CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Louise Charette
Indexed as: (Re) 1803-01147
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, R.S.O. 1990, c. C.24, as amended (CVCA). The Applicant is seeking compensation for pain and suffering as a result of a physical assault that occurred on [date], 2016 and for which he alleges that he sustained both physical and psychological injuries. The incident was reported to the police and resulted in a conviction for assault.
Decision
2The CICB approves the claim and awards the Applicant the sum of $9,000.00 for pain and suffering for the reasons set out below. The CICB is awarding $2,400.00 for future counselling costs.
Issues
3A conviction may be taken as conclusive evidence that an offence has been committed pursuant to section 11 of the CVCA. Given that there was a conviction in this case, the Applicant is required to prove, on a balance of probabilities, that his injuries are the result of the crime pursuant to subsection 5(a) of the CVCA.
Hearing
4The hearing was conducted electronically. The Applicant provided oral testimony by phone. The Applicant was represented by the Legal Assistance of [city].
Documentary Evidence
5The CICB received the following documents with respect to the claim: the application, police report, hospital records from the [city] Regional Hospital, medical report from a pain specialist and follow up treatment, [name] healthcare notes, Acquired Brain Injury Outpatient Program intake and report.
The Application
6The Applicant writes that on the day of the incident, he witnessed the Offender repeatedly assaulting her spouse. He intervened hoping this would defuse the situation however as a result of him assisting, the Offender punched him twice in the face. The Applicant indicates that in an attempt to defend himself, he then also punched her in the face. The Applicant states that at this point “she barreled through us like a line backer and shoved me into a hallway wall” and that this caused him to hit his head. She then spit blood in his face from a cut in her mouth. He states that he did not realize this until later but that he knew however that he was covered in blood. As the spouse attempted to push the Offender back into their apartment, she came out with a twelve case of beer and “slammed it into his head”.
7The Applicant advised the CICB that he has suffered physical injuries as a result of the assault. He stated that he has lost a significant amount of physical strength causing mobility issues, making it difficult for him to care for himself and complete household tasks. He also noted that he now requires the use of a cane to get around. He also noted nausea and weight loss.
8According to the Applicant, he also sustained a concussion as a result of the assault. He believes that the concussion has led to migraines, episodes of blindness as well as memory loss. He advises the CICB that these symptoms have made it very difficult for him to read and write, something that was very much part of his life prior to the assault.
9The Applicant advised the CICB that he has also experienced psychological/emotional injuries. He noted that as he experiences fears and difficulties trusting and that he has limited his social interactions. He also reported feeling angry, vulnerable and anxious. He writes that the most traumatic part of the assault however was finding blood on his torso after the incident as he feared he may have been contaminated. He was checked by the health unit and it was recommended he undergo treatment to ensure he had not contracted an infectious disease.
Police synopsis
10The synopsis indicates that on [date], 2016 police responded to a complaint of a disturbance. Upon arrival, the officers observed beer bottles and other items scattered in the hallway.
11During the investigation, police interviewed the Applicant. He advised them he had witnessed the Offender repeatedly hitting her spouse and that he intervened. As a result, the Offender then struck him several times. In an attempt to defend himself he struck her in the face causing a laceration to her lip. She then began to bleed and proceeded to spit the blood in his face. It was noted that the Applicant continued to stay between the parties until they both left.
12After speaking with the Offender and witnesses, she was charged with two counts of assault, one on her partner and the second charge for assaulting the Applicant. She was later found guilty on both counts and received a suspended sentence with 12 months’ probation.
13The police SOCO report confirms that pictures were taken of the Applicant’s injuries. The police observed the following; small cut and slight swelling to the right side of his nose, small cuts on his hands. The Applicant had also advised police he had a lump on the top of his head however they were unable to observe bruising or a lump at that time due to the Applicant’s hair obscuring the area.
Windsor Regional Hospital Records
14Hospital records show that the Applicant was examined in [month] of 2010 for “worsening gait and weakness of arms and legs. An MRI of the brain was completed which came back normal.
15Records from [month] 2017 indicate the Applicant was referred for ongoing pain in his right hip. There was no evidence of fracture or lesion however it was noted that there was a mild cartilage irregularity in keeping with early osteoarthritis.
16Records from [month] 2017, also note a history of worsening gait and weakness of arm and legs. An MR spine exam was completed and the findings revealed a mild to moderate degenerative disc disease.
17Emergency records from [date], 2016 indicate that the Applicant attended the emergency department a few days after the incident occurred. He advised staff that he had been punched twice in the head and that the Offender struck him in the head with a case of beer. As he complained of headaches, he was referred for a CT scan and it was determined that there was no mass or hemorrhage, no fluid collection, CSF spaces were normal in size and shape and the bones, orbits and skull were normal.
18Emergency department records from [date], 2017 indicate the Applicant attended complaining of headache. He advises hospital staff that he was experiencing a “cluster headache”.
[Name] County Health Unit
19The CICB also reviewed records of visits to the clinic for blood testing. The Applicant was tested for HIV, hepatitis B and C, and syphilis in [date] 2016 and the result returned negative shortly thereafter. The Applicant returned to the clinic for a re-test and this result was also found to be negative.
Medical report from the pain specialist
20The medical report dated [date] 2018, indicates that the Applicant has bilateral hand pain dating back to 2001. In terms of his injury, it was also noted that he experiences right hip, leg and foot as well as bilateral shoulders and neck pain and that these injuries date back twenty years and are work related. As a result, the Applicant required weekly visits for nerve blocks. With respect to impairment, the pain specialist noted there was none.
21Clinical notes obtained from June 2017 confirm that the Applicant has had a history of right hip pain for twenty years and that the onset of the pain was associated with a work-related injury he suffered. It was noted that as he had failed to resolve the problem, and it has become chronic.
22The pain management notes also indicate that the Applicant experienced difficulties with the activities of daily living such as cleaning his apartment and personal hygiene and that this was due to the worsening pain. It should be noted that this was not linked to the crime of violence. The final impression was chronic neuropathic pain to the right leg.
23The pain management records also revealed that the Applicant was given a “diagnosis suspicion of fibromyalgia”. It was noted he did not pursue interventions and was placed on medications for neuropathic pain but had experienced multiple intolerances to several medications. His past medical history also includes a head injury in 2016 and an MRI revealing spinal stenosis.
24The records also indicated that the Applicant had been diagnosed with depression in the past and that he had been treated with antidepressants. Childhood physical abuse was noted. The following was also reported; guilt, lack of interest, changes in concentration and appetite. These were not linked to the crime of violence.
[Name] Healthcare
25The CICB also reviewed a consultation report dated [date], 2017 confirming the Applicant was referred with regard to a brain injury. It was noted that there was a previous history of an assault in 2015, with associated headaches which had improved since. The report referred to a CT scan which was conducted in [month] of 2016 and was found to be negative.
26At that time, the Applicant also reported significant left foot pain and generalized muscle pain which he associated with his autoimmune disease. He was receiving viral prophylaxis which resulted in increased generalized pain. His symptoms also included; memory loss, difficulty reading and spelling as well as short-term memory. It was also noted that the Applicant was no longer taking Cymbalta for pain management as it was causing him severe anhedonia (lost in interest in activities and decreased ability to feel pleasure). His past medical history also included obstructive sleep apnea, GERD and hyperlipidemia.
The Acquired Brain Injury Outpatient Program report
27The Acquired Brain Injury Outpatient Program report dated [date], 2018 noted that in terms of his mental health history, the Applicant had been diagnosed with personality disorder, anxiety disorder and chronic pain disorder.
28When asked about his current difficulties, the Applicant reported that his personality had changed since the assault and that he was more withdrawn socially. He stated he initially had problems with migraines and light sensitivity and that he had also experienced memory problems and difficulties reading since he had developed migraine headaches. He had been unable to return to work because of general weakness and pain in his right leg.
29It was noted that it is possible the Applicant experienced a mild traumatic brain injury/concussion as a result of the assault in [month] of 2016. The Applicant had reported moderately high level of stress in a number of areas of his life, and was described as quite focussed on physical symtoms, constantly seeking a diagnosis. Differential diagnoses would be Conversion Disorder and Illness Anxiety Disorder.
Oral Evidence
30With respect to the assault, the Applicant confirmed he was punched in the face twice, that the Offender spit blood at him and hit him over the head with half a case of beer. Although he had not informed the police that she had hit him over the head, the CICB accepted his testimony in that respect.
31The Applicant testified that since the assault, he has not fully regained his strength. He noted that prior to the incident, he had experienced pain in his hip however he did not find this to be a significant issue for him at this time. He stated however that he requires the use of a cane in order to do household chores and that he was not using it prior to the assault. He also reiterated the fact that he had suffered memory loss but noted it was improving. His migraines were said to be constant but less frequent and not as a severe. He still has difficulties reading and writing as it triggers his migraines. He also stated that he has better control of the nausea. The Applicant further reported that his periods of “blindness” after the incident lasted for an entire day and that this persisted for approximately 5 months following the assault. The treatments with medical marijuana was said to be helping his situation but that it was not eliminating the problem.
32He noted that his sleep has improved because of treatment but that he still experiences nightmares. He noted that he has trust issues and that as a result, his social situation has changed. The Applicant also testified that the assault has had an impact on his anxiety and stress level and that his sense of safety has been compromised. He does not feel safe and now feels like a target because of his physical weakness. He stated the marijuana helps control the stress.
Analysis and Decision
33In light of section 11 of the CVCA, there is no question that the Applicant was a victim of a crime of violence involving the Offender, as confirmed through the conviction on file. The CICB has to determine whether the Applicant has suffered injuries as a result of the crime of violence.
34The Applicant claimed he sustained both physical and emotional/psychological injuries as a result of the assault. The CICB relied on the Application submitted and the Applicant’s testimony which has already been described in this decision.
35In support of his claim, the Applicant submitted medical records/report, treatment records and an assessment report. The medical records submitted show the Applicant’s ongoing struggle with pain management. This pain was said to be work related and that it dated back twenty years. That being said, it was not linked to the crime of violence. The pain management records also noted the following diagnoses; mild to moderate degenerative disc disease, spinal stenosis, fibromyalgia and arthritis.
36In relation to the crime of violence, the emergency records confirm the Applicant complained of headaches shortly after the incident and during another hospital visit. The Applicant maintained he has suffered a concussion as a result of the assault. The hospital records makes no reference to a concussion however the Acquired brain Injury report notes that a mild brain injury/concussion is possible. It also notes a prior assault dating back to 2015.
37With respect to the Applicant’s emotional/psychological injuries, some of the medical evidence on file suggests that the Applicant previously suffered from depression and anxiety unrelated to the crime of violence.
38Based upon a review of the documentation on file and the testimony provided, the CICB finds the Applicant to be a victim of a crime of violence within the meaning of and pursuant to subsection 5 (a) of the CVCA. The CICB accepts that he sustained physical and emotional injuries as a result of the crime of violence however notes that some of the injuries reported are not found to be directly related to the crime of violence.
39In assessing compensation for pain and suffering, the CICB has considered the nature of this incident and how it has impacted the Applicant.
40Based on the Applicant’s stated intention to enter into therapy in the near future, the CICB authorizes up to $2,400.00 (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. It is the CICB’s practice to award up to $100.00 per session for therapy, or up to $125.00 per session for registered psychologists. Payment may be made directly to the treatment provider on a monthly basis, upon submission of an invoice and the required verification from the Applicant. 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 $2,400.00 amount described above.
Award
41The CICB orders payment as follows:
Subsection 7(1)(a) Future Pre-Authorized Expense $ 2,400.00
Subsection 7(1)(d) Pain and Suffering $ 9,000.00
TOTAL AWARD (AND COSTS) $11,400.00
Less: Preauthorized treatment costs $ 2,400.00
TOTAL CURRENT AWARD $ 9,000.00
Payment
42The CICB orders that the following sums be paid forthwith to:
The Applicant $9,000.00
DATED at Toronto this 29th day of November, 2018.
Louise Charette, Member