(Re) 1602-02515, 2018 ONCICB 6

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicators: James Graham, Keith Forde

Date: February 22, 2018

Indexed as: (Re) 1602-02515

SECTION 10 ORDER

1This is an Application for a review of an Order by a single member heard by the Criminal Injuries Compensation Board (the “CICB”) on October 6, 2017. This Application is heard pursuant to section 10 (1) of the Compensation for Victims of Crime Act (the “Act”).

Background

2On February 14, 2017 the CICB in its Original Order awarded the Applicant the following sums for injuries suffered as a result of domestic assaults which occurred in 2013:

• Pain and suffering $8,000.00
• Future counselling $1,800.00
• Future psychotherapy $ 500.00
• Interim counselling $ 983.49

3In her original Application to the CICB, which resulted in the above award, the Applicant stated that her physical injuries were related to her neck. It caused her pain every day and arthritis also set into her neck. She complained of pain spreading into her shoulders and back, giving her a lot of daily discomfort. She said that her pain was getting worse by the day. Her Doctor recommended physiotherapy, but she said that she did not have the money to pay for it. She repeated in the Application shat she was in constant pain.

4Prior to the original hearing, on January 27, 2017, the Applicant wrote to the CICB advising that her pain wasn’t getting better, but was getting worse, travelling down her back, arms and up into her shoulders. She said it affected her interactions with others.

5On July 10, 2017, the Applicant applied for a variation of the Original Order pursuant to section 25 of the Act for an increase in compensation. That Application was considered by a single member by way of a written hearing on October 6, 2017. The Application was denied. It is from that Variation Order denying the variation pursuant to section 25 that the Applicant now seeks a review pursuant to section 10 of the Act.

Issues

6The issues before this Panel are:

• whether the Variation Order demonstrates a failure to properly exercise discretion, or
• whether the Variation Order demonstrates an error at law.

The Law and CICB Rules

7Section 25 of the Act reads as follows:

(1) The Board may at any time on its own initiative or on the application of the victim, any dependant of the victim, the Minister or the offender, vary an order for payment of compensation in such manner as the Board thinks fit, whether as to terms of the order or by increasing or decreasing the amount ordered to be paid, or otherwise.

(2) In a proceeding under subsection (1), the Board shall consider,

(a) any new evidence that has become available;

(b) any change of circumstances that has occurred since the making of the order or any variation thereof, as the case may be, or that is likely to occur; and

(c) any other matter the Board considers relevant.

(3) This Act, except section 6, applies to a review under subsection (1) in the same manner as to an application for compensation.

8The relevant portions of section 10 of the Act read as follows:

(1) Where an application is heard by a single member of the Board under section 9, the Applicant or the Minister may, within fifteen days after service of the decision of the member, require a hearing and review by the Board and the Board shall fix a time and place for the hearing and shall at least ten days before the day fixed cause notice thereof to be served upon the parties to the proceeding.

(3) The hearing shall be conducted and the jurisdiction of the Board shall be exercised by at least two members of the Board and the member whose decision is being reviewed shall not sit on the review.

(4) After a hearing and review by the Board under this section, the Board shall make its order in accordance with this Act and its order supersedes the order of a single member made under section 9 that is the subject of the hearing and review.

9CICB Rule 9.2 on Review Hearings states that:

Where an Applicant has received a decision heard by a single member, the Applicant may apply to the Board for a review of the decision by a minimum two-member panel per section 10 of the CVCA.

A review hearing is a review of the sufficiency of the original decision and will not be interfered with unless the original decision demonstrates a failure to properly exercise discretion or an error in law.

The Evidence

10The evidence in support of the Variation request before the CICB on October 6, 2017 included:

• The Section 25 Application,
• Applicant’s submissions dated July 10, 2017,
• Emails from the Applicant dated September 9, 2017,
• A Medical Report dated September 18, 2017.

11In her written submissions, the Applicant claims that she is having more issues with her neck with worse pain almost every day. She alleged that the pain now makes her bedridden. She says she can’t work with men, she now has PTSD and that the pain is horrible. She also claims that the arthritis is spreading. She has not had counselling or physiotherapy since the Original Order in February 2017 but states that she is waiting for her Doctor to organize it.

12The Medical Report was before the Vice Chair as part of the Variation request. The report indicates chronic pain, post-concussion and that a psychological impact from the injury with PTSD is to be confirmed. The Doctor does not confirm PTSD or say when the symptoms appeared. The Doctor says that counselling is recommended. The Doctor’s prognosis for long term recovery is fair to good. She states that the Applicant has been unable to work since March 1, 2016. There is no indication in this Report that the Applicant’s condition has changed or deteriorated since the original hearing in February, 2017.

13The evidence provided by the Applicant since the Variation Order was made and in support of this current review request includes:

• Emails dated October 28, 2017 and October 30, 2017, and
• A Medical Report from a different Physician dated December 21, 2017.

14The second Physician says he has seen the Applicant on multiple occasions since September 2017. He reports that she continues to deal with significant pain. He says that the Applicant states that her symptoms continue to worsen. He says that the mainstay of treatment for her condition includes physiotherapy sessions, which she is unable to follow through with for financial reasons. He says that her prognosis is good but if she does not start a physiotherapy program soon her symptoms will likely continue to get worse. He refers to anxiety and possible PTSD and states that she should seek counselling to keep her symptoms under control. He confirms that she remains unable to work.

Analysis

15A review hearing is a review of the sufficiency of the Variation Decision and will not be interfered with unless the Variation Decision demonstrates a failure to properly exercise discretion or an error in law.

16At the Variation Hearing, on October 6, 2017, the CICB held that there was no new evidence to support a finding that there has been any change in the nature or extent of the injuries sustained by the Applicant.

17The Applicant had put forward in her Application that she experienced increasing and spreading pain since the February, 2017 hearing. The Medical Report provided no objective evidence of such an increase.

18The Applicant stated in the section 25 Application that she was bedridden as a result of the claim. This claim was not mentioned in the first Doctor’s Medical Report. It was a reasonable exercise of the CICB’s discretion to give no weight to that unsupported claim.

19The Applicant claimed that she could not work. The first Doctor reported that she has been unable to work since [date], 2016 so this condition was not a change of circumstance but rather something that could have been brought forward at the original hearing.

20The Applicant claimed that she had difficulty socializing, but said that such problem had occurred since she returned to her home province. That return occurred before the original Application was made and so the CICB properly determined that this loss of socialization was not new evidence or a change in the nature or extent of the injuries sustained.

21This Panel is satisfied that the CICB properly exercised its discretion in the Variation Order.

22The Applicant’s additional evidence put forward in support of the current review does not assist the CICB. In her submissions she confirmed that she was not working due to all the pain in her neck, shoulders and back. She said the pain is spreading. Her social life is non-existent and she doesn’t go a day without pain. She says her Doctor told her she has PTSD. In her October 28, 2017 and October 30, 2017 memoranda to the CICB she reiterated matters relating to her inability to work and her pain which had already appeared in the section 25 Application. The letter from the second Doctor provides no objective evidence of deterioration since the original hearing.

23Having considered all of the evidence before it, the CICB is satisfied that no new evidence had been brought forward by the Applicant at the time of the Variation request. The CICB also finds that there was not sufficient evidence of a change of circumstances to justify a Variation. Nor were there other relevant circumstances which would have moved the CICB to make such a Variation. In terms of the evidence presented in support of the Applicant’s review request, the CICB finds that it does not establish the Variation Order should be overturned.

24The Applicant has failed to establish how the Variation Order demonstrates a failure to properly exercise discretion or an error in law. The Variation Order will be upheld.