CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Veda Rangan
Indexed as: (Re) 1712-03888
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 expenses, loss of income, pain and suffering as a result robbery that occurred on [date], 2017 where he sustained physical/psychological injuries. The incidents were reported to the police and did not resulted in charges being laid as the Alleged Offender was not identified.
Decision
2The CICB approves the claim for pain and suffering and awards the Applicant the sum of $10,000.00 for the reasons set out below.
Issues
3The absence of a conviction does not mean that the CICB is precluded from making an order of 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 (a) of the CVCA.
4The Applicant 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
Hearing
5The Applicant appeared and provided oral testimony and submissions.
6Det. [name] (‘police officer’) appeared as a witness. The police officer of the [city] Police Services was the investigating officer in regards to this incident.
Documentary Evidence
7The CICB received the following documents with respect to the claim: police report(s) dated [date], 2017, hospital records from [name] Hospital dated [date], 2018, [name] Hospital dated [date], 2018, medical report(s) from Dr. [name] of the [name] clinic, Dr. [name] his family physician dated [name], 2018, physiotherapy report dated [name], 2018 from Dr. [name], Reports from CRA and expenses invoices and receipts.
Police Synopsis dated [date], 2017
8The police responded to a call regarding a shooting. The police synopsis states that the Applicant was shot in the leg as he went to see who was knocking on his door. He leaned against the door to keep it shut. His door was forced open and in that moment he caught a glimpse of the two men and one of them had a gun. He immediately shut the door and as he shut the door he heard gunshot wounds and realised that he had been shot. After a while when there was no sound from outside he opened the door and realised that the perpetrators had left. He called 911 and applied a towel and pressure to his wound. The Police arrived and the Applicant explained the details of the incident. In addition he told them he had marijuana in the house for which he had a medical permit. He was then taken to [name] hospital. He had fractured his tibia and the police located injuries located on the left leg below the knee. He had a bullet and fragments inside his left leg.
[name] Hospital report dated [date], 2018
9The Bone Scan report from this hospital states
The prominent ring shaped area of increased activity centered in the proximal Left tibia is presumably post-operative. Based on imaging alone however one cannot exclude an underlying infectious process. The super imposed diffuse activity involving the Left tibia from the tibial plateau to the mid-diaphysis is likely post-operative reaction. Correlation with standard x-rays suggested. If they are not contributory, further assessment with CT scan suggested.
[name] Hospital Report: [date], 2018.
10The report states
This gentleman came back today. Proximal tibia fracture. He was treated by ORIF. The mechanism of injury was penetrating trauma. He has got 3 to 120 degrees range of motion. He has got some generalized leg swelling, which I have told him will come and go for quite some time. This entry wounds are well-healed. They do have scabs on them and I have told him to just let them fall off on their own. I have offered him again a referral to physical therapy, but he said: "I have my own guys." And he refused a formal physical therapy referral. Mr. [name]’s bones are essentially healed on x-ray. With that large fragment plate in, he is not really at any risk. He does not require any further follow-up considering that his bone is healing and he is refusing physical therapy instruction.
11Report also states that the Applicant was operated on [date], 2017 by Dr. [name]. He basically had a gunshot wound to the proximal tibia. As part of the surgical intervention he had open reduction, internal fixation with a spanning plate. The report notes that he had some puffiness around the traumatic wounds.
12The report notes that the Applicant has swelling, pain and generalised numbness everywhere. He was offered physiotherapy but the Applicant refused the offer. Once again the offer was made and was told it would be helpful to try to reduce some swelling and to make sure he maintains motion in the ankle and the knee but again he refused. Documents on file notes that he did attend physiotherapy sessions later.
Dr. [name] Report dated [date], 2018
13Describes the nature of the wound the Applicant had sustained as it is in the other reports.
Report from Dr. [name] dated [date], 2018
14The family doctor notes that the Applicant had sustained a gunshot wound to his leg requiring surgery at [name] hospital. It is opinion that it is a permanent impairment.
Physiotherapy report from Dr. [name], the physiotherapist.
15Notes that the Applicant had sustained a gunshot wound to his leg, damage to the knee joint, hip lower back and pelvis. Recovery was delayed due to infection. It is his opinion that this was a temporary impairment.
16The CICB was also in receipt of CRA statements for the period 2014 to 2016 and receipts for ambulance cost, prescription drugs, and travel treatment expenses.
Oral Evidence
17The Applicant testified that on the day in question he heard the dogs bark and thinking someone was at the door he asked in a loud voice “who is there”. As there was no response to his question he asked again. He saw the door being kicked forcefully and the Applicant braced himself against the door to prevent from the door being opened. Through the slit in the door he could see two men standing and one of them had a gun. While still standing braced against the wall he heard gunshot and this bullet went through the lower part of the door and into his legs around the knee. He continued to scream for help and then hobbled to the phone and called 911. The police responded to the call immediately and on their arrival he was treated by EMS and taken to [name] Trauma Centre.
18The police asked him about the marijuana in the house and when he told them that he had a medical prescription for it they returned the marijuana to the Applicant. Police witness in his testimony confirmed the same.
19The Applicant testified that he was in a recliner for 2 months and was on crutches for a few weeks. His had difficulty walking and had to seek the assistance of his mother for some activities including driving to his treatment centres. He had limitations to doing even simple tasks for a period of time. He was on antibiotics from 2018 to August of the same year. After his recovery he sold his home since he did not feel safe living there.
Analysis and Decision
20For the following reasons the CICB grants the Applicant an award for pain and suffering.
21The CICB has carefully considered all of the evidence before it and based on that evidence and the Applicant’s credible testimony, the CICB is persuaded that he is a victim of crime of violence and had sustained injury as a result of the gunshot pursuant to section 5(a) of the CVCA.
22In assessing pain and suffering the CICB has considered the nature of the unprovoked attack, where a weapon was used in the commission of the crime, the serious nature of the physical injuries requiring surgical intervention, the limitation imposed by these injuries and the emotional impact of the same on him. In consideration of his victimization the CICB awards him $10,000.00 for pain and suffering.
23The CICB considered the Applicant’s claims in respect to ambulance cost and prescription drug costs for which receipts were provided. The CICB finds such costs to be both reasonable and within the context of the CVCA and will therefore award $45.00 for ambulance fee and $278.29 for such costs.
24The CICB has considered the Applicant’s claim in respect to travel to treatment costs. Since the evidence indicates that other factors have contributed to the Applicant’s overall emotional difficulties and need for travel to treatment at such distance the CICB awards $400.00 towards travel to treatment.
25With respect to the Applicant’s claim for income loss, the CICB notes that it generally requires supporting documentation (i.e. employer’s report, pay stubs or Income Tax records and medical confirmation of disability in order to verify an Applicant’s employment status and average net earnings at the time of the incident, and to determine whether any income- replacements benefits were received during the period being claimed, and to confirm period of disability. In the absence of medical evidence of period of disability, and having found no compelling reasons to deviate from its usual practice in this instance, the CICB finds that the Applicant has failed to establish his claim for income loss and the claim in that regard is hereby denied.
26The CICB also awards $64.80 for the cost incurred travelling to [city] for the hearing.
27Based on the Applicant’s stated intention to enter into physical therapy in the near future, the 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 CICB 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. The CICB may also consider therapy expenses that were incurred between the time that the Applicant submitted his final set of documents to the CICB and the receipt of this Order. If there are such expenses, the CICB will deduct these from the pre-authorized amount described above.
Award
28The CICB orders payment as follows:
Subsection 7(1)(a) Expenses(medications and ambulance) $ 323.29
Subsection 7(1)(a) Future Pre-Authorized Expense $ 1,200.00
Subsection 7(1)(a) Expenses(travel to treatment) $ 400.00
Subsection 7(1)(d) Pain and Suffering $10,000.00
Section 22 travel to Hearing $ 64.80
TOTAL AWARD (AND COSTS) $11,988.09
Less: Preauthorized treatment costs $ 1,200.00
TOTAL CURRENT AWARD $10,788.09
Payment
29The CICB orders that the following sums be paid forthwith to:
The Applicant $10,788.09
DATED at Toronto this 24th day of July, 2018.
Veda Rangan, Member