CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Keith Forde Date: April 26, 2017 Indexed as: (Re) 1601-01962
ORDER
Introduction
1The Applicant asks the Criminal Injuries Compensation Board (CICB) to compensate him for injuries resulting from a crime of violence which occurred on [date], 2014, in accordance with the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “Act”). He is seeking compensation for pain and suffering incurred from one act of physical assault, perpetrated by the Offender. The Applicant is also seeking reimbursement for medical, treatment expenses and loss of income/wages.
2The Offender pled guilty to assault cause bodily harm. The CICB was not informed of the final disposition of the Offender’s sentence.
Decision
3The CICB approves compensation to the Applicant in the amount of $10,000.00 for pain and suffering, $3,571.93 for loss of income/wages and $2,400.00 for future counselling for the reasons set out below.
Issues
4In this case, with respect to section 5(a) of the Act, there is no question that the Applicant was a victim of a crime of violence as proven through the conviction described above. As a result the CICB does not have to make a finding as to whether a crime of violence occurred.
The CICB must assess all relevant circumstances and whether or not compensation should be awarded and if so, the amount;
The CICB must determine whether the claim for medical, treatment expenses and loss of income/wages is supported.
Evidence
5The following is a summary of the facts and circumstances taken from the Applicant’s Application information and from the Police Services correspondences to the CICB.
6On [date], 2014, in the early morning hours, the Offender was involved in a loud verbal argument with another man. The Offender who was intoxicated had been arguing with another person whom he had been drinking with earlier.
7The Applicant who lived nearby where the Offender and the other person were arguing was outside his home making an outdoor skating rink for his children. The Applicant overheard the loud argument between the Offender and the other person and shouted at them to “Shut up.” The Applicant had young children in his house and did not want the noise to a wake them.
8After the Applicant had shouted several times to the Offender and the other man to keep the noise down, the Offender and the Applicant started to walk towards each other exchanging words. The Offender and the Applicant met in the street and were yelling at each other in front of the Applicant’s home. As the Applicant and the Offender stood there yelling at each other, the Offender punched the Applicant in his face and other parts of his body repeatedly. Neighbours upon seeing what was going on, were able to break up the fight between the Applicant and the Offender and notified the Police who arrived on the scene and commenced an investigation. As a result, the Offender was arrested and charged with assault cause bodily harm on the Applicant.
9The Police Services investigative synopsis noted that the Applicant suffered a broken nose, bruised ribs and contusions to his head.
10The Applicant also provided the CICB with various documents in support of his claim.
11The CICB was in receipt of medical reports from the Hospital noting that the Applicant presented in the emergency room suffering from facial injuries, bruising around left eye and nasal deviation.
12The Applicant was examined and discharged with instructions from Hospital. However, upon arrival home, the Applicant’s spouse did not like his physical symptoms and immediately took him to another Hospital where he was reassessed, examined and treated.
13The CICB was also in receipt of a medical report from [Name] Hospital which noted that the Applicant presented in the emergency room complaining of an obvious depressed nose, nose and face feels frozen and swollen, left ribs bruised, dizziness and feeling unwell.
14The [Name] Hospital report noted that the Applicant suffered a very severely comminuted nasal fracture of the nasal bone, with marked deviation to the left. The septum was also deviated to the right. There was a lot of dried blood and a large amount of bruising around the Applicant’s eyes. Dr. [Name] performed a closed reduction of the nasal bones surgery on the Applicant.
15The CICB was also in receipt of a medical report from the Applicant's Family Physician, Dr. [Name], who noted that the Applicant saw him in his office and was diagnosed with brain contusion, fractured nose, traumatic brain injury and Post Traumatic Stress Disorder (PTSD). [family Physician] also noted that the Applicant suffers from forgetfulness, inability to focus, headaches, anxiety, and cognitive deficit (memory organizing, executive functioning), depression and fatigue.
16The CICB was also in receipt of a medical report from Dr. [Name] of the [Name] Clinic who noted the Applicant presented with complaints of head, neck and lower back pain.
17The CICB was in receipt of a letter dated February 24, 2015 from Dr.[Name], a Clinical Psychologist who had been treating the Applicant since [date] 2014. The contents of [Psychologist]'s letter are as follows:
I have been meeting for psychological assessment and treatment on a regular basis since [date], 2014. He has been seen on 5 dates]. He carries a diagnosis of post-traumatic stress disorder, chronic, as a result of a physical assault that he experienced on [date], 2014. Some of his more prominent symptoms include: intense physiological reactivity to stress and to reminders of the assault; intense emotional reactivity to stress and to reminder of the assault; loss of memory for certain details of the traumatic experience; hyper vigilance towards threat in his environment; cognitive intrusions regarding the event (e.g., recurrent memories that cannot be controlled); and emotional numbing. It is anticipated that he will remain in treatment for several months as he strives to cope with this disorder, although a definitive prognosis is difficult to make as all individuals have varying responses to treatment. It is possible that he may remain symptomatic, to some degree, for the rest of his life.
Injuries
18The Applicant noted the following in his Application to the CICB:
Physical
Comminuted nasal fracture that was much deviated (broken nose);
Loose teeth;
Contusions all over his body, but mostly his head:
Sore testicles, sore ribs and spleen area;
Traumatic brain injury; and
Dizziness and confusion.
Psychological/Emotional
Diagnosed with PTSD;
Flashbacks;
Nightmares;
Depression, poor memory, confusion, poof concentration, irritability, frustration, dizziness, tremors, fatigue, and insomnia;
Strain on Applicant’s relationship with his wife and two boys, friends and other; and
Does not feel safe in his home.
Analysis
19Section 11 of the Act states that proof of 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 Act, as a result of an act of assault causing bodily harm, committed on [date], 2014, in the [City].
20Having considered the evidence presented in the Applicant’s Application and the Police information, the CICB is persuaded that the Applicant suffered physical injuries as a result of crimes of violence. The CICB finds the Applicant to be a victim within the meaning of section 5 (a) of the Act.
21The CICB accepts that the Applicant suffered physical and psychological injuries and the related symptoms that are described by the Applicant in the documentary information submitted to the CICB. The CICB also accept that the Offender’s crime was the contributing factor to the Applicant’s ongoing psychological injuries.
22In assessing compensation for pain and suffering, the CICB has considered the totality of the evidence of injury, including the Applicant’s documentary reports, the Police synopsis as well as the medical/therapy reports on file. The CICB was mindful of the circumstances of this incident and the physical and psychological injuries suffered by the Applicant and considered the following aggravated facts:
That the Offender was a total stranger to the Applicant;
That the incident was unprovoked;
The sudden and unexpected nature of the attack;
That the Applicant required medical intervention and surgery to repair his injury;
The extent of the injuries sustained;
The associated period of recovery; and
The considerable impact the incident has had on the Applicant’s health, relationship and general and emotional state.
23Having considered these factors, the CICB awards the Applicant, $10,000.00 for pain and suffering.
24Based on the Applicant’s stated intention to enter into therapy in the near future, the CICB authorizes up to $2,400.00 (exclusive of tax) for counselling expenses to be paid directly to a qualified treatment provider upon receipt of a curriculum vitae outlining the credentials of the service provider (unless the CICB already has a copy on file). These sessions can only be accessed when the therapy sessions are not covered by other sources, such as your place of employment or insurance benefits. Therapy sessions should be completed within 36 months of receipt of this Order. It is the CICB’s practice to award up to $100.00 per session for therapy, or up to $125.00 per session for registered psychologists. Payment will be made directly to the treatment provider on a monthly basis, upon submission of an invoice and the required verification from the Applicant.
25The CICB has considered the Applicant’s income loss claim. It 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 now awards $3, 571.93 for income loss. The CICB’s calculations showed that the Applicant’s potential earnings during his disability period which were [date], 2014 to [date], 2014 and [date], 2015 to [date], 2016 to be $70,794.44 and the benefits he received to be $67,222.51.
26The CICB generally requires original receipts and/or other supporting documentation for any expenses that are claimed, both to verify the amount claimed and to confirm that such costs were not covered by other sources, such as private insurance. In the absence of such evidence, and having found no compelling reason to deviate from its usual practice in this instance, the CICB denies the expense claims for Psychotherapy and Physiotherapy. The Applicant noted that the amount $2,300.00 was paid by Manu-Life for these two services. The Applicant noted to the CICB that the total was $2,400.00 for these services. Since there is no receipt on file for payment of $2,400.00 to any service provider, the CICB is unable to consider this claim for the difference of $100.00 for the above mentioned reasons.
Award
27The CICB orders payment as follows:
Section 7(1)(a) Future counselling $ 2,400.00
Section 7(1)(b) Income Loss $ 3,571.93
Section 7(1)(d) Pain and Suffering $ 10,000.00
TOTAL AWARD (AND COSTS) $ 15,971.93
Less: Preauthorized treatment costs $ 2,400.00
TOTAL CURRENT AWARD $13,571.93
28The CICB recognizes that no amount of money can adequately compensate victims for the injustice they have suffered but also finds the amount of the award to be reasonable within the context of the Act.
Payment
29THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $13,571.93
DATED at Toronto this 26th day of April, 2017.
Keith Forde, Member