CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Jo-Anne Hughes
Indexed as: (Re) 1511-01502
ORDER
Introduction
1In this case, the Applicant submitted a claim that he was assaulted by the Alleged Offender who was armed with a hammer.
2In this case, the CICB is required to determine whether a crime of violence has occurred as per section 5(a) of the Act, what injury, if any, arose from it, and the relevant circumstances affecting whether or not compensation should be awarded and if so, the amount.
Incident
3In his October 2015 submission to the CICB, the Applicant wrote that on the night of the incident, he was walking outside of his apartment building when he was attacked by a stranger (the Alleged Offender) who used a hammer to hit him in the head several times.
Police Report
4The CICB received several reports from the [Name] Police Service which confirmed the details of this [date], 2014 incident as described by the Applicant. Police confirmed it was an unprovoked attack and the Applicant’s head was hit several times by the Alleged Offender with a “blunt force object that is believed to be a hammer”.
5As a result of their investigation, Police charged the Alleged Offender with aggravated assault and possession of a weapon dangerous to the public peace. On [date], 2016, the Court found the Alleged Offender to be not criminally responsible on both charges.
Injuries
6In his submission to the CICB, the Applicant summarized his injuries as:
- Multiple head injuries, loss of sight in one eye, broken nose
- Difficulty eating food
- Constant dull pain in the head
7He also wrote that he was anxious and feared the loss of sight in both of his eyes. He has sleep issues, waking up 2-3 times per night with vivid, scary dreams and nightmares. His family flew from abroad to come and look after him while he was disabled and unable to care for himself.
8The Applicant is constantly reminded of this incident as he has large scars on his face and nose. He feels anxious to walk outside and he fears that he might be attacked again from his blind side.
9The Applicant wrote that he saw a Plastic Surgeon and he had plans to see an Eye Specialist, Nose Doctor and a Psychiatrist to help with his injuries.
Medical Reports
10The CICB received several reports from the [Name] General Hospital in support of the Applicant’s claim. A CT scan showed the Applicant suffered from three deep facial fractures and a ruptured left eye globe which was oozing fluid. Doctors performed emergency surgery to repair the rupture to the Applicant’s left eye.
11Five days after the incident, a Report from the [Name] Eye Institute showed that the Applicant lost the vision in his left eye. The Applicant was hospitalized for five days and the Hospital noted that upon discharge, the Applicant was afraid to go home. Given the Applicant’s pre-existing condition of schizophrenia, he was also consulted by social work and psychiatry. On [date], 2015, the Applicant was offered an opportunity to stay in a hospital diversion facility if he had trouble coping at home and he instead preferred to be handled by the Mobile Crisis unit.
12The CICB received a Medical Report from Dr. [Name] who reported that the Applicant suffered from decreased hearing on his left side after this incident. However, he was re-assessed four months after the incident and his hearing loss was resolved.
13The CICB received a Medical Report from the Applicant’s Family Doctor, Dr.[Name], who confirmed that as a result of this incident, the Applicant lost the vision in his left eye. Also, the Applicant was unable to work from the date of the incident until [date], 2015.
14The CICB received a Medical Report from Dr. [Name] who confirmed that the Applicant suffered permanent injury to his left eye as a result of this incident.
Expenses
15In his submission to the CICB, the Applicant provided the following claims:
- The Applicant provided a receipt for $64.41 which he paid for the services of a PSW (nursing) on [date], 2015.
- The Applicant provided two receipts which he paid $125.00 and $100.00 for reports from Dr. [Name].
- The Applicant also claimed that he had to pay Molly Maid a total of $1,358.50 to clean his apartment on a monthly basis between [dates] 2015 (seven times) and then on an occasional, bi-monthly basis between [date] 2015 and [date] 2017 (another seven times; receipts provided).
- $45.00 for an ambulance expense and he claimed $291.62 in prescription drug expenses, but he did not provide any receipts.
- The Applicant claimed that he took taxi rides to various medical appointments for a total cost of $126.00. He did not provide receipts for this expense.
- The Applicant claimed that he spent $91.53 for “stamps and faxes” but he did not provide any receipts for these expenses.
- The Applicant provided a receipt for a “Schizophrenia Booklet” for $84.75
- The Applicant claimed that he had family members travel from [outside Canada] to come to [City] to care for him while he was disabled. He included copies of their plane tickets, which totaled to $2,204.24 US dollars. In a March 29, 2017 letter, his counsel noted that one of the Applicant’s sisters stayed for three days and another sister stayed for three weeks to care for the Applicant while he was totally disabled. Considering the exchange rate at the time, the Applicant claimed that the two plane tickets for his sisters cost $2,553.07 in Canadian dollars.
- The Applicant claimed he was off work from [date], 2014 until [date], 2015 and lost $9,644.00. He wrote that he received Sun Life Benefits from [dates] 2015 for a total of $13,610.00. The Applicant also claimed that he used $15,165.00 in sick leave benefits to pay for his time-off before [date], 2015.
16The CICB received a report from the Applicant’s Employer which showed that he earned his full-time wages until [date], 2015 and he was off work until [date], 2015. His average bi-weekly take home pay was $1,342.24 (or $2,952.92 per month). Also, the CICB received a report from Sun Life, who provided Short Term Disability payments to the Applicant. During the [dates], 2015 period, he would have normally received take home pay of $15,167.28 and instead he received take home pay of $14,246.76 in STD benefits. During the five months and three days that the Applicant was not paid by his Employer, his actual earnings loss was $920.52. So, 92% of the Applicant’s wages were covered by his benefits. The Applicant supported this claim with copies of his pay stubs.
17The CICB received notice from the Applicant’s counsel that on November 7, 2016, he initiated a lawsuit against a variety of individuals and organizations, including the Alleged Offender, for damages and costs related to past and future support and treatment required as a result of this incident.
18The CICB also received a letter from the Applicant’s counsel, dated May 1, 2017 which attempted to clarify the Applicant’s Loss of Income Claim. As seen above, the CICB calculated the Applicant’s claim based on information provided by his Employer which stated his net income
Analysis and Decision
19The fact that there has not been a conviction is not fatal to the Applicant’s claim. Section 16(1) of the Act provides that compensation may be awarded whether or not a person has been prosecuted or convicted of the offence giving rise to the injury or death.
20Considering the evidence presented, the CICB finds the Applicant, on a balance of probabilities, to be a victim of a crime of aggravated assault, and therefore, a victim within the meaning of section 5 (a) of the Act.
21In assessing compensation for pain and suffering, the CICB has considered the nature of this incident and how it affected the Applicant. In this case, the [age] year old Applicant was attacked with a hammer while he was outside of his apartment building. As a result of this incident, the Applicant suffered from the permanent loss of sight in his left eye, a broken nose and four other broken bones in his face. He was hospitalized for five days and then he took nearly nine months off work to recover from his injuries. The Applicant wrote that he had difficulty eating food and he suffers from a constant dull pain in his head. He fears another attack and especially because he is now blind on one side. Facial scars are a constant reminder of this incident to him.
22The Applicant’s claim was supported with Reports from Police, the Courts, a Hospital, and several Doctors. Considering this evidence and the submissions by the Applicant, the CICB assesses this award at $18,000.00.
23The CICB considered the various expense claims submitted by the Applicant, for which receipts were provided:
- $64.41 for a Personal Service Worker (nursing) on [date], 2015.
- $125.00 and $100.00 for two reports from Dr. [Name]
24The CICB finds such costs to be both reasonable and within the context of the Act and will therefore award $64.41, $125.00 and $100.00 respectively for such costs.
25The CICB has considered the Applicant’s claims in respect to house cleaning costs of $1,358.50. Since the Applicant provided no medical evidence other than his counsel’s assertion that “he has difficulty performing simple physical tasks”, under these circumstances the CICB finds it reasonable to deny the expense claims for such costs.
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 ambulance, stamps and faxes.
27With respect to the Applicant’s claim for taxi expenses, it 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 sessions, these expenses are denied.
28The 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/property/moving costs/financial debts or expenses related to pre-existing conditions. Having found no compelling reasons to deviate from its usual practice in this instance, the CICB declines to award compensation for the Applicant’s claims in respect to a “Schizophrenia Booklet” and for the travel expenses for his family members.
29The CICB considered the Applicant’s claim for loss of income related to used sick leave credits. However, the CICB notes that it generally awards compensation only in respect to actual income loss, that is, those situations whereby an applicant’s regular earnings were not covered by other benefits such as sick leave, vacation time, or other discretionary leave credits. Further, the CICB will only consider such claims where it can be proven that an applicant suffered actual income loss as a result of subsequently requiring time off work, without pay or benefit, on account of the fact that he no longer had accrued sick leave/vacation time/other discretionary leave credits. In the absence of evidence to establish an actual loss of income, and having found no compelling reason to deviate from its usual practice in this instance, the CICB declines award compensation for income loss related to used sick leave/vacation time/other discretionary leave credits.
30Based on the evidence in the claim brief and the analysis above, 92% of the Applicant’s net earnings were covered through an employer benefit which results in income tax implications that are unique to each recipient of such benefits. Furthermore, during the period of disability, the Applicant did not incur expenses that are usually associated with working outside of one’s home such as, business attire, dry cleaning, public transit, gas and parking, day care for children, restaurant meals, and incidentals. As a result, in the absence of evidence to the contrary, it is the CICB’s view that the Applicant did not sustain an actual wage loss since the 8% difference is offset by the cost savings related to the above factors. The Applicant’s wage loss claim is thereby denied.
31As noted above, the Applicant filed a lawsuit seeking damages from various parties. The CICB wishes to alert the Applicant that should he be awarded compensation as a result of the civil action which he initiated against the ‘AO et al’ in November 2016, 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 Act which states:
26(5.1) The Board is entitled to be reimbursed, out of any amount recovered by the applicant from the offender or any other party, for the amount of compensation awarded to the applicant.
Award
32The CICB orders payment as follows:
Section 7(1)(a) Expenses $ 64.41
Section 7(1)(d) Pain and Suffering $18,000.00
Section 22 Costs $ 225.00
TOTAL AWARD (AND COSTS) $18,289.41
33The 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
34THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $18,289.41
DATED at Toronto this 26th day of May, 2017
________________________________________
Jo-Anne Hughes, Member