Re 1601-02130, 2019 ONCICB 90

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicators: Julie Lassonde and Pamela Arnott

Date: May 29, 2019

Indexed as: (Re) 1601-02130

DECISION

Introduction

1The Applicant requested a review of the Variation Decision issued July 16, 2018, unreported, in accordance with section 10(1) of the Compensation for Victims of Crime Act, RSO 1990, c. C24, as amended (CVCA).

2Section 10 provides:

(1) Where an application is heard by a single member of the Board under section 9, the applicant or the Minister may, within fifteen days after service of the decision of the member, require a hearing and review by the Board and the Board shall fix a time and place for the hearing and shall at least ten days before the day fixed cause notice thereof to be served upon the parties to the proceeding.

(3) The hearing shall be conducted and the jurisdiction of the Board shall be exercised by at least two members of the Board and the member whose decision is being reviewed shall not sit on the review.

(4) After a hearing and review by the Board under this section, the Board shall make its order in accordance with this Act and its order supersedes the order of a single member made under section 9 that is the subject of the hearing and review.

3Rule 19.2 of the CICB’s Rules states:

An applicant may request a review of the decision of a single member on the grounds that the decision contains a serious error of law or an unreasonable exercise of discretion.

Issue

4The Panel must decide whether the Applicant has identified a serious error of law or an unreasonable exercise of discretion in the Variation Decision. In a section 10 review, the Panel will only consider the evidence available at the time of the decision was made and, based on Rule 17 of the CICB Rules, new evidence should only be considered when all of the following three circumstances apply:

a) The evidence could not have been obtained earlier with reasonable diligence on the part on the Applicant;

b) The evidence would probably have an important influence on the result of the case;

c) The evidence is apparently credible.

5The Applicant submits that there was an error in the Variation Decision. He explains that the Variation Decision wrongly states that he had not disclosed injuries that he suffered prior to the incident. He mentions that he had disclosed prior injuries in a medical report dated March 22, 2016 that was included in his original Application. The Applicant also submits it was not reasonable to deny him additional compensation for pain and suffering because the CICB would not have been able to know the extent of his injuries when the Original Decision was made on May 31, 2016. He submits that, if the CICB is unwilling to increase his compensation for pain and suffering, the CICB should provide him with additional compensation for physiotherapy or massage therapy expenses. The Applicant, however, does not contest the Decision regarding travel to treatment expenses.

6The Applicant has received the following orders from the CICB:

a. June 2016: pain and suffering in the amount of $15,000.00 and counselling in the amount of $2400.00

b. October 2017: physiotherapy and massage therapy in the amount of $1920.00

c. May 2018: physiotherapy and massage therapy in the amount of $1920.00.

Decision

7The Panel finds the Applicant has not met the test for review in regards to the award for pain and suffering in the Variation Decision.

8While it is true that the Member failed to consider the medical report dated March 22, 2016, which appropriately disclosed the Applicant’s prior injuries, this mistake does not constitute an error of law because it would not change the result of the Variation Decision.

9The Panel agrees with the Member that the extent of his injuries could not have been known by the CICB, the Applicant nor his medical doctors at the time. The Panel agrees with the Member that medical reports submitted by the Applicant demonstrate that the Applicant benefits from physiotherapy and massage therapy treatment. There is also no doubt that the evidence from the Applicant and his medical doctors is credible. However, notwithstanding this evidence, the Panel finds that the compensation awarded for pain and suffering is reasonable in the circumstances. The extent of the Applicant’s current injuries may have been caused by a variety of factors, including both his prior back injuries and injuries sustained as a result of the incident.

10To date, the Applicant has been awarded $21,240.00 in compensation as a result of all the orders made by the CICB since 2016. The Divisional Court in DGJD v. Ontario (Criminal Injuries Compensation Board), [2012] O.J. No 2696, stated that CICB has broad discretion to award compensation and that the CVCA “does not provide a victim with the entitlement to full compensation for his or her loss.” In the circumstances, the Panel considers that the Member reasonably exercised his discretion in denying the request for variation of the Applicant’s compensation for pain and suffering.

11As for the Applicant’s request to obtain additional compensation for physiotherapy and massage treatments, the Panel notes that compensation for physiotherapy, acupuncture and massage treatment was not discussed in the Decision and is therefore not subject to the present review. That said, the Panel acknowledges that the Applicant submitted documents from his physiotherapist and massage therapist indicating their recommendation that this treatment continue. The Applicant testified that it is the massage which he finds particularly beneficial in managing his back injuries.

12The Panel observes that, at the time of the hearing, the Applicant still had funds available from previous awards to cover physiotherapy, massage and counselling expenses. The Panel agrees to use its discretion to order that all the unused funds, including the amount of $2,400 from the June 2016 Decision awarded under the provisions of section 7(a) of the CVCA for counselling expenses, can be used for the purposes of massage therapy.

13The Panel believes that the entire amount of the award is reasonable and declines to make any other changes to prior decisions.

14For these reasons the request with regard to the Variation Decision is denied and that Decision is confirmed. However, the June 2016 Original Decision is modified to allow for unused funds to be used for massage therapy. The Applicant will now have until May 2021 to complete his massage therapy treatment.