CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Louise Charette
Decision Date: February 28, 2019
Indexed as: (Re) 1708-02511
DECISION
INTRODUCTION
1The Applicant applied to the Criminal Injuries Compensation Board (CICB) seeking compensation for pain and suffering, expenses and loss of income for injuries resulting from an assault that occurred on […].
DECISION
2In accordance with the Compensation for Victims of Crime Act, RSO 1990, c C24, as amended (CVCA), the CICB grants the Application. Our reasons for this Decision follow below.
ISSUES
3The fact that there has not been a conviction is not a bar to the Applicant’s claim. 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.
4The Applicant must prove, on a balance of probabilities, that she was a victim of a crime of violence and that the injuries she suffered result from that crime of violence.
5The Applicant must also provide reliable evidence to support her claim for expenses actually and reasonably incurred as a result of her injury pursuant to section 7(1)(a) of the CVCA.
6The Applicant must also provide reliable evidence of income or pecuniary loss incurred as a result of her total or partial disability affecting her capacity for work pursuant to section 7(1)(b) of the CVCA.
7In assessing compensation, the Board shall also take into consideration any benefit, compensation or indemnity paid or payable to the Applicant from any source other than social assistance pursuant to section 17(3) of the CVCA.
HEARING
8The Applicant appeared by teleconference and provided oral testimony. The Board also relied on the documentary evidence contained in the Applicant’s file.
EVIDENCE
9The Board reviewed the following; the application, police response, an ambulance call report, hospital records, medical records, prescription medication information, disability claims, employment related information and receipts.
10The Applicant wrote that she was physically assaulted by a female resident at the group home where she worked as a youth worker. She advised the Board that on the day of the assault, she and a co-worker had escorted residents to a local bowling alley for an outing. When they arrived, the facility was closed and the Alleged Offender became upset. As a result, she threw her bowling ball at the Applicant striking her in the thigh. When the Applicant attempted to restrain her, she was kicked in the head. She advised the Board that police and paramedics were contacted.
11The Applicant testified that on the day of the incident, she and her co-worker escorted six residents ages ranging between fourteen and eighteen. She recalled that the Offender became upset when they realized the facility was closed. The Applicant noted that she had never had problems with her in the past and was usually able to calm her down however not on this occasion. The Applicant was upset with the fact that the group home had allowed the Offender to carry her own bowling ball on this outing as she was of the view it could be used as a weapon. She testified that while she was trying to restrain her, the Offender latched on to her t-shirt which caused it to rip, exposing parts of her. She was eventually placed in restraints. The Applicant also stated that after the incident the Offender threatened to kill her.
12The Applicant testified that police were contacted and that she and her co-worker provided a statement. She stated that police advised her that the Offender was well known to them and that they would not to lay charges due to her mental health issues.
13The information obtained from the police indicates that they have no record of the incident.
INJURIES
14The Applicant writes that she sustained a concussion and associated symptoms as a result of the kick to the head. At the hearing, she reported bruising and pain. As well, she noted suffering from headaches/migraines and having difficulties with loud noises several times a week.
15With respect to her psychological/emotional injuries she wrote the following; anxiety, depression and post-traumatic stress. She also found it difficult to return to work as she had to interact with the Offender. At the hearing, she confirmed a pre-existing condition of anxiety however notes that the incident exacerbated her condition. She advised the Board she was diagnosed with PTSD and is currently taking medication for her depression.
16The ambulance call report confirms the Applicant reported being hit with a bowling ball to her left knee and kicked in the head. She was described as distressed but alert/oriented and able to communicate. She denied headaches or loss of consciousness. It was further noted that she had no pain and no complaints. The Applicant did not wish to seek further assessment at that time. No obvious trauma was noted.
17The Applicant noted that following the incident she attended the urgent care clinic. Notes from the clinic confirm she attended on the following dates in 2015:
On August 15, she presented with the following problems; back left leg injury and pain to wrist. In terms of diagnosis, concussion was noted.
On August 21, records show she was suffering from migraines, anxiety, PTSD and depression. It was also noted that she felt lightheaded.
On August 24, records indicate impression of depression.
On October 15, the Applicant requested a stress leave from work. She presented with the following problems; situational stress and anxiety. Mild concussion was also noted as well as pain, headaches and lightheadedness/dizziness. The period of disability was estimated at 2-4 weeks. It was noted that she was unable to work due to difficulties in focusing, situational stress, anxiety/depression.
18The disability form indicates she became unable to work on August 14, 2015, as a result of being assaulted. The form notes severe headaches, migraines, nausea and dizziness. The form dated October 2015 notes the following; stress, emotional distress, anxiety, PTSD, difficulties focusing, insomnia, loss of appetite and panic attacks. Physiotherapy/ massage therapy was recommended. She was to be reassessed in 4 weeks.
19The patient medical records provided from August of 2015 indicate that a diagnosis of anxiety is possible as well as PTSD and depression. It noted that she became unable to work as of October of 2015 as she was unable to effectively cope with clients and staff and complete work expectations. Notes from December 2016 indicate that the Applicant is sleeping well, her eating and drinking is normal and as well she is involved in normal activities. Progress notes from March 2018 indicates the Applicant attended for her anxiety medication and that she was experiencing a lot of anxiety.
20A letter from the insurance company confirms the Applicant applied for disability benefits. She reported being unable to work due to stress, anxiety and PTSD. In support of this application, her family physician confirmed that she had been diagnosed with the following; situational stress, anxiety, depression as well as a concussion and that medication was prescribed. He also noted sleep disturbances and decreased appetite. The doctor stated the Applicant requested time off and that she was not happy with the company’s handling of the case. No medical report was submitted.
21A psychiatric consultation assessment dated July 2018 reveals that the Applicant was exposed to a chaotic and dysfunctional upbringing involving extensive physical and emotional abuse. A history of drug use was also noted. With respect to her past psychiatric history, it was noted that the Applicant had a 2 day admission at the age of 15 and was previously trialed on antidepressants.
22The assessment also indicated the Applicant was in school full time and was working during the summer to support herself financially. The Applicant related experiencing some anxiety around situations she could not control and talked about impulsivity and anger outbursts. She also noted experiencing nightmares and flashbacks and having difficulties connecting to people. In addition, she reported experiencing mood swings and depression. It was noted that she was recently prescribed Zoloft by her family doctor but was unable to take them in light of the possible side effects.
23In terms of impression and diagnoses, it was noted that the Applicant did not meet the criteria for any anxiety disorder nor for PTSD at that time. The following diagnosis was noted; persistent depressive disorder, cannabis use disorder and cluster B personality disorder traits. Treatment with medication and psychotherapy was recommended.
24A patient assessment dated November 2018 notes anxiety disorder and that a psychiatric consultation was recommended. The Applicant reported a difficult relationship with her mother and feeling disconnected. She was in school full time but reported isolating herself, feeling anxious, angry and sad. She was using marijuana to manage her anxiety.
25No treatment report could be provided at the time of the hearing. It was noted that the Applicant had hoped to benefit from some type of counselling however it had been too difficult for her to attend. The matter was adjourned to allow the Applicant the opportunity to provide additional information in support of her claim.
26In January of 2019, the Board was advised that the report would not be forthcoming and the request was to proceed with the decision with the information available.
ANALYSIS
27The Applicant testified that the incident was reported to the police. Law enforcement indicates that it does not have records of this assault. Section 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 injuries.
28The 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 the injuries resulted from the crime.
29Based on the documentary evidence submitted and the testimony at the hearing, we find the Applicant is a victim of a crime of violence.
30We also find the Applicant’s injuries resulted from the crime of violence as the medical records submitted to the Board confirm her injuries.
COMPENSATION
Pain and Suffering
31In assessing the claim for pain and suffering the CICB considered the extent of the Applicant’s injuries and her need for medical intervention.
32The CICB awards $6,000.00.
Expenses
33The Applicant must provide reliable evidence to support the claims for:
expenses actually and reasonably incurred as a result of injury;
income or pecuniary loss incurred as a result of her total or partial disability affecting her capacity for work.
34The Applicant's claim for the following expenses is approved.
- Prescribed medication $52.28 ($19.55 + $32.73).
35The following amounts are to be reimbursed to the Applicant’s representative for a total of $258.40.
Ambulance call report $103.40.
Medical records from clinic $50.00.
Hospital records $30.00.
Medical records and review of charts $75.00.
Income Loss
36The Applicant is also claiming for loss of income. A letter from the Government indicates that they consider the employee voluntarily left her employment with just cause because it was the only reasonable alternative given the circumstances. A request for reconsideration of employment insurance benefits form the employer completed notes the following “that the employee refused to be temporarily reassigned to work in another location after making negative remarks towards the child she was working with. She then resigned claiming constructive dismissal. They further noted that there was no change in schedule, wage, travel distance or job description. Allegations of unsafe work environment were said to be entirely unsupported by facts.”
37Documentation submitted confirms the Applicant’s employment insurance was approved. In addition, there is confirmation that her disability benefits claims were submitted however no documentation was provided confirming the amount paid out. At the hearing, the Applicant confirmed that the period of disability was three weeks and that during this period she was in receipt of 40% of her salary.
38In assessing compensation for her loss of income, the Board must take into consideration any benefit, compensation or indemnity paid or payable to the Applicant from any source other than social assistance pursuant to section 17(3) of the CVCA. That being said, although the Board did not have confirmation of the exact amount paid out to the Applicant, it took into consideration the benefits she received as per her sworn testimony.
39In light of the evidence, the Board is awarding $450.00 for loss of income. The information received from the clinic confirms that the Applicant’s period of disability was between 2-4 weeks. At the hearing, the Applicant confirmed she was off 3 weeks. She testified that during this period she benefitted from 40% of her salary. The Board’s standard rate is $250 per week, $750 for three weeks. As the loss was estimated to be at 60%, her loss of income was calculated at $450.00.
Counselling/Therapy
40As the Applicant intends to enter into counselling in the near future, the CICB authorizes up to $1,200.00, exclusive of any applicable taxes, for therapy sessions.
41The CICB awards up to $100.00 for each therapy session and up to $125.00 for each therapy session conducted by a registered psychologist. The CICB does not provide compensation for therapy sessions covered by an applicant's employment or insurance benefits.
42Payment is made directly to the approved treatment provider on submission of an invoice and receivingconfirmation of the treatment provider's professional status unless the CICB already has confirmation on file.
AWARD
43The CICB orders compensation as follows:
Subsection 7(1)(a) Future Pre-Authorized Expense $1,200.00
Subsection 7(1)(a) Expenses $52.28
Subsection 7(1)(d) Pain and Suffering $6,000.00
Subsection 7(1)(b) Income Loss $450.00
Subsection 22 legal fees $400.00
Subsection 22 medical records $258.40
TOTAL AWARD (AND COSTS) $8,360.68
Less: Preauthorized treatment costs $1,200.00
TOTAL CURRENT AWARD $7,160.68
44THE CICB ORDERS the following be paid immediately to the:
The Applicant $6,502.28
Law Firm $658.40
Dated at Toronto, Ontario this 28th of February , 2019.
Louise Charette, member