CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: James Graham
Indexed as: (Re) 1612-00855
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 (CVCA). The Applicant is seeking compensation for pain and suffering, loss of income, travel to treatment, and the loss of his wife’s income while caring for him as a result of a physical assault that occurred on [date], 2015 where he sustained physical and psychological injuries. The incident was reported to the police but charges were not laid
Decision
2The CICB approves the claim and awards the Applicant the sum of $14,111.20, his wife in the amount of $8,000.00 and his counsel a fee of $400.00 for the reasons set out below.
Issues
3The absence of a conviction does not mean that the CICB is precluded from making an order for compensation. Subsection 16(1) of the CVCA provides that compensation may be awarded whether or not a person has been prosecuted or convicted of the offence giving rise to the injury. The Applicant is required to prove, on a balance of probabilities, not only that he was a victim of a crime of violence but also that his injuries resulted from the crime pursuant to subsection 5(c) of the CVCA.
4Since the Applicant has made claims for additional expenses, he must provide reliable evidence to support his claims for:
a. expenses actually and reasonably incurred as a result of his injury pursuant to subsection 7(1)(a) of the CVCA;
b. income or pecuniary loss incurred as a result of his total or partial disability affecting his capacity for work pursuant to subsection 7(1)(b) of the CVCA; and,
c. pecuniary losses resulting from his injury and any other reasonable expense that, in the opinion of the CICB, it is reasonable to incur, pursuant to subsection 7(1)(f) of the CVCA
Hearing
5The Applicant appeared and provided oral testimony and submissions through his counsel.
Documentary Evidence
6The CICB received the following documents with respect to the claim:
The Application;
General Report and Supplementary Occurrence Report of Constable [name] of [place] Police Services;
Hospital Report from [name] Health Centre;
Medical Report from Dr. [name];
Medical Report from Dr. [name];
Therapy Report from [name], registered psychotherapist.
7Following the oral hearing, the matter was reserved to give the Applicant an opportunity to provide further documentation. Through his counsel, he forwarded the following additional documents:
Wife’s T4s for 2014, 2015 and 2016;
A letter from Dr. [name] listing attendances by the Applicant;
Lists of attendances on Dr. [name] and Dr. [name] at the [name] Clinic;
A list of attendances at [name] Urology Associates;
A list of attendances on Dr. [name]; and
A list of attendances on Dr. [name].
8The Application indicates that the Applicant was working a night shift at the [name] General Hospital in the early morning hours of [date], 2015 when a patient [Alleged Offender] was brought into the Emergency Department by his family. The Alleged Offender became violent, threatened the Applicant and others, ultimately striking the Applicant high on the chest causing him to fall backwards onto the floor directly onto his tailbone. He also hit his head on steel shelving causing a cut.
9The police report states that while in the Emergency Department, the Alleged Offender became verbally aggressive towards hospital staff and his own family. He became combative and the Applicant, along with others, attempted to restrain him.
10The Applicant suffered a compression injury and herniated disc in his lower spine. He was transferred to the [name] General Hospital for emergency decompression surgery. However, he suffered serious nerve injury which causes chronic pain progressing from his lower back into his pelvis and down his right leg to his foot.
11Following surgery, he underwent two months of rehabilitation in [city], progressing from a wheelchair to crutches. Because of the need to use crutches, he developed carpal tunnel syndrome which required him to wear splints on his arms every night.
Oral Evidence
12The Applicant stated that when he arrived on the scene the Alleged Offender was verbally aggressive and physically aggressive. He had already struck a nurse cracking her clavicle. The Applicant was trying to control the Alleged Offender when he broke loose and struck the Applicant in the upper chest knocking him down. The Applicant immediately felt severe pain and could not move his right leg.
13The hearing was held over three years after the injury. The Applicant testified that he returned home after having stayed in hospital for almost three months and continues to have chronic pain affecting his lower back and right leg. He has bladder problems due to the nerve injury and erectile dysfunction. He now walks with a limp and is limited in what he can do. He cannot put on his socks without the help of a tool made for that purpose. He cannot take a bath because he cannot get out of the tub. He has been unable to engage in coaching sports as he did in the past or sit on volunteer boards. He is unable to participate in activities with his four young children as he did before the injury. He is unable to work. At times he has been taking as many as forty to fifty pills a day. He has regular injections to assist in controlling pain. He spends three to four hours a day engaged in physiotherapy exercises. He is continuing to undergo treatment and assessment by a pain clinic, his neurologist and other medical facilities.
14As a result of the injury the Applicant states that he suffers from ongoing depression and anxiety. He claims to have been diagnosed with PTSD. He is undertaking ongoing treatment.
15The Applicant states that after he returned home, his wife suffered income loss caring for him because of his extremely limited mobility. She lost income by way of declining shifts offered to her. Because of the nature of her work, the Applicant is unable to provide the CICB with a statement from the employer pointing to particular days or shifts that were missed.
Analysis and Decision
16The CICB accepts the Applicant’s written and oral evidence, along with the police reports, that he was attempting to prevent the commission of an offence by the Alleged Offender who had already assaulted one nurse and threatened to assault another. The CICB finds that the Applicant was injured in the course of an attempt to prevent the commission of an offence and is therefore entitled to compensation pursuant to section 5(c) of the CVCA.
17The CICB finds, based upon the Applicant’s evidence and the medical documentation in the file, that he suffered, as a result of the assault, a serious spinal injury as a result of which he spent three months in hospital. He has suffered nerve damage which subjects him to chronic pain in his lower back into his right leg. He has continuing bladder problems and erectile dysfunction. He has progressed from a wheelchair to crutches to walking unaided, but he still has a severe limp. He is unable to work and has been receiving loss of income payments from the WSIB. He cannot participate in volunteer activities or coaching as he did in the past. He cannot share in his children’s activities any more. The stress of his current circumstances has negatively affected his enjoyment of life. He continues to spend hours a day doing physiotherapy exercises and considerable time visiting medical experts. He cannot return to his previous employment and is not yet ready to undertake any employment at all. Considering all of that and the details set out in the medical reports on file, the CICB determines that an appropriate award for pain and suffering is $13,000.00.
18As the Applicant is receiving compensation from the WSIB, his claim for loss of income was not considered.
19The Applicant provided the CICB with statements from doctors he has visited at a distance of over 40 kilometres from his home, as follows:
Doctor
Distance
Number of visits
[name]
75 km
4
[name]
43km
7
[name]
112km
5
[name]
76km
3
20On the basis of this information, the CICB has calculated that the Applicant has demonstrated that he has travelled 2,778 kilometres for treatment, and so directs that he be compensated for travel to treatment in the amount of $1,111.20, calculated at the CICB’s standard rate of 40 cents per kilometre.
21The Applicant states that his wife lost income as a result of taking time off work to tend to his needs and fill in for services that he cannot now perform. He has submitted T4s showing his wife’s gross income in 2014 as $69,993, in 2015 as $47,237 and in 2016 as $50,364. Generally, the CICB will compensate a spouse, based upon her net income, for time away from work to assist the Applicant with medical needs directly related to his injuries such as driving him to medical appointments, or helping him bath, but not for performing services that he could perform himself if not injured such as shopping, driving the children to lessons or cutting the grass. It is impossible to know with accuracy how much of the loss the Applicant’s wife suffered qualifies for compensation, but it is clear that some of it does. The CICB estimates her net loss to be $8,000.00 and directs that she be compensated in that amount.
22It is the CICB’s practice to contribute up to a maximum of $400.00 towards legal fees incurred to assist an applicant with his Application where it is satisfied that legal representation was reasonably necessary in the circumstances of the case. We find no compelling reason to deviate from that practice under the circumstances. The CICB awards $400.00 in respect of this expense and orders that it be paid directly to the Applicant’s counsel.
Award
23The CICB orders payment as follows:
Subsection 7(1)(a) Expenses $ 1,111.20
Subsection 7(1)(d) Pain and Suffering $13,000.00
Subsection 7(1)(f) Other Pecuniary Loss/Expense $ 8,000.00
Section 22 Costs – Legal Fees $ 400.00
TOTAL AWARD (AND COSTS) $22,511.20
PAYMENT
24The CICB orders that the following sums be paid forthwith to:
The Applicant $14,111.20
Applicant's Wife $ 8,000.00
Counsel $ 400.00
DATED in Toronto this 23rd day of August, 2018.
James Graham, Member