CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Louise Charette
Indexed as: (Re) 1708-02405
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 (the “CVCA”). The Applicant is seeking compensation for medical/treatment expenses, dental expenses, loss of income and pain and suffering as a result of a single incident of assault that occurred on [date] 2016 and for which he alleges he sustained physical and emotional/psychological injuries. The incident was reported to the police and resulted in a conviction.
Decision
2The CICB approves the claim and awards the Applicant a total sum of $24,090.00 for pain and suffering, expenses, legal fees and loss of income for the reasons set out below.
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.
4The Applicant must also provide reliable evidence to support his claims for:
- expenses actually and reasonably incurred as a result of his injury pursuant to subsection 7(1)(a) of the CVCA
- 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.
Hearing
5The Applicant provided oral testimony by phone. The Applicant’s representative and his assistant also participated during the hearing.
Documentary Evidence
6The CICB received the following documents with respect to the claim: the application, police synopsis, letter of support, hospital records, medical reports, therapy reports, assessment report, dental report, physiotherapist report, Boys and Girls club incident reports, hearing evaluation, report from chiropractor and a copy of his statement of claim. The Applicant also submitted an ambulance invoice and receipts from physiotherapy and counselling as well as chiropractic costs and Telus. The CICB also reviewed CRA assessments, Employment insurance report, and the insurance report. The Applicant also submitted pictures of his injuries. The CICB obtained further documentary evidence provided by [name] hearing on [date] 2018.
Application
7The Applicant writes that on the day of the assault he was working at a youth facility. A resident entered the premises yelling in anger, rushing into the staff office “backing him up against a filing cabinet”. The Applicant notes that he told the offender to back up however the offender took one step back and then punched him in the left side of the face. As he was bent over to protect his face, the offender continued to “pound” him on the back of his head. The Applicant also recalled being kicked. A co-worker called 911 and the offender left the scene. The Applicant was transported to the hospital.
8The Applicant reported that as a result of this assault, he suffered the following physical injuries; left orbital fracture (displacement of internal rim), 5mm depression left zygomatic arch (sinus fracture), facial swelling, residual cranial nerve damage, abrasion and swelling to left rear side of head. He recalled that he experienced a total blackout day following the incident.
9The Applicant writes that he still experiences persistent pain, swelling and numbness in the face, migraines/headaches, eye fatigue leading to blurred vision as well as a double vision and difficulty/pain chewing. He noted that he also experiences consistent fatigue, persistent nausea with accompanying emotional distress.
10The Applicant sustained a fall in April of 2018. He writes that this is a result of his post-concussion symptomology. As a result of this fall, he shattered the proximal end of the humerus bone and damaged the ligaments in the shoulder. The Applicant stated that an MRI in May of 2018 showed damage to the ligaments and tendons with damage to the rotator cuff and that surgery would be required once the bones have healed. Due to this injury to his right shoulder he notes pain and limited mobility.
11With respect to the psychological/emotional injuries the following was noted; depression and anxiety, fears, issues with self-esteem, sleep disturbance, nightmares, PTSD, reclusive behaviour, difficulties in interpersonal relationships, difficulties with daily activities such as reading, driving and exercise, poor self-esteem and weight gain.
12In his statement of claim, it is noted that as a result of the assault, the Applicant sustained the following injuries; concussion, post concussive syndrome including headaches and light sensitivity, facial orbital fractures, facial nerve damage including left side facial numbness, dental fractures and temporomandibular joint disorder, shoulder and hand injury, vision issues including a blurry right eye, droopy eye, eyes watering and diplopia, hearing loss/tinnitus, cognitive deficits, severe anxiety and depression, agoraphobia, PTSD, family conflict issues, trauma induced attention deficit disorder, sleep disorder and fatigue/low energy levels, syncopy, eating disorder for comfort/weight gain, flashbacks and nightmares and loss of focus/loss of concentration.
13The Applicant also submitted a letter of support from his spouse which confirms the seriousness of his injuries.
14The police synopsis supports the Applicant’s description of the assault and that he sustained multiple fractures as a result. The offender was charged and convicted of assault causing bodily harm and sentenced to nine months jail.
Medical information
15The [city] health ambulatory chart confirms facial fracture.
16The medical report completed by the plastic surgeon notes a left orbital fracture as a result of the assault. With respect to impairment it notes “none” and also “permanent impairment” related to numbness in left cheek and a period of disability of six weeks in relation to the orbital fracture.
17The medical report provided by the ophthalmologist notes a left orbital and left maxillary sinus fractures as a result of the assault. It confirms one post injury visit. Prognosis was considered good, the ocular status is noted as stable.
18The dental report indicates that as a result of the assault, the Applicant may require root canals on teeth 23 and 24. A referral to a specialist was recommended and the Applicant was advised he should see his medical doctor for treatment of his facial (left cheek) numbness and jaw (left TMJ) trauma.
19The physiotherapy report notes a head injury/concussion and 5 fractures on left side of his face/skull as a result of the crime of violence. His treatment was temporarily suspended due to his concussion recovery and it was noted that the Applicant must deal with the outstanding issues related to PTSD prior and that only after this is under control can they complete the final treatment. In terms of prognosis, the Applicant would have to be re-evaluated. Temporary impairment was noted however it is believed that anxiety and PTSD is a barrier. The period of disability noted was from December 2016 to present.
20The psychiatric assessment dated February 2017 provides the following diagnosis; generalized anxiety disorder, panic disorder and agoraphobia and symptoms of post-traumatic stress disorder, major depressive disorder, symptoms of adult ADHD and post-concussion syndrome.
21[Name] health care diagnostic report from 2018 shows a right rotator cuff tear.
22The medical report provided by the nurse practitioner notes left orbital fracture with left maxillary sinus fracture, face and right shoulder injury as a result of the crime of violence. It notes the Applicant was awaiting an appointment with orthopedics for his shoulder injury as well as an ENT referral for facial pain and hearing issues. The report notes he continues to have significant PTSD and anxiety from the assault as well syncope, blurred vision from the concussion and continued left facial pain from the fracture. Disability period from November 13th 2016 to present with permanent impairment noted.
23The therapy report submitted by the psychotherapist notes five facial fractures and a concussion. It was noted that as a result of the assault, the Applicant has suffered from PTSD like traits such as triggers and fear, hyper vigilance, flashbacks, anxiety and nightmares. It was also noted that he suffers from depressive symptoms and that he experiences shame, trust and relationship difficulties as well. Ongoing disability due to his PTSD like symptoms. In her therapy report dated October 22nd 2018, the psychotherapist also notes poor concentration, focus and energy and that the Applicant is still not working due to trauma. She notes his flashbacks continue to decrease and there is an improvement with respect to his time out of the house however his prognosis is still guarded and medication is prescribed. Fifteen additional sessions are recommended.
24The Peninsula chiropractic clinical notes confirms past treatment unrelated to the crime of violence. In the notes dating back to October 31st 2017, it is indicated that the Applicant has left sided numbness and tingling following a stroke two and a half years earlier which is said to not be completely resolved; “at 50% and that it randomly comes and goes”. It was also noted, that the Applicant experiences tinnitus, blurry vision at times as well as light-headedness and feeling faint. A letter dated March 2018 indicates that the Applicant’s care began prior to the assault however it was noted that he was making good progress and that upon examination after the assault, there was exacerbation of a previously detected spinal dysfunction and associated symptomatology.
25[Name] hearing care confirms that an examination was conducted on September 27th 2017 and that the Applicant was experiencing tinnitus in his left ear. An updated letter forwarded to the CICB, dated November 5th 2018, confirms that the Applicant had never been tested before. He reported problems associated with hearing and felt his hearing loss, particularly on his left side, had become progressively worse since the skull fracture. Test results shows a hearing loss and according to [name] it warrants the use of amplification and hearing aids and that premium speech enhancement technology is also recommended. A quote for patient cost is estimated at $6,026.00. The Applicant’s position is that the tinnitus is a direct result of the assault as it was noted that he did not suffer from this condition prior.
Oral Evidence
26The Applicant’s solicitor provided most of the testimony regarding the Applicant’s injuries during the hearing which the CICB permitted in light of the Applicant’s physical condition and the medical information on file. All the injuries listed in the documentary evidence submitted to the CICB were confirmed by the representative. He also referred to the support letter provided by the Applicant’s spouse which speaks to the severity of the Applicant’s injuries. Some of the injuries noted but not discussed in the medical evidence are, but not limited to the following; restlessness, periods of “fits”, difficulties with personal hygiene, sexual dysfunction as a side effect of his medication, feelings of vulnerability and anger.
27When asked to tell the CICB what the main issues preventing him from being functional were, the Applicant noted; his physical limitation, his lack of energy as well as his psychological injuries. He told the CICB that he used to be a confident individual but that since the assault he feels incompetent and broken, spending most of his days inside the house and feeling disconnected from his family.
28Although the Applicant has been following up with different treatment providers, it was noted that he will require further intervention in the future. As well, he will need to continue taking medication as prescribed. In terms of future treatment, the Applicant’s representative mentioned that psychometric testing will be required and that this has not been done to date due to the costs involved. The Applicant noted that costs of treatment is a major concern for him as he wishes to receive the specialized care he needs. His upcoming shoulder surgery was also noted and the treatment required for recovery.
29Although there has been some improvement in his condition, it was noted that the Applicant continues to experience significant symptoms as well as issues with day to day functioning. It was noted that the Applicant started as a very independent individual and is now considered to be in a state of vulnerability. In addition, it was noted that the Applicant has been off work for approximately two years and that he is no closer to returning to work. The Applicant currently has no source of income and it would appear that he relies on his spouse for financial support.
Analysis and Decision
30Section 11 of the CVCA states that proof of a conviction shall be taken as conclusive evidence that the offence has been committed. The CICB finds that the Applicant was subjected to a crime of violence as defined by section 5(a) of the CVCA, as a result of an assault causing bodily harm.
31Having considered the documentary evidence submitted to the CICB as well as the oral testimony at the hearing, the CICB is persuaded that the Applicant suffered both physical and psychological/emotional injuries as a result of a crime of violence and therefore finds the Applicant to be a victim within the meaning of section 5(a) of the CVCA.
32In assessing compensation for pain and suffering, the CICB has considered the nature of the incident, the injuries sustained, the medical interference endured and the period of recovery. The CICB was also mindful of the ongoing impact upon the Applicant. Having regard for all of these factors the CICB assesses compensation for pain and suffering in the amount of $6,000.00.
Loss of income
33The CICB has also considered the Applicant’s loss of income claim and is awarding $5,000.00 for this loss. The information on file confirms that the Applicant was in receipt of loss of income benefits from November 2016 to April 2018.
34The employer's report indicates that the claimant was first absent from work after the injury on [date], 2016 and that he has not returned since. He was considered a part time employee, earning $13.94/hour. As a result of the incident, he received 3 sick days paid, from [date] to [date] 2016 for a total of $326.19. This report also notes that the claimant received RBC insurance coverage however the start date is unknown but that he was covered until April of 2018.
35The insurance plan report shows a payment period from November 2016 until April 2018 and that the claimant was receiving $1,264.00 monthly.
36The employment insurance report confirms that the Applicant was paid sickness benefits at $256/week from [date] 2016 until [date] 2017.
37During the hearing it was noted that the Applicant was in receipt of Ontario works for a period of approximately one month and a half after his work insurance ended.
38It is the CICB’s practice to reimburse income loss to a maximum of $1,000.00 per month or $50.00 per day and having considered the particular circumstances of this case, the CICB finds no compelling reason to deviate from that practice. Accordingly, the CICB awards $5,000.00 for income loss which represents his loss from June of 2018 to the end of October 2018.
Future Loss of Income
39During the hearing, the Applicant's representative indicated that he wished for the CICB to consider future/long term loss of income, however, at the time was asking for an additional twelve months, at a minimum.
40The CICB has determined that there is insufficient evidence to support a periodic award. No medical report was provided to support this claim and as such there is no evidence before the CICB that the Applicant is permanently unable to work as a direct result of this crime of violence.
41The Applicant’s CRA records for the two years prior the assault show minimal income.
42The claimant also testified that he does not quality for ODSP. According to his testimony, his claim was denied because of his wife's financial situation however the CICB does not have confirmation of such.
43In addition, it was indicated that RBC, the claimant's work insurance plan, has given the Applicant the maximum allowable. The CICB did not have confirmation that the insurance will no longer provide coverage.
44In addition, it is unclear what the outcome of the civil suit will be regarding the income replacement as the matter is still on-going.
Travel to treatment expenses
45The CICB has also considered the Applicant’s claim in relation to the costs associated with travelling to treatment. In accordance with CICB practice, the distance travelled is reimbursed at a rate of 40¢ per kilometre.
46The CICB was able to confirm one appointment with Dr. [name] at 90km round trip therefore the CICB awards $36.00 for this expense. The CICB is also awarding a total of $320.00 for 4 trips to [name] health care. Travelling to the criminal trial is not covered and travelling to [name] and Dr. [name] could not be confirmed.
Expenses
47The Applicant’s claims is approved for the following expenses as the CICB has supporting documents on file;
- Concussion therapy treatments in the amount of $800.
- Ambulance fees in the amount of $45.
- Counselling fees in the amount of $200.
- Panoramic radiograph in the amount of $93 is approved.
- Dental expenses in the amount of $146.00 as per the dental report.
48The Applicant’s claims for the following expenses are denied as they were not supported by documentary evidence: Parking in the amount of $40.
49Expenses related to over usage of your cell phone. The CICB does not award compensation for these losses.
Future Treatment
50The CICB authorizes an amount of $650.00 as a contribution for chiropractic treatments not covered by another benefit provider. The information on file notes a pre-existing condition. These sessions must take place within the next three years and the CICB will pay the qualified treatment provider directly.
51The CICB also authorizes an amount up to $2,400.00 (exclusive of any applicable taxes) for future dental expenses as noted in the dental report and not covered by another benefit provider. This dental work 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.
52The CICB also authorizes an amount of $3,000.00 as a contribution for hearing aids. The CICB finds that this amount is reasonable in the circumstances. This purchase 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.
53The CICB also authorizes an additional amount of $2,000.00 for counselling sessions not covered by another benefit provider as the CICB confirmed that this would be the amount allocated at the oral hearing. It should be noted however that the psychotherapist recommended 15 further sessions at $100/session. 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.
54The CICB denies future concussion therapy at this time as it was noted in the medical/treatment report that the claimant needs to deal with his concussion symptoms first and then he would need to be re-evaluated prior to treatment.
Section 22 Costs
55It 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. The CICB finds 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 solicitor.
Maximum awards
56Section 19(1) of the CVCA indicates that the amount awarded by the CICB to be paid in respect of the injury or death of one victim shall not exceed:
(a) in the case of lump sum payments, $25,000; and
(b) in the case of periodic payments, $1,000 per month,
and where both lump sum and periodic payments are awarded, the lump sum shall not exceed half of the maximum therefor prescribed in clause (a).
57If the Applicant is awarded money in the future related to the incident from the civil action, he must reimburse the CICB for the money received. Section 26(5.1) of the CVCA states:
26 (5.1) The Board is entitled to be reimbursed, out of any amount recovered by the Applicant from the offender or any other party, for the amount of compensation awarded to the Applicant.
Award
58The CICB orders payment as follows:
Subsection 7(1)(a) Expenses (Section 14 Award) $1,200.00
Subsection 7(1)(a) Expenses $1,640.00
Subsection 7(1)(a) Future Pre-Authorized Expense (chiro) $650.00
Subsection 7(1)(a) Future pre-authorized (dental) $2,400.00
Subsection 7(1)(a) Future pre-authorized (counselling) $2,000.00
Subsection 7(1)(a) Future pre-authorized (hearing aids) $3,000.00
Subsection 7(1)(b) Income Loss $5,000.00
Subsection 7(1)(d) Pain and Suffering $6,000.00
Section 22 Costs: Contribution to legal fees $400.00
TOTAL AWARD (AND COSTS) $22,290.00
Less: Section 14 Award – already paid/authorized $1,200.00
Less: Preauthorized treatment costs $8,050.00
TOTAL CURRENT AWARD $13,040.00
Payment
59THE CICB ORDERS that the following sums be paid forthwith to:
Ashley Gnys Personal Injury Law Professional Corporation
in trust $12,640.00
Ashley Gnys Personal Injury Law Professional Corporation $400.00
Dated this 7th day of December, 2018
______________________________
Louise Charette, Member