CRIMINAL INJURIES COMPENSATION BOARD
Adjudicators: David Fine, James Graham
Indexed as: (Re) 1609-04696
ORDER
Introduction
1The oral hearing in this case was conducted on March 16, 2018 but was reserved to allow the Applicant to file additional documentation with respect to her lost income claim.
2The Applicant is seeking financial compensation from the Criminal Injuries Compensation Board (CICB) in accordance with the Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24, as amended (CVCA). The Applicant is seeking compensation for expenses, loss of income and pain and suffering as a result of a shooting that occurred on [date], 2016 at which time she sustained physical and psychological injuries. The incident was reported to the police but did not result in a conviction.
Decision
3The CICB approves the claim and awards the Applicant the sum of $9,000.00 for pain and suffering, $2,022.10 for lost wages, $286.10 for expenses, and $400.00 for legal costs for the reasons set out below.
Issues
4The 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 she was a victim of a crime of violence but also that her injuries resulted from the crime pursuant to subsection 5(a) of the CVCA.
5The Applicant must provide reliable evidence to support her claims for:
a. Expenses actually and reasonably incurred as a result of her injury pursuant to subsection 7(1)(a) of the CVCA; and,
b. Income or pecuniary loss incurred as a result of her total or partial disability affecting her capacity for work pursuant to subsection 7(1)(b) of the CVCA.
Hearing
6The Applicant appeared and provided oral testimony and submissions.
Documentary Evidence
7The CICB received the following documents with respect to the claim: the application: the [city] Occurrence report, records of [name] Health Centre, records from [name] Health Sciences Centre, report from [name] Physiotherapy (undated), a report from Doctor [name] dated [date], 2018, CRA records, employer documentation, a record from Service Canada, and expense invoices.
Evidence
8The Applicant testified that she was part of a group of 10 that attended a Canada Day Party at [name] Banquet Hall in [city] on [date], 2016. She arrived about 7:00 pm. She had been at the party about two hours when a fight broke out. She saw someone with a gun to the left of her. Someone else behind her also had a gun. As she tried to run away she got caught in the crossfire and was shot in the right thigh and left ankle. She fell to the ground and could not move to get up. Initially, she did not realize she was shot. She could see a bone in one of her legs and then realized what happened .She believes the shooting went on for about 5 minutes. Because she was incapacitated she just had to lie where she had fallen which was in front of the exit. Eventually another guest came to her aid by wrapping his shirt around one of her legs. Someone called an ambulance. The Applicant did not know the shooters and had no connection to them whatsoever.
9She was initially taken to [name] Regional hospital by ambulance but was transferred to the trauma unit at [hospital] where she had surgery on both her legs.
10The [police] Occurrence report confirms the Applicant’s description of the shooting. Charges were laid but were withdrawn because witnesses would not come forward and the police had difficulty determining the identity of the shooter.
11The Applicant suffered a right distal femur fracture, a left distal tibia fracture, bruising to both elbows and a sore back. She has considerable scarring on both legs from the wounds and surgeries and has metal screws in both legs. From an emotional perspective she has had nightmares and difficulty sleeping.
12The Applicant testified that she had surgery on both her right thigh and left ankle at [hospital] on [date], 2016. She said she was in hospital for two months. According to the records from [hospital] she was discharged on [date], 2016. In her Application she said she went to [name] Rehabilitation for two weeks. After that, she started physiotherapy at [name] Physiotherapy. She had 12 physiotherapy sessions between [date], 2016 and [date], 2016. She returned to [hospital] in [month] 2016 for the removal of bullet fragments. She says she may need further surgery in the future in that regard.
13The Applicant says she was in severe pain right after the accident and her pain level in her legs has not improved very much since then. Her right leg is better than her left which she says has nerve damage. She says that one leg is now shorter than the other which causes considerable pain in her back. Her elbows which she bruised when she fell still bother her. She takes pain killers and does Yoga to relieve the pain. The nightmares and sleep issues, which were intermittent right after the shooting, continue on the same basis and have not improved. The scars are sensitive to touch and bother her from a cosmetic perspective. The Applicant says she can’t stand on her feet for very long. She has trouble wearing heels and has difficulty at the gym. As a general statement, the Applicant said she feels old before her time.
14There is a medical report dated [date], 2018 from Doctor [name] indicating the Applicant has permanent muscle weakness.
15The Applicant has not sought any treatment for her psychological or emotional issues.
16At the time of the shooting the Applicant was a receptionist at a company called [name] Inc. She worked there on a full time basis from 2014 to the date of the shooting in 2016. In her testimony, the Applicant said she was off work for eight months following the shooting. When she went back to work, she did so on a part time basis. Because she was on good terms with her employer she was paid her full salary while working part time.
17The documents produced by her employer shows the Applicant was off work from [date], 2016 to [date], 2016. Because the shooting was on [date], 2016 it is likely the Applicant also was not paid for the week starting [date], 2016. This means she was off work for 19 weeks. Her average net salary during the seven weeks before the shooting was $538.14. She received $470.00 per week from Service Canada over a period of 15 weeks.
18The Applicant indicated she earned income as a model before the shooting but never declared that income for tax purposes. There was no documentation filed indicating who the Applicant worked for in that regard or what income she earned from modelling.
19The Applicant produced documentation for prescription expenses and expenses for an ambulance and crutches.
Analysis and Decision
20Based on the Applicant’s oral testimony as set out in paragraphs 8, 9, 11, 12 and 13, the information in the [regional] Police Occurrence Report, and her application, we find on a balance of probabilities that the Applicant was shot and wounded as she described, and therefore is a victim of a crime of violence. Further, we find on a balance of probabilities she lost wages and incurred expenses as a result of the crime of violence.
21We accept that as of the date of the hearing the Applicant continued to have significant pain in both her legs, back and elbows and has the limitations she described. We also accept that as of the date of the hearing the Applicant continued to have the emotional issues she stated. We appreciate the scars on the Applicant’s legs would bother her from a cosmetic perspective.
22We do note that there is no diagnosis or prognosis regarding the back problems and nerve damage. Doctor [name] indicates in the [hospital] records that from a cosmetic perspective, it would not be ideal to take out the smaller bullet fragments that are still in the Applicant’s legs. In general, there is no medical evidence with respect to what future treatment might be required.
23Given the evidence with respect to the crime of violence and the injuries the Applicant suffered and continue to suffer from, we award the Applicant $9,000.00 for pain and suffering. In doing so, we have also taken into account that the Applicant injuries occurred at a young age, she will have permanent muscle weakness, and that she had to endure a very traumatic event as an innocent bystander.
24With respect to lost income the Applicant lost a net amount $538.14 per week for 15 weeks or $8,072.10. The amount she received for employment benefits during that period was $7,050 which must be deducted. As a result, the compensable loss for the 15 week period is $1,022.10. The evidence indicates that the Applicant did not have income for the remaining 4 week period she was off. We see no reason in this case to vary from the CICB’s practice of awarding $250.00 a week for lost wages. We award an additional $1,000.00 for lost income for a total of $2,022.10. There is no evidentiary basis for making an award for any lost income from modelling.
25The Applicant produced reliable evidence and supporting documentation for her expense claims. As such, we award $45.00 for the ambulance expense, $75.00 for the cost of crutches, and $166.10 for the cost of prescriptions.
26We also award $400.00 for legal costs.
Award
27The CICB orders payment as follows:
Subsection 7(1)(a) Expenses $ 286.10
Subsection 7(1)(b) Income Loss $ 2,022.10
Subsection 7(1)(d) Pain and Suffering $ 9,000.00
Section 22 Costs $ 400.00
TOTAL AWARD (AND COSTS) $11,708.20
Payment
28THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $11,308.20
[name] Injury Lawyers $ 400.00
DATED at Toronto this 17^th^ day of October, 2018.
_____________________________
David Fine, Member
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James Graham, Member