CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Jo-Anne Hughes
Indexed as: (Re) 1508-00433
ORDER
Preliminary Matter
1Subsequent to the hearing on November 16, 2016, pursuant to section 7 of the Statutory Powers Procedure Act, the CICB proceeded to hear this Application and as a result, the CICB produced an Interim Order to pre-authorize $2,400.00 to pay for trauma counselling for the Applicant.
2The Decision in this case was reserved to December 16, 2016 to allow the Applicant time to get updated Employer and Medical Reports so the CICB would have the information available to fully adjudicate this case relative to the Applicant’s requirement for additional medical interventions and income losses related to the incident which is subject to this case.
Introduction
3In this case, the Applicant was attacked and stabbed several times by the Offender.
4In 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, rose from it; and the relevant circumstances affecting whether or not compensation should be awarded and if so, the amount.
Evidence
Incident
5In sworn testimony at the Hearing, the Applicant said he was just about to go to bed when his brother called him about 1:00 in the morning because a group of guys were seen outside of his girlfriend’s workplace (a bar) and the brother wanted to talk to one of the guys about some damage which that person had done to his car about six weeks earlier. The Applicant’s brother was calling him to come for ‘moral support’. The Offender was there with three other men and the Applicant was there with his two brothers.
6The Applicant walked up to the group of four men, showed his hands and said he wanted to talk to them. The Applicant was immediately hit in the face with something which cut his lips. (Later, the Applicant learned he was cut with a knife.) A friend of the Offender hit the Applicant with a beer bottle and he fell to the ground unconscious. When the Applicant opened his eyes, he was on the ground with a knife pointed at him. The Applicant tried to get up and the Offender starts stabbing him on the left side. The Offender screamed to his friend “Help me hold him down so I can kill him!” The other two men were fighting the Applicant’s brothers. The Applicant received some broken ribs and he eventually got the Offender off of him. Someone screamed, the Offender cut the Applicant’s arm and he ran away.
7The Applicant’s brother saw he was bleeding and took him to the hospital. The Applicant talked to police at the hospital and he was not asked to testify in court.
Police Reports
8In sworn testimony, the Police Witness said he was a ten year veteran of the Police Service and he spoke to the fully cooperative Applicant in the hospital. Police already did have a report about the damage to the brother’s car but no suspect had been identified. The Police Witness described the Applicant as “more level-headed” than his two brothers. Video surveillance of the parking lot confirmed the Applicant’s story it was clear that he did not go to fight – he just wanted to talk to the Offender who was convicted and served about 18 months. The Police Witness confirmed that in his opinion that the Applicant’s actions did not cause him to be attacked in this manner so there are no section 17(1) issues.
Injuries
9At the hearing, the Applicant testified that as a result of this incident, his stomach will be damaged for the rest of his life. He had five stab wounds to the left side of his torso and he was stabbed on his left elbow. He had a broken rib and a torn ligament in his left shoulder. He was in extreme pain and he has taken a lot of time off work because of the pain, four surgeries and the time required to recover from those surgeries.
10In his written submission to the CICB, the Applicant said he received stitches in his lip where he was cut with a knife and he had stitches up his left arm where he was stabbed. His arm was purple, bruised and in extreme pain. The broken rib made it very difficult to breathe and sleep. Doctors said one of the stab wounds was inches away from his heart which would have been fatal. The Applicant was hospitalized for a week with a chest tube draining his damaged lung.
11The Applicant wrote that as a result of this stabbing, he was unable to work for four months where he sat depressed and without his usual income to support his family. The Applicant had to visit a number of doctors before he was diagnosed with a torn ligament in his left shoulder. He started taking physiotherapy on [date], 2014 and he was going into [City] twice weekly for follow-up appointments. The Applicant did not have insurance coverage for his physiotherapy treatments. He began to develop stomach pain and on [date], 2015 he had surgery to repair a hernia which was caused by the incident. The Applicant wrote that he would be recovering from that surgery so he would be off work until [date] 2015.
12In [date] 2015, the Applicant’s spouse wrote to advise the CICB that subsequent to receiving surgery to deal with his injuries, additional related medical complications developed, which caused the Applicant to have two additional surgeries and which also required several additional months off work. As noted above, since the CICB had not received any additional medical and employer’s reports to cover the time period between [date] 2015 and the hearing date, the decision from the hearing was reserved pending receipt of that information.
Expenses
13The Applicant was off work for a significant amount of time recovering from his injuries and then to recover from three subsequent surgeries which were required to repair a persistent hernia which was caused in the original incident.
14In her [date] 2015 letter to the CICB, the Applicant’s wife wrote that he was off work for four and a half months after his first additional surgery on [date], 2015. He went back to work for three days, and then was unable to continue working due to extreme pain so after an assessment, he was unable to work and he had a second additional surgery on [date], 2015.
15On [date], 2016, the Applicant (and his Authorized Party his wife) submitted additional information to the CICB which described the time he was off work for the three surgeries he had between [date] 2015 and [date] 2016. Also, the Applicant claimed he was off work for an additional three weeks in [date] 2016 due to extreme abdominal pain. The Applicant’s letter was supported with a letter from his Employer which confirmed the dates and his claims were supported by numerous medical reports, which provided the pre-surgical consults, surgeries and discharge dates for the three additional surgeries which the Applicant had to endure in 2015 and 2016 subsequent to his initial surgery and recovery in 2014. Considering all of this information to support the Applicant’s Loss of Income claims, following are the CICB’s calculations for the time the Applicant was off work.
Period 1: [date] to [date], 2014 (4 months).
Per Employer’s Report: Average Pay per week: $707.75 or $3,043.32 per month. Gross Wage Loss: 4 months @ $3,043.32 per month = $12,173.30
Less Employment Insurance: $3,630.00
Net Loss: $8,543.30
16However, the CICB maximum Loss of Income is limited to $1,000 per month so the Loss of Income for this period is limited to: $4,000.00
Period 2: [date] to [date], 2015 (4.5 months).
Gross Wage Loss: 4.5 months @ $3,043.32 per month = $13,694.94
The Applicant exhausted all of his EI benefits, so they did not apply to this or subsequent periods.
17Considering CICB maximum of $1,000/month, the maximum award for this period is: $4,500.00
Period 3: [date], 2015 to [date], 2016 (3 months + 3 days).
Gross Wage Loss: 3.15 months @ $3,043.32 per month = $9,586.46
18Considering CICB maximum of $1,000/month, the maximum award for this period is: $3,150.00
Period 4: [date] to [date], 2016 (1.5 months).
Gross Wage Loss: 1.5 months @ $3,043.32 per month = $4,564.98
19Considering CICB maximum of $1,000/month, the maximum award for this period is: $1,500.00
Period 5: [date] 2016 (3 weeks).
Gross Wage Loss: 3 weeks @ $3,043.32 per month = $2,069.46
20Considering CICB maximum of $1,000/month, the maximum award for this period is: $680.00
21Total of the CICB maximum awards for all five periods of disability is: $13,830.00.
22Additionally, the Applicant submitted the following expense claims to the CICB, which were supported by receipts and medical reports:
Physiotherapy: $1,160.00
Prosthetic Device: $57.60
Travel to Treatment:
Five trips at 145 kilometers per trip: 5 X 145 X $0.40 = $290.00
Three trips at 260 kilometers per trip: 3 X 260 X $0.40 = $312.00
Total Travel to Treatment: $602
Total Expenses: $1,819.60
The Applicant also claimed he had $40.00 in Prescription Drug expenses but he did not submit a receipt to support that claim.
23Finally, as noted above, in December 2016, the CICB pre-authorized $2,400.00 to allow the Applicant to obtain counselling/therapy to help him cope with the trauma from this incident and his subsequent surgical experiences.
Analysis and Decision
24Section 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 is a victim within the meaning of section 5(a) of the Act as a result of a single incident of assault with a weapon.
25In assessing compensation for pain and suffering, the CICB has considered the nature of this incident and how it affected the Applicant. Also notable was the significant number of post-incident surgeries which were required to treat a recurring hernia injury from that incident. In the incident, the Applicant was attacked by the Offender with a knife and another person with a beer bottle. The Applicant received five stab wounds to his torso and one to his left arm. He was off work for a significant period of time (almost 14 months) and he was in extreme pain, hospitalized for a week with a tube in his lung. He had a broken rib and he took several sessions of physiotherapy to recover from his injuries. The Applicant endured four surgeries over a period of 20 months. Also, the Applicant has been informed by his doctors that as a result of his injuries, he will have to endure abdominal pain for the rest of his life. On an emotional level, the Applicant was clearly struggling with the aftermath of this trauma and he needed counseling to help him cope.
26The Applicant’s claim was supported with reports from police and numerous hospital reports. Considering all of this evidence and the submissions by the Applicant, the CICB assesses this award at $12,000.00.
27The CICB considered the Applicant’s claims in respect to his physiotherapy treatments and prosthetic costs, for which receipts were provided. The CICB finds such costs to be both reasonable and within the context of the Act and will therefore award $1,160.00 and $57.60 respectively for such costs.
28The 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 prescription drugs.
29As noted above, the CICB previously pre-authorized $2,400.00 to allow the Applicant to get trauma counseling to cope with the emotional aftermath of this incident.
30The CICB awards travel to treatment costs in the amount of $602.00, calculated at the CICB’s standard rate of 40¢ per kilometer (total of 1,505 kilometers @ 40¢ per kilometer).
31In considering this decision for the Applicant, the CICB is mindful of the maximum allowable award for lump sum payments pursuant to section 19(1)(a) of the Act, which states:
19(1) The amount awarded by the Board to be paid in respect of the injury or death of one victim shall not exceed,
in the case of lump sum payments, $25,000;
32Finally, the CICB considered the Applicant’s income loss claim which is summarized above. 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. In the details referenced above, the maximum amount which the CICB would usually award for Loss of Income in this case is $13,830.00. Since this expense exceeds the remaining limit allowed in a lump sum award, the CICB will therefore award a contribution of $8,780.40 towards this expense.
Award
33The CICB orders payment as follows:
Section 7(1)(a) Expenses $1,1819
Section 7(1)(a) Interim Award (Dec 2016) $2,400
Section 7(1)(b) Income Loss $8,780
Section 7(1)(d) Pain and Suffering $12,000
TOTAL AWARD (AND COSTS) $25,000.00
Less: Preauthorized treatment costs $2,400.00
TOTAL CURRENT AWARD $22,600.00
34The 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
35THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $22,600.00
DATED at Toronto this 1st day of February, 2017.
Jo-Anne Hughes, Member