(Re) 1503-98766, 2017 ONCICB 127

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Keith Forde Date: May 26, 2017 Indexed as: (Re) 1503-98766

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], 2013, 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 assault with a weapon and weapons dangerous, perpetrated by the Offender. The Applicant is also seeking reimbursement for loss of income/wages, ambulance, prosthetic device and travel to treatment costs.

2The Offender pled guilty and was sentenced to one year in jail.

Decision

3The CICB approves compensation to the Applicant in the amount of $11,000.00 for pain and suffering and $25.00 for a thermoplastic wrist static splint, to be paid to [Hospital] 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.

a) The CICB must assess all relevant circumstances and whether or not compensation should be awarded and if so, the amount.

b) The CICB must determine whether the claim for loss of income/wages, ambulance, prosthetic device and travel to treatment costs is supported.

Evidence

The Applicant's Evidence

5The following is a summary of the facts and circumstances taken from the Applicant's Application information and from the [Name] Police Services correspondences to the CICB.

6The Applicant and the Offender have known each other for approximately five years. On [date], 2013, the Applicant and the Offender were consuming alcoholic beverages together in the Applicant's apartment in the [City].

7At some point while the Applicant went to the kitchen to make him and the Offender a drink, the Offender for no apparent reason and without provocation, picked up a knife from a nearby table, grabbed the Applicant's right arm and forcefully slashed it. The wound to the Applicant's right hand was so extensive it completely severed six tendons causing the Applicant to suffer a large amount of blood loss.

8Police and paramedics arrived on scene and the Applicant was transported to [Name] Hospital where emergency surgery was performed in an effort to save the Applicant's hand.

9Upon Police arrival at the Applicant's apartment, the Offender was arrested and charged accordingly.

10The Applicant also provided the CICB with various documents in support of his claim.

11The CICB was in receipt of Medical Reports from [Name] Hospital which noted that the Applicant presented on [date], 2013 with tendons laceration to right hand. The Applicant was immediately taken into surgery and an irrigation and debridement of the right wrist; exploration of the right wrist joint and debridement of the right distal radius fracture. Arterial injuries, along with tendons repairs were performed. A small flake fracture was detected. The Applicant's hand was casted after the surgery and he was discharged on [date], 2013 with instructions. On [date], 2013 the Applicant attended a follow-up appointment at the Hospital and was fitted with a pre-fabricated wrist splint.

Injuries

Physical

12The Applicant noted the following limitations and injuries in his Applicant to the CICB:

• Unable to throw a baseball or shoot hoops;
• Was a very active and athletic person and feels this has been taken away;
• Physical pain from incident was excruciating;
• Was put into a cast and multiple braces, which were hard to pull and move;
• Suffered for six months post-incident;
• Wrist was disabled;
• Had six tendons severed and the seventh was 70 % cut; Notes an artery was also cut;
• Had flake fracture to bone and has restricted mobility with the wrist and fingers of right hand; and,
• Restricted mobility with wrist and fingers.

Psychological/Emotional

• Was initially very disappointed and confused;
• Angry;
• Disappointed;
• Confused; and
• Life completely changed.

Analysis

13Section 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 with a weapon and weapons dangerous, committed on [date], 2013, in the [City].

14Having 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.

15The 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 physical and ongoing psychological injuries.

16In 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 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 and Applicant knew each other;
• That the vicious assault took place in the Applicant's apartment;
• That the incident was unprovoked;
• The sudden and unexpected nature of the attack;
• That the Applicant required medical intervention and surgery to repair his injuries;
• 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.

17Having considered these factors, the CICB awards the Applicant, $11,000.00 for pain and suffering.

18The CICB considered the Applicant's claim in respect to thermoplastic wrist static splint costs, for which a receipt provided. The CICB finds such costs to be both reasonable and within the context of the Act and will therefore award $25.00 for such costs to be paid to [Hospital].

19The 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 ambulance costs.

20It is the CICB's practice to only consider travel to treatment costs when an applicant is required to travel more than 40 kilometres each way (80 kilometres round trip) outside of his city of residence for treatment. The CICB finds no compelling reason to deviate from that practice under the circumstances. Since the Applicant was not required to travel more than 40 kilometres each way for his treatment/counselling sessions, these expenses are denied.

21It is the CICB's usual practice to consider awarding income loss only in situations where an Applicant was actually employed at the time of the incident. The information files with the CICB clearly showed that the Applicant was unemployed at the time of the assault. Having found no compelling reasons to deviate from its usual practice in this instance, the CICB declines to make an award for income loss.

Award

22The CICB orders payment as follows:

Section 7(1) (a) Prosthetic device $ 25.00

Section 7(1) (d) Pain and Suffering $11,000.00

TOTAL AWARD (AND COSTS) $11,025.00

23The 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

24THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $11,000.00

[Hospital] $ 25.00