, male Offender, who was wearing construction apparel and a wig.
7As several shots were fired, two bullets went directly through the applicant’s left leg. The applicant was transported to the hospital where he was treated for his injuries.
Police Documentation
8The Criminal Injuries Compensation Board was provided with the following report by the Toronto Police Service:
“On Tuesday, September 20th, 2016 at approximately 3:15pm the victim was returning from a nearby Shopper's Drug Mart to his offices where he operates a law office as a lawyer. He was in the midst of putting these items in the trunk of his vehicle, when the accused approached him armed with a handgun and opened fire on his person, leading to gunshot injuries to his legs. Police arrived on scene and placed the accused under arrest.”
The Officer In Charge confirmed with the Criminal Injuries Compensation Board that although the Offender plead guilty to Attempted Murder there had been no motive established for this crime of violence. The applicant is a true victim and he was cooperative with the police investigation, which was still ongoing when this matter was heard in writing by the CICB.
Medical documentation
9The CICB is in receipts of the following medical documentation:
Hospital records dated September 20, 2016: The applicant sustained isolated injuries to the left leg, with two wounds to the posterior thigh and two wounds to the posterior calf. An x-ray demonstrated soft-tissue injury with no acute fractures. A washout of the wounds and skin closure was performed and a diagnosis of Typerlipidemia has been made.
Discharge Summary, dated September 21, 2016: The applicant was discharged the next day as he was clinically well and without additional concern. He was instructed to remain in a foot drop for two weeks until he would undergo a re-assessment in the plastic-surgery clinic in two weeks.
A medical report by Dr. A., dated February 26, 2017 indicates that the applicant’s wounds have healed well with a return in motor function and a decreased sensation to his lateral foot and lateral leg in the region of the sural nerve. The applicant also had some decreased sensation to the dorsum of the foot in the region of the superficial peroneal nerve, but he had recovered clinically. A CT-scan showed injury to the applicant’s greater saphenous nerve, but no arterial injury incurred. It is further noted that the applicant continues to experience numbness in the region of the sural nerve, but a good recovery without surgical intervention has been given, which will include the return of sensation in the area as well. A further follow up has been recommended.
In a clinical note by Dr. A., dated July 11, 2017, the applicant has been advised that despite the numbness and tingling he currently experiences in his foot, a sensory recovery will continue for up to two years following the injury.
The CICB is also in receipt of a medical report by the applicant’s family physician Dr. W., dated October 2, 2017 in which it is indicated that the applicant was temporary impaired, but able to attend work.
The CICB has been furnished with a physiotherapy report by CT, dated July 11, 2017 in which it is indicated that the applicant has four therapy sessions from Oct. 3-21, 2016 and that he made “a good recovery” with respect to having no problems walking, keeping his balance and noticing a reduction in the swelling of the foot. CT further noted that the applicant was temporary impaired and that a full recovery has been envisioned.
The CICB is further in receipt of a letter by the applicant, dated November 28th, 2017 in which he advises that according to Dr. A., his left leg is about 80% as strong as his right leg and that he is not expecting more of a recovery. This presents the potential of future foot, knee and hip problems. The applicant also advised that he is still experiencing some discomfort and numbness that are unlikely to resolve. The applicant also indicated that psychologically it has been difficult, as a motive is not known and he fears there might be another attempt. As a result he finds himself looking over his shoulder and distrustful of strangers around him. The applicant’s sleep has been impacted as he has lost peace of mind.
Analysis and Decision
10Section 11 of the Act states that proof of a conviction shall be taken as conclusive evidence that the offence has been committed. The CICB finds that the applicant was subjected to a crime of violence as defined by section 5(a) of the Act, as a result of an aggravated assault, committed on September 20, 2016.
11Having considered the documentary evidence presented in the application and the police information, the CICB is persuaded that the applicant suffered both physical and psychological injuries as a result of a crime of violence and therefore finds the applicant to be a victim within the meaning of section 5(a) of the Act.
12In assessing compensation for pain and suffering, the CICB has considered the nature of the incident, the physical injuries sustained, the medical interference endured and the period of recovery. The CICB was mindful of the ongoing emotional impact upon the applicant and having regard for all of these factors the CICB assesses compensation for pain and suffering in the amount of $12,000.00.
13The CICB considered the applicant’s claim for expenses incurred by damaged property in the amount of $5,589.23. The Board generally awards compensation only to cover expenses related to treatment of the injuries sustained (i.e. hospital, medication or therapy expenses) and not for expenses related to personal items/property. Having found no compelling reasons to deviate from its usual practice in this instance, the Board declines to award compensation for the Applicant’s claims in respect to damaged property.
14The Board considered the Applicant’s claim in respect to the cost for the ambulance, for which a receipt was provided. The Board finds such costs to be both reasonable and within the context of the Act and will therefore award $45.00 for such costs.
15It is the Board’s practice to only consider travel to treatment costs when an Applicant is required to travel more than 40 kilometres each way (80 kilometres round trip) outside of his city of residence for treatment. The Board finds no compelling reason to deviate from that practice under the circumstances. Since the Applicant was not required to travel more than 40 kilometres each way for his treatment sessions, these expenses are denied.
16The Board has considered the Applicant’s income loss claim. It is the Board’s practice to reimburse income loss to a maximum of $1,000.00 per month or $50.00 per day and having considered the particular circumstances of this case, the Board finds no compelling reason to deviate from that practice. Accordingly, the Board now awards $400.00 for income loss (8 days @ $50.00 per day).
17The Board considered the Applicant’s claim in respect to the cost of a prosthetic device, for which a receipt was provided. The Board finds such costs to be both reasonable and within the context of the Act and will therefore award $217.23 for such cost.
18The CICB authorizes up to $1,200.00 (exclusive of any applicable taxes) for counselling expenses to be paid directly to a qualified treatment provider upon receipt of a Curriculum Vitae outlining the credentials of the service provider (unless the Board already has a copy on file). These sessions can only be accessed when the therapy sessions are not covered by other sources, such as the applicant’s place of employment or insurance benefits. Therapy sessions must be completed within 36 months of receipt of this Order. It is the Board’s practice to award up to $100.00 per session for therapy, or up to $125.00 per session for registered psychologists. Payment may be made directly to the treatment provider on a monthly basis, upon submission of an invoice(s) and the required verification(s) from the applicant.
Award
19The Board orders payment as follows:
Subsection 7(1)(a) Expenses ambulance and prosthetic device $262.23
Subsection 7(1)(b) Loss of Income $400.00
Subsection 7(1)(a) Future Pre-Authorized Expense $1,200.00
Subsection 7(1)(d) Pain and Suffering $12,000.00
TOTAL AWARD (AND COSTS) $13,862.23
Less: Preauthorized treatment costs $1,200.00
TOTAL CURRENT AWARD $12,662.23
Payment
20THE BOARD ORDERS that the following sums be paid forthwith to:
The applicant $12,662.23
DATED at TORONTO this day of 2018.
Board Member, KIRSTEN KURZUK
Board Member, JO-ANNE HUGHES