(Re) 1509-00690, 2017 ONCICB 194

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Veda Rangan

Date: July 20, 2017

Indexed as: (Re) 1509-00690

ORDER

INTRODUCTION

1The Applicant is seeking financial compensation from the Criminal Injuries Compensation Board (CICB) in accordance with the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “Act”). The Applicant is seeking expenses, loss of income, pain and suffering as a result of physical assaults, that occurred on [date] 2017 where he sustained physical/psychological injuries. The incidents were reported to the Police and the Alleged Offenders were charged with aggravated assault and assault with a weapon. Bench Warrants for both the Alleged Offenders are still outstanding.

DECISION

2The CICB approves the claim for pain and suffering and awards the Applicant the sum of $10,000.00 for the reasons set out below.

ISSUES

3The absence of a conviction does not mean that the CICB is precluded from making an order of compensation. Subsection 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. The Applicant is required to prove, on a balance of probabilities, not only that he was a victim of a crime of violence but also that his injuries resulted from the crime pursuant to subsection 5(a) of the Act.

4The Applicant must provide reliable evidence to support his claims for:

a. expenses actually and reasonably incurred as a result of his injury pursuant to subsection 7(1)(a) of the Act

b. income or pecuniary loss incurred as a result of his total or partial disability affecting his capacity for work pursuant to subsection 7(1)(b) of the Act.

THE HEARING

5The hearing was conducted in writing on the basis of the materials contained in the Applicant’s file.

Documentary Evidence

6The CICB received the following documents with respect to the claim: Police Report dated [date] 2015, Hospital Records from [Name] Hospital, [Name] Rehab Centre, CRA Report, Employer's Report, and Expense Invoice receipts.

Police Report

7On the day in question the Applicant and his female friend where talking to each other.

8At this time the two Alleged Offenders approached the Applicant and his female friend and Alleged Offender 1 put his arms around the Applicant’s neck. The Applicant told him to leave them alone and removed the Alleged Offender’s arm from his neck.

9Alleged Offender 1 at this point began gesturing that he wanted to fight the Applicant.

10The female friend intervened and stood between them both, while motioning for the Applicant to follow her into the lobby of the building. As they got to the front lobby door the Alleged Offender 1 threw a punch with his right hand and struck the Applicant in the face area and the Applicant fell to the ground unconscious.

11At this time the Alleged Offender 2 swung a bottle at the Applicant striking him as well as hitting in the elbow area. Both the Alleged Offenders then left the area. Police were called to the area and found the unconscious Applicant and transported him to [Hospital] for medical treatment.

12The Report also notes that the Alleged Offender 1 has not been arrested yet. A warrant is out for his arrest. He will be charged with the same offences as the Alleged Offender 2.

Hospital Report

13The EMS report notes the Applicant had a period of loss of consciousness, was noted to be ambulatory. The Paramedics note swelling to the left side of his forehead and to left cheek and appeared confused.

14CT of the brain demonstrated frontal and temporal contusions, and he was thus admitted to Hospital for observation. CT of the cervical spine demonstrated no acute fractures. The CT scan also indicated a thin acute subdural hematoma along the right frontal and temporal convexity, up to 4 mm in thickness. On [date] 2015 the physiotherapy and occupational therapy teams saw him and recommended that he undergo rehab. He was discharged in stable condition.

Toronto Rehab

15He was admitted to Toronto Rehab on [date] 2015 for Neurocognitive rehabilitation status post traumatic brain injury. At this place he required partial assistance for self- care, and had short term memory issues, significant headaches with increasing activity and bright lights, mild balance issues, and exacerbation of his pre-existing symptoms of depression and anxiety. Final report notes improvement in some of the areas of deficits.

CRA Report

16The CICB was in receipt of tax returns for the years 2012 to 2015.

Employer’s Report

17The Report notes that the Applicant was employed as Management Specialist for [Employer]. His first day of absence is noted to be [date] 2015 and return to duty as [date] 2016. The Applicant was in receipt of monies from Sun Life from [date] 2015 to [date] 2016 for LTD in the amount of $17,290.40, and [Employer] paid for STD from [date] 2015 to [date] 2015 a total of $12,529.87.

ANALYSIS AND DECISION

18For the following reasons the CICB grants the Application

19Based on the Medical Reports, and the Police synopsis, the Applicant’s written evidence, the CICB is persuaded that he is a victim of an assault pursuant to section 5 of the Act.

20Pursuant to section 5 of the Act, all claimants seeking compensation are required to prove, on a balance of probabilities, that they sustained bodily harm as a result of a crime of violence.

21Medical information on file with the CICB clearly indicates that the Applicant sustained a traumatic brain injury with post traumatic amnesia, left mastoid bone fracture from the punch, severe headaches, short term memory issues, difficulty with reading and speech requiring rehabilitation at [Name] rehab centre, and an exacerbation of previous existing symptom of depression and anxiety. He experienced limitations to perform daily tasks for several weeks and underwent physiotherapy to improve his mobility skills. His driver’s licence was suspended as a result of his injury. Based on the above information the CICB finds that the Applicant suffered injury as a result of the assault by multiple Alleged Offenders. The CICB therefore finds that he is a victim within the meaning of section 5(a) of the Act.

22In assessing pain and suffering the CICB has considered the unprovoked nature of the assault by multiple perpetrators, the serious nature of the physical injuries, the exacerbation of pre-existing symptoms of depression and anxiety and the impact on his life and employment.

23In consideration of his victimization the CICB awards the Applicant $10,000.00 for pain and suffering.

Loss of wages

24With regards to the Applicant’s claim for wage loss if the amount of $10,000.00 the CICB has considered all of the information provided to the CICB including Employer’s Report, CRA returns, and the amounts paid by Sun Life and [Employer] and finds that the Applicant did not incur any loss of earnings. The claim is therefore denied.

Expense Claim

25The CICB considered the Applicant’s claim in respect to ambulance cost, for which a receipt was provided. The CICB finds such costs to be both reasonable and within the context of the Act and will therefore award $45.00 for such costs.

26The CICB considered the Applicant’s claim in respect to Hospital cost in the amount of $750.00 and finds that Sun Life had already covered this cost and hence the CICB denies this claim for $750.00.

AWARD

27The CICB orders payment as follows:

Subsection 7(1)(a) Expenses $ 45.00

Subsection 7(1)(d) Pain and Suffering $10,000.00

TOTAL AWARD $10,045.00

PAYMENT

28THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $10,045.00