CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: James Graham
Indexed as: (Re) 1712-04057
DECISION
Introduction
1The Applicant applied to the Criminal Injuries Compensation Board (CICB) seeking compensation for an injury resulting from a crime of violence. The Applicant is seeking the following forms of compensation: medical expenses, treatment expenses, dental expenses, travel to treatment expenses, pain and suffering, and loss of income.
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 $3,500.00 for expenses, $9,000.00 pain and suffering and $500.00 monthly for loss of income. The reasons for this Decision follow below.
Hearing
3The Applicant appeared by teleconference and provided oral testimony and submissions.
Evidence
4The Applicant testified that she was a community care worker for the Offender, a neighbor who has psychological troubles and requires care in addition to what his mother can provide. At the time of the incident, the Applicant was 61 and the Offender was 24.
5In […] a dispute arose between the Offender and his mother. The Offender was swearing at his mother and threatening to harm her. The Applicant intervened in an attempt to calm the Offender. However, the Offender punched her in the eye causing her to fall back striking her head and to pass out. When she came too, the Offender was still acting violently. The Applicant and the Offender’s mother barricaded themselves in the mother’s house until the police arrived.
6A neighbour who witnessed the assault provided a support letter for the Applicant in which he said that the Offender punched the Applicant in the face three times while she was lying on the ground.
7Court records show that the Offender was convicted of assaulting the Applicant.
8The Applicant stated that she was taken to hospital by ambulance, was treated for cuts and bruises, and returned home after about four hours. She stayed in bed for three days. She suffered concussion and has experienced memory loss. She had a severely blackened eye which lasted for two to three weeks. She was dizzy at times, had a sore neck and found it difficult to raise her head. She also suffered blurred vision and pain in her ribs.
9The Applicant thought she would get better but found that her back and ribs continued to hurt too much for her to work. Her occupation is that of house painter, and although she had several contracts at the time, she was obliged to sub them out because she could not do the work herself.
10She has not recovered physically and still cannot work. She has undergone numerous tests relating to symptoms that persist including headaches, neck aches, back aches and a jaw problem. She still experiences dizziness and loss of balance. Her depth perception is not right and she is now suffering foot pain. In addition, she is having depression and sleep loss as well as anxiety. She says that she is presently suffering from cognitive changes, blurred vision, hoarse slurred speech, confusion, forgetfulness, swallowing difficulties and stability problems. She cannot walk too far or stand too long. She has burning pain in her feet.
11The Applicant’s dentist reported a fractured tooth as a result of the assault which was repaired at a cost paid by the Applicant’s insurer. The dentist reported that the Applicant has a history of TMJ clicking, which continues to trouble her.
12The Applicant’s family doctor reported that the Applicant suffered head, neck and facial injuries. He has treated her for soft tissue injuries and referred her to a physiotherapist. He states that she is presently unable to work due to nerve pain, whiplash, and concussion, and paresthesia in her arms and legs. He is unable to estimate how long the impairment will last.
Analysis
Crime of Violence
13A 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 her injuries resulted from the crime of violence.
14It is clear that not all of the Applicant’s current physical problems stem from the assault upon her. The medical records make it clear that she had multilevel degenerative disc and facet disease before the incident occurred. The specialist who did the MRI for her found that her head problems were most consistent with microangiopathic change. Her dentist stated that her jaw problem stemmed from a pre-existent condition. Nevertheless, it is clear from the records produced that the Applicant was working as a painter prior to the injury, is unable to work since, and is suffering from continuing discomfort. The assault upon her was violent and damaging for a person her age and caused pain, depression, and an exacerbation of numerous problems.
Compensation
15In considering this claim, the CICB must keep in mind section 19 (1) of the CVCA which reads:
- (1) The amount awarded by the Board 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).
Pain and Suffering
16In assessing the claim for pain and suffering the CICB considered the concussion, whiplash, a broken tooth, bruising and pain caused by the assault. It appreciates that blurred vision and instability followed the assault and that the Applicant has been unable to return to the physical condition she was in prior to the assault. She has suffered depression, anxiety and loss of sleep. Taking the immediate injuries and ongoing difficulties into account, I award the Applicant $9,000.00 for pain and suffering.
Expenses and Income loss
17The 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
18The Applicant's claim for medical expenses is allowed in the amount of $734.00. The Applicant has provided receipts for massage therapy in the amount of $506.00, an eye examination in the amount of $98.00 and foot care services in the amount of $130.00 all of which were reasonable expenses in light of her injuries.
19The Applicant’s claim for travel expenses is allowed in the amount of $204.80, being one trip of 43 kilometres one way, two trips of 53 kilometres one way, one trip to the hospital of 51 kilometres one way and one trip to another hospital of 56 kilometres one way. The CICB pays travel at the rate of $0.40 for each kilometer travelled.
20The Applicant’s claim for dental expenses is allowed in the amount of $161.20. Although the amount of the invoice filed by the Applicant is $198.00, the CICB is limited in the amount it can award by Section 19(1) of the CVCA. Where both lump sum and periodic payments are awarded, the lump sum cannot exceed $12,500.00.
21The Applicant has claimed loss of income. In support she has produced statements from her employer, and Canada Revenue Agency (CRA) statements for 2014 to 2017.
22The Applicant received $12,200.00 between September 2017 and June 2018 for providing support services for the Offender. This arrangement came about as a result of conversations between the Offender’s mother and the Applicant. The arrangement came to an end with the assault since neither the Applicant nor the Offender’s mother were prepared to continue. Given the special nature of the work, it is unlikely that the Applicant would find similar work even if she were prepared to look. Further, the Applicant states, and the CRA records show, that she did not declare this money as income and did not pay tax on it. It is the CICB’s practice only to compensate for the loss of income which has been reported CRA. I find no reason in this application to vary from this practice and so the $12,200.00 earnings will not be considered in calculating income loss.
23CRA records show that the Applicant earned the following net amounts from her painting business:
2014 - $5,619
2015 - $5,520
2016 - $7,016
2017 – (2,437)
24The Applicant explained that most money is made in her business in the second half of the year so that income in the first half of 2017 was not fairly representative of income anticipated in the whole year. Taking into account only 2014, 2015 and 2016, her average annual income was $6,052.00.
25Taking into account unrecoverable expenses associated with earning such income, the CICB awards her $500.00 per month for loss of income commencing March 1, 2019.
26The CICB orders that the payments to the applicant should be reviewed periodically, beginning on or about March 1, 2021 and after that every two years or such other time period that the Board may deem appropriate.
Counselling/Therapy
27The CICB will pay up to $2,400.00 for therapy sessions. The therapy sessions must be completed within 36 months of receiving this Decision.
28The 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.
29Payment is made directly to the approved treatment provider on submission of an invoice, required verification form, and receiving confirmation of the treatment provider's professional status unless the CICB already has confirmation on file.
Award
30The CICB orders compensation as follows:
Subsection 7(1)(a) Expenses
$ 1,100.00
Subsection 7(1)(a) Future Pre-Authorized Expense
$ 2,400.00
Subsection 7(1)(d) Pain and Suffering
$ 9,000.00
Total Award
$ 12,500.00
Less: Preauthorized treatment costs
$ 2,400.00
Total Current Award
$ 10,100.00
Payment
31The CICB orders the following be paid immediately to:
Applicant
$ 10,100.00
Applicant Periodic payments of $500.00 per month commencing on the first day of March, 2019 pursuant to section 7(1)(b) of the CVCA subject to the terms set out in this order and subject to review by the CICB every two years.
Dated at Toronto on April 17, 2019
James Graham, Board Member