(Re) 1610-00200, 2018 ONCICB 91

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicators: Anne-Marie Langan, Wesley Marsden Date: November 05, 2018 Indexed as: (Re) 1610-00200

ORDER

1The Applicant has requested a review of the Order issued April 30, 2018 in accordance with section 10(1) of the Compensation for Victims of Crime Act, RSO 1990 c.24, as amended (CVCA).

2The relevant portions of section 10 read as follows:

10 (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.

3Rule 19.2 of CICB’s Rules of Procedure states:

An Applicant may request a review of the decision of a single member on the grounds that the decision contains a serious error of law or an unreasonable exercise of discretion.

Issue

4The Applicant is requesting a review of the CICB’s decision of April 30, 2018, which was made on based only on the documents in the file. The Applicant is requesting the review, because she felt the adjudicator had not taken into account all of the relevant facts in making his decision and that she had not had an adequate opportunity to make submissions, and in particular oral submissions, about the impact that the crime of violence had on her mental health.

5This Panel must decide whether the Applicant's concerns amount to a serious error of law or an unreasonable exercise of discretion.

Original Decision

6At the documentary hearing on April 30, 2018, a single member of the CICB determined that the Applicant was a victim of a crime of violence and found her to be a victim within the meaning of section 5(a) of the CVCA. The single member awarded $5,000.00 for pain and suffering and denied her claim for compensation for lost income on the basis that she had received income replacement from a Short Term Disability insurance policy from [date], 2016 to [date], 2016.

Documentary Evidence before the Member

7The Applicant had originally applied to the CICB for compensation relating to an armed robbery that occurred at the bank where she worked as a teller on [date], 2016. In her Application, the Applicant described the crime of violence as follows:

I looked over and saw a man wearing a Balaklava and I saw a gun. My life had dramatically changed at that moment. He gave clear direction of what we were to do. I followed what he told us to do, but also tried to remember what to do during a robbery. I had never been robbed directly before. He threatened us repeatedly and at some of those times I honestly thought he would shoot one of us to prove he wasn't joking. Something he said repeatedly was 'this is not a joke, do I have to prove it to you, and I will shoot'. He held us hostage until he decided to leave. It was about 15 minutes or so.

8The CICB also reviewed a police report which corroborates the facts as described in the application and specifically notes that the Applicant was one of two tellers who had direct contact with the Offender. An article published by the [City] news describes the robbery and that just prior to it the Offender had been to a local school where he fired his gun in the empty hallways of the school.

9With respect to her injuries, the Applicant noted in her Application form that since this incident she has suffered from severe symptoms of PTSD including trembling from morning to night for days following the incident, nightmares, difficulty leaving home as she does not feel safe in the community, hyper vigilance, panic attacks, difficulty concentrating, difficulty sleeping, and fatigue. She is unable to go into, or even walk past, a bank without having severe anxiety symptoms.

10The Applicant provided letters of support from her spouse and daughter which confirm the impact that the incident had on her and the changes they have noted in her since. Her spouse notes that she used to be a friendly outgoing person who enjoyed socializing prior to the incident. Since then he has noticed that she is always fatigued and “looking tired and worn out”, has difficulty focusing, has a heightened sense of alertness, symptoms of anxiety, mood swings such as sudden sadness, has difficulty sleeping due to nightmares and has withdrawn from people. The Applicant can no longer handle being in large crowds and when she is exposed to this she becomes very anxious. This is corroborated by her daughter who emphasized in her letter how reluctant the Applicant is to go out in public and how anxious she has been since the incident.

11The CICB reviewed a medical report from her family doctor that verifies that the Applicant has been diagnosed with Post Traumatic Stress Disorder and referred for counselling as well as that the Applicant has been unable to work since [month] 2017 as a result of her PTSD symptoms. There is also a psychiatric report on file in which the psychiatrist confirms the diagnosis of PTSD and the Applicant’s symptomology including nightmares, flashbacks, hyper vigilance, and anxiety and panic attacks. Medication was prescribed for her PTSD and anxiety and she was referred for cognitive behavioural therapy.

12With respect for her claim for lost income, the Applicant provided a letter from her employer confirming that she received STD benefits which paid her 100% of her salary as of [date], 2016 and until she returned to work on [date], 2016. The Applicant then returned to the bank until she commenced short term disability leave again on [date], 2017 until [month], 2017. Pay stubs were provided to show her average earnings while employed at the bank.

Oral Testimony from Review Hearing

13With respect to the crime of violence the Applicant testified that on the day of the robbery she had only been a teller at the bank for 10 months and was quietly working at her computer when she heard voices. She turned and saw a man wearing a balaclava and waving a gun. The Offender directed her and the other bank employees not to push any panic buttons because if the police intervened there would be a “shoot out”. At one point the Offender was very close to her (approximately 2 feet) and was demanding $10,000.00 cash. The gun was pointed directly at her and the robber was becoming more and more agitated because he was not getting what he was asking for. The Applicant described that she “felt like she was trapped in a vehicle that was about to explode”. The Applicant was concerned for the safety of the other bank staff members and customers and went to the front door to warn customers outside not to enter the bank. She was concerned he would see her do this and shoot her.

14The Applicant’s oral testimony provided additional information about the impact the incident had on her mental health. She explained how the incident drastically affected her ability to return to work. Following the robbery the Applicant could not stop shaking and became hyper vigilant. It took the police approximately a month to apprehend the Offender and during this time she felt very unsafe in the community and was worried he would show at her home. Since the incident the Applicant has nightmares of her daughter being killed and of being chased with a gun. Because of these dreams and of her anxiety symptoms she now needs Lorazepam to sleep. The stress the Applicant experienced also adversely impacted her relationship at the time and she attributes this in part to her PTSD symptoms.

15With respect to her claim for loss of income, the Applicant testified at the hearing that she wanted to return to work in [month] 2016 but her PTSD symptoms flared up again and she was unable to do so. She received STD benefits from [month] 2017 until [month] 2017, after which she applied for LTD benefits, which were denied. As a result, she has had no source of income since [month] 2017 and is still not working.

Analysis and Decision

16Having considered all the circumstances in this case including the Applicant’s additional oral evidence which better explained, the lasting psychological impact the crime had on her, the nature of the crime of violence, aggravating factors and injuries sustained, and the impact the crime has had on her ability to work as a teller or at all, we now find the $5,000 awarded for pain and suffering to be unreasonable. The original amount awarded falls outside the range of compensation typically awarded in cases such as this one with such significant lasting injuries. The review is granted.

17The evidence obtained at the review hearing highlights that the Applicant has sustained severe psychological injuries, including PTSD which has prevented her from working. While the previous decision-maker did take into account her psychological symptoms, he appears to have minimized them and put too much emphasis on her minor pre-existing mental health conditions. After hearing from the Applicant at the oral hearing it became clear to the CICB that prior to the crime of violence the Applicant was working full time and fully functioning socially. Since the crime of violence she has been unable to work and has been afraid to leave her home. This information was confirmed by the Applicant’s therapists and family members who all emphasized how profoundly the Applicant has changed since the incident. This suggests that although the Applicant may have been pre-disposed in some way to her present condition, it has been greatly exacerbated by the crime of violence.

18The CICB finds therefore finds the Applicant compensable and awards her compensation for pain and suffering in the amount of $12,000.00 having regard to the fact that the incident occurred at her place of employment, included threats of violence and the use of a loaded firearm which was pointed directly at her.

19We accept that the Applicant continues to suffer from symptoms of anxiety and PTSD which continue to interfere with her activities of daily living, and authorize up to $2,400.00 (exclusive of any applicable taxes) for counselling sessions not covered by another benefit provider (for example your employer or insurance). These sessions must take place within the next three years (36 months from the date of this decision). The CICB will pay your qualified treatment provider directly.

20The Applicant received Short Term Disability from just after the date of the incident, [date], 2016, to [date], 2016, when the Applicant returned to work. The Applicant then commenced another short term disability leave on [date], 2017 until [month], 2017. Based on the confirmation contained in the Medical Report by the family doctor and the oral evidence provided by the Applicant at the hearing, the CICB accepts that the Applicant has had no income from [month] 2017 to present and that she continues to be unable to work because of the mental health symptoms stemming from the crime of violence. The previous Decision did not account for this other period of time and only considered that she was fully compensated for her initial loss of income with STD benefits until [month] 2017. The Employer’s letter confirms that the Applicant commenced another medical leave in [month] 2017 and was fully paid until [month] 2017 but does not speak to what happened after that. The medical report provided by the Applicant’s doctor does confirm that she has been off of work from [month] 2017 ongoing. In the Panel’s opinion, the previous member made an error of law by not explaining why he was not considering the Applicant’s ongoing loss of income. The CICB finds the Applicant to be compensable for her loss of income from July 2017 forward at the CICB’s maximum rate of $1000.00 per month. However, the maximum allowable award for lump sum payments is $25,000 pursuant to section 19(1)(a) of the CVCA is which states:

19(1) the amount awarded by the Board to be paid in respect of the injury or death of one victim shall not exceed, in the case of lump sum payments, $25,000

21Since the Applicant has been awarded $14,400.00 for pain and suffering and treatment expenses, the maximum lump sum for loss of income we can consider is $10,600.00.

22The CICB also awards $400.00 as contribution towards the Applicant’s legal fees.

Award

23The CICB now orders payment as follows:

Section 7(1)(a) Expenses- future therapy $ 2,400.00 Section 7(1)(b) Loss of Income $10,600.00 Section 7(1)(d) Pain and Suffering $12,000.00 Section 22 Legal Fees $ 400.00 TOTAL AWARD $25,400.00 Less: Future preauthorized award: -$ 2,400.00 TOTAL CURRENT AWARD $23,000.00

24The CICB recognizes that no amount of money can adequately compensate victims for the injustice they have suffered but also finds the amount of the award to be reasonable within the context of the CVCA.

Payment

25THE CICB ORDERS that the following sums be paid forthwith to:

Edward J. Kafka in trust for the Applicant $22,600.00 Kafka Kort Barristers $ 400.00