CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Maija Laitinen
Decision Date: March 3, 2019
Indexed as: (Re) 1805-01739
DECISION
Introduction
1The Applicant applied to the Criminal Injuries Compensation Board (CICB) seeking compensation for injuries resulting from an assault that occurred on a university campus in [..]. The Offender was charged with aggravated assault contrary to section 286(2) of the Criminal Code RSC, 1985, c.C-46, (CCC) and was convicted of the lesser included offence of assault following a guilty plea. The Applicant is seeking the following forms of compensation: pain and suffering, medical expenses, treatment expenses, dental expenses, loss of income and other expenses.
Decision
2In accordance with the Compensation for Victims of Crime Act, RSO 1990, c.C24, as amended (CVCA), the CICB grants the Application and awards the Applicant $9,948.02. The reasons for this Decision follow below.
Hearing
3The hearing was conducted in writing on the basis of the materials contained in the Applicant’s file. The CICB received the following documents with respect to the Applicant’s claim: police reports, university occurrence report, court documents, hospital records, ambulance call report, a dental report from the Applicant’s family dentist, dated July 5, 2018, a dental report from the Applicant’s oral surgeon, dated August 2, 2018, an estimate for future orthodontic treatment, dated October 24, 2018, receipts for out-of-pocket expenses and an employer’s report, dated July 18, 2018.
Analysis
Crime of Violence
4According to the police reports on file, the Applicant, who was a university student at the relevant time, was walking to his car after class when he was approached by the Offender. The Offender muttered something and then punched the Applicant on the right side of his face. At page 4 of his Application, the Applicant states that the Offender (who was known to the Applicant as an acquaintance) appeared agitated and berated him about a past relationship with a female friend. When the Applicant turned to get into his car, the Offender “sucker punched” him and ran away. The Applicant states that he collapsed and momentarily lost consciousness following the assault.
5The incident was reported to police, and the Applicant was transported to hospital via ambulance. The Offender was charged with aggravated assault contrary to section 286(2) of the Criminal Code and was convicted of the lesser included offence of assault following a guilty plea.
6Pursuant to section 11 of the CVCA, a conviction is conclusive evidence that a crime of violence occurred. As there was a conviction in this case, the Applicant is required to prove on a balance of probabilities that his injuries resulted from the crime of violence.
Injuries
7Based on the documentary evidence on file, I am satisfied that the Applicant sustained physical and psychological injuries as a result of the assault. The hospital records confirm that the Applicant presented at the emergency department with swelling to his right lower jaw, one missing tooth and two cracked/fractured teeth. The Applicant sustained an “open mandibular fracture” and underwent emergency surgery involving the insertion of wires and screws to immobilize his jaw. The Applicant states that surgery also required the removal of a permanent wire retainer used to maintain the alignment of his lower front teeth following orthodontic treatment he received prior to the assault.
8The Applicant was discharged from hospital the day after the assault. He was prescribed pain medication and placed on a liquid diet. At page 9 of his Application, the Applicant states that he remained on a liquid diet for approximately 2.5 months and lost approximately 20 pounds. He states that he missed approximately four months of work and his university graduation was delayed since he was unable to attend classes.
9At page 9, the Applicant states that his bottom teeth shifted as a result of this assault, and he will require orthodontic treatment in the future. He states that his chin remains “numb” and eating hard food causes pain and for his jaw to “pop”. He takes Advil to relieve the pain. He states that in the months following the assault he was “extremely nervous” and was “constantly looking over shoulder”, but these feelings have improved and now occur less often.
10The dental report, dated August 2, 2018, was completed by the oral surgeon who operated on the Applicant. He states that the Applicant sustained a “right and left mandibular fracture”. He confirms that the Applicant underwent: “surgical repair of left jaw fracture with plate to stabilize. Arch bars and wires to secure both upper and lower jaw in place”. He states that the Applicant’s prognosis was “good for bony fusion” and estimates approximately 4 weeks’ recovery.
Compensation
Pain and Suffering
11In assessing the claim for pain and suffering, the CICB considered the nature and extent of the Applicant’s injuries and his need for future treatment as well as the fact that the assault was random and unprovoked. The CICB awards compensation for pain and suffering in the amount of $6,000.00. This amount is consistent with awards the CICB has made to other victims of crime who experienced similar incidents and injures.
Expenses and Income loss
12The 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 his total or partial disability affecting his capacity for work
pecuniary losses resulting from his injury and any other reasonable expense that the CICB considers is reasonable
13Based on the receipts on file, the Applicant’s claims for $153.02 for prescription medication and $45.00 for ambulance fees are approved. In a letter, dated July 11, 2018, the Appellant’s Legal Representative advised that these amount were paid by the Applicant’s Mother. These amounts will therefore be paid by the CICB directly to the Applicant’s Mother.
14The CICB has denied the Applicant’s expense claim for groceries related to his liquid or soft food diet. Based on the receipts on file, the CICB is not satisfied that these expenses exceeded what the Applicant would have had to incur for meals had the incident not occurred. The CICB generally awards compensation only to cover expenses related to treatment of the injuries sustained (i.e. hospital, medication or therapy expenses) and not for expenses related to personal items, such as groceries. Having found no compelling reasons to deviate from its usual practice in this instance, the Board declines to award compensation for the Applicant’s claims for groceries
15The CICB has considered the Applicant’s income loss claim. While the Applicant states that he was off work for four months this is not consistent with the Employer's Report. The Applicant was employed part-time. He earned $14.00 per hour and worked approximately 4-5 days per week. Based on the information in the Employer’s Report, the CICB finds that it is more likely than not that the Applicant missed 7 days of work as a result of the assault. It is the CICB’s practice to reimburse income loss to a maximum of $50.00 per day. Having considered the particular circumstances of this case, the CICB finds no compelling reasons to deviate from that practice. The CICB awards the sum of $350.00 (7 days @ $50.00 per day).
Future Dental Treatment
16The CICB has considered the Applicant’s claim for future orthodontic treatment. The Applicant provided a consultation report from an orthodontist, dated October 24, 2017, which indicates that the Applicant’s teeth have moved since his wire retainers fell out after the assault. The orthodontist provides an estimate for future treatment using Incognito (hidden) braces in the amount of $7,035.00.
17Considering all of the circumstances and in the context of the CVCA, the CICB awards a contribution toward future orthodontic treatment in the amount of $3,000.00. The CICB finds a contribution to be reasonable within the context of the CVCA. The CICB also notes that the Applicant has provided only one estimate for one possible treatment option.
18Payment for future orthodontic treatment shall be made directly to an approved treatment provider on submission of an invoice, required verification form, and receivingconfirmation of the treatment provider's professional status unless the CICB already has confirmation on file. The CICB does not provide compensation for dental treatment covered by an Applicant's employment or insurance benefits.
Legal Fees
19Pursuant to section 22 of the CVCA, the CICB awards costs in the amount of $400.00 for legal fees. This amount will be paid directly to the Applicant's lawyer.
Award
20The CICB orders compensation as follows:
Subsection 7(1)(d) Pain and Suffering
$ 6,000.00
Subsection 7(1)(a) Expenses
$ 153.02
Subsection 7(1)(a) Expenses
$ 45.00
Subsection 7(1)(a) Future Pre-Authorized Expense
$ 3,000.00
Subsection 7(1)(b) Income Loss
$ 350.00
Section 22 Costs
$ 400.00
Total Award (and Costs)
$ 9,948.02
Less: Preauthorized treatment costs
$ 3,000.00
Total Current Award
$ 6,948.02
Payment
21The CICB orders the following be paid immediately to the:
Applicant
$ 6,350.00
Applicant’s Mother $ 198.02
Law Firm $ 400.00
Right to Reimbursement
22Should the Applicant be awarded compensation as a result of the civil action, the Applicant must notify the CICB immediately since the CICB is entitled to be reimbursed from those funds for any amount of compensation it has awarded to the Applicant pursuant to section 26(5.1) of the CVCA.
Dated at Toronto on this 3rd day of March 2019.
_______________________________
Maija Laitinen, Board Member