CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Anne-Marie Langan
Indexed as: (Re) 1608-04672
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 compensation for pain and suffering, lost income, and reimbursement for treatment expenses as a result of a physical assault that occurred on [date], 2016. The incident was eventually reported to the Police but the Police were unable to obtain the video footage from the date of the event and unable to identify the suspect. The investigation is currently on hold.
DECISION
2The CICB approves the claim and awards $8,315.98 to the Applicant for the reasons set out below.
ISSUES
3The 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.
4If the Applicant has met the above threshold, in deciding whether or not to exercise our discretion to award compensation and the amount thereof, we must consider:
a. Whether the Applicant has refused reasonable cooperation with, or failed to report promptly the offence to a law enforcement agency pursuant to subsection 17(2) of the Act; and
b. Any benefit, compensation or indemnity paid or payable to the Applicant from any source other than social assistance pursuant to subsection 17(3) of the Act.
5The Applicant must also 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; and
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.
HEARING
6The hearing was conducted in writing on the basis of the following materials contained in the Applicant’s file.
Application
7The Applicant is a community nurse who visits patients at home. On [date], 2016 he arrived at one of his patient’s apartments and was buzzed in through the front door by his patient’s mother. While he was waiting for the elevator another person entered the building and he was angry at the Applicant for not holding the door for him. The Applicant tried to explain to him that this was not permitted for security reasons. The stranger became even more irate with him and continued to berate him while they were in the elevator about not allowing him into the building. When the Applicant arrived at his patient’s floor and exited the elevator, the stranger followed him out and kicked him. The stranger continued to assault him by punching him in the head which caused him to have temporary memory loss and confusion. The Applicant describes how immediately after the assault he did not know where he was and had to knock on the door of one of the residents to ask where he was. Shortly thereafter his patient’s mother came looking for him and found him sitting in the other residents’ apartment. She called EMS services and the Applicant was taken to the Emergency Room. With respect to his injuries, the Applicant states that he experienced difficulties sleeping and nightmares following the incident. For approximately 2 weeks following the incident he could not go out as he had facial injuries. His self-esteem was adversely affected because of his appearance after the incident. He called in sick for 5 days following the incident because of the pain in his left hand. The Applicant underwent physiotherapy and massage therapy following the incident and was referred for a psychological assessment as he was having anxiety about taking elevators, particularly when there was just one other person with him in the elevator. He was prescribed anti-anxiety medication. The Applicant’s shoulder was also injured and he continues to experience some pain in his shoulder. He has scars on his face. The Applicant is unable to return to the building where he was assaulted and there are several patients in that building whom he would otherwise be expected to treat. He continues to have flashbacks of the incident, is easily agitated since the incident and is still upset when he thinks about it.
Applicant’s Supplementary Statement
8The Applicant provided a supplementary statement in which he confirmed that he continues to have pain in his left shoulder and to experience anxiety as a result of the incident. He is having difficulty sleeping and this is negatively impacting his work. The Applicant continues to have flashbacks of the incident whenever he has to work in the area. This affects his mood and self-confidence. The Applicant also continues to have nightmares and screams aloud in his sleep.
Police Information
9The Police questionnaire confirms that the Applicant was assaulted by a stranger who was angry that the Applicant was refusing to let him into the building and that the assault that ensued was completely unprovoked. The assault consisted in “being punched several times”. The Police were unable to identify a suspect.
Hospital Report
10The emergency room Report confirms that the Applicant stated he had been punched several times in the face and at first had difficulty remembering what had occurred. Eventually he was able to remember everything. The Applicant’s primary concern was with respect to the pain in his left shoulder. An X-ray of his shoulder showed a probable fracture of the greater tuberosity of the proximal humorous. Swelling was noted in his face and as well as a possible fracture of his facial bone.
Medical Report
11The Report confirms that the Applicant had a fracture in left shoulder, a hemorrhage in his left eye and a per orbital hemorrhage, abrasions on his face and nose, post-traumatic stress and post traumatic shoulder capsulitis. The Applicant was prescribed Tylenol #3s, physiotherapy and analgesics. The facial injuries healed but the shoulder injury and PTSD was still an issue as of the date of the report on [date], 2016.
Medical Report
12The Applicant was referred to this Doctor for opinion regarding the need for plastic surgery to repair the damage done to the facial bones under his left eye. The diagnosis is Exophthalmos and the Surgeon recommends that he be treated or his condition could become chronic.
Medical Report
13This Report diagnosed bursitis in the Applicant’s left shoulder and impingement as well as a fracture and minimal displacement. He was prescribed pain medication and physiotherapy. There is the possibility that the Applicant will need arthroscopic surgery on his shoulder.
Physiotherapy Report
14This Report notes a fracture of orbital nasal bones, tuberosity fracture, impingement and bursitis of shoulder and neck strain due to impact. His recommendations include cortisone injections, massage therapy sessions and physiotherapy sessions. The Physiotherapist recommends 8 to 12 weeks to full recovery if the Applicant participates in active physiotherapy.
Therapy Report
15[Psychatrist] confirms that the Applicant reported to her that he was assaulted at one of his patient’s buildings and that as a result he fractured his shoulder and nasal bone and had severe facial bruising. She saw him several weeks after the incident and he had recovered fairly well physically from his injuries but still had a sling over his left arm and a scar on his left eyebrow. The Psychiatrist opined that the psychological symptoms that the Applicant had following the incident justified a diagnosis of Post-Traumatic Stress Disorder including anxiety especially in elevators, panic attacks, flashbacks, fear of subsequent attack, fear of people who share the physical characteristics of his assailant, loss of self-confident, and hyper vigilance. His symptoms created barriers for him at work as he could no longer work at that building or with people who physically resemble his attacker. The Applicant had no prior mental health issues. The Psychiatrist prescribed sleep medication.
Employer’s Report
16This Employer confirmed that the Applicant works as a nurse on a “casual permanent basis”. The Applicant was off work due to the assault between [date], 2016 and [date], 2016 and provided pay information for the four weeks prior to the incident.
Employer’s Report
17This Report confirms that the Applicant was off work from [date] to [date], 2016 after which he was on modified duties but did not lose pay. This Employer indicates that the employee received income from WSIB during his absence, but could not provide details concerning how much he received.
Letters from WSIB
18On [date], 2016 the WSIB approved coverage for physiotherapy for his shoulder for 8-10 weeks. There is no mention in any of the correspondence provided by WSIB regarding Loss of Earnings benefits received.
Receipts for Expenses
19The Applicant provided several receipts to verify medical expenses including:
i. Receipts for medication - $ 0.98
ii. Shoulder stabilizer - $ 21.00
iii. Massage therapy - $120.00
iv. Cost of ambulance - $ 24.00
Total: $165.98
ANALYSIS AND DECISION
20The 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.
21For the following reasons the CICB grants the Application and finds, on a balance of probabilities, that the Applicant was a victim of a violent crime as contemplated by the Act.
22The Applicant’s evidence about the incident and what led to his injuries was clear and detailed. It was uncontradicted and consistent over time.
23The medical evidence, including the Hospital Report, the Medical Reports and Therapy Report confirming his injuries is consistent with what is described in the application and with an assault having occurred as described by the Applicant.
24The Applicant has also provided evidence from a Psychiatrist that he suffered symptoms of Post-Traumatic Stress Disorder for several months following the incident including difficulty sleeping, flashbacks, anxiety about going into elevators and visiting the building where he was assaulted, loss of self-esteem and hyper vigilance.
25The Police investigation confirmed that the Applicant was assaulted by the Alleged Offender in the course of his employment and was injured as a result.
26Furthermore, the Applicant was successful at claiming WSIB benefits which were paid to him as a result of his having been injured in the course of his employment. This is further evidence that the Applicant was in fact assaulted as relayed in his application.
27Based on the evidence provided by the Applicant as described above, the CICB finds that the Applicant was the victim of a physical assault at the hands of a stranger at one of his patient’s buildings on [date], 2016 in the course of his employment. As a result of this assault the Applicant suffered serious physical injuries including a fractured left shoulder, a fracture of his nose and facial bone beneath his left eye, scars to his face and ongoing bursitis in shoulder and suffers from Post-Traumatic Stress Disorder.
Amount of Compensation
28After finding the Applicant compensable, the CICB must consider section 17(2) and (3) of the Act. Pursuant to section 17(2) the CICB has considered whether the Applicant has refused reasonable cooperation with, or failed to report promptly the offence to a law enforcement agency. Having considered the evidence presented in the Application and the Police Report, the CICB accepts that the delay in making a report to the police was reasonable. The Applicant did not realize the severity of his injuries until sometime after the incident and therefore did not think it was worth reporting. Other than the delay which was explained, the Applicant appears to have cooperated fully in the police investigation. The CICB has also considered any benefit, compensation or indemnity paid or payable to the Applicant from any source other than social assistance pursuant to section 17(3). Consequently the Applicant’s claim for compensation shall not be affected.
29Having found that the Applicant was a victim of a violent crime and suffered severe physical and psychological injuries as a result, the CICB awards $8,000 for pain and suffering. The CICB takes into account:
The fact that the incident occurred in the course of the Applicant’s employment and has adversely affected his ability to do his job without fear and anxiety;
That the assault was completely unprovoked and at the hands of a complete stranger;
That the Applicant has ongoing and possibly permanent injury to his left shoulder and facial bones as a result of the incident; and
That the Applicant has ongoing and potentially permanent psychological injuries including anxiety, hyper vigilance, fear of elevators, fear of people with the same physical characteristics as the alleged offender.
30The CICB considered the Applicant’s claim or claims in respect to costs of prescription medication, massage therapy, the ambulance to the hospital on the night of the incident and the Applicant’s shoulder sling, for which receipts were provided. The CICB finds such costs to be both reasonable within the context of the Act and will therefore award $165.98 for such costs.
31The Applicant is seeking compensation for lost wages from [date], 2016 to [date], 2016 in the amount of approx. $780.00 for his loss of earnings as a nurse with [Employer] Health Care. The Employer’s Report received from [Employer] Health Care confirms that the Applicant was off work from [date], 2016 until [date], 2016. The Therapy Report by Dr. [Name] confirms that the Applicant was unable to work due to physical injuries but the time frame of his sick leave is not specified. The Medical Report from Dr. [Name], [Name] Orthopaedic & Arthritic Centre confirms the Applicant was unable to work for a period of time due to acute injury but dates unknown. The Physiotherapy Report from [Name] and Medical Report from Dr. [Name] confirm that the Applicant was off work from [date], 2016 to [date], 2016 due to physical injuries. The Applicant has therefore incurred a net loss of $320.68. 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 $150.00 for income loss.
32The CICB authorizes up to $1,200.00 (exclusive of any applicable taxes) 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 the Applicant’s place of employment or insurance benefits. Therapy sessions must 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 may be made directly to the treatment provider on a monthly basis, upon submission of an invoice and the required verification from the Applicant. The CICB may also consider therapy expenses that were incurred between the times that the Applicant submitted his final set of documents to the CICB and the receipt of this Order. If there are such expenses, the CICB will deduct these from the pre-authorized $1,200.00 amount described above.
AWARD
33The CICB orders payment as follows:
Subsection 7(1) (a) Expenses $ 165.98
Subsection 7(1) (a) Future Pre-Authorized Expense (therapy) $1,200.00
Subsection 7(1) (b) Income Loss $ 150.00
Subsection 7(1) (d) Pain and Suffering $8,000.00
TOTAL AWARD (AND COSTS) $9,515.98
Less: Preauthorized treatment costs $1,200.00
TOTAL CURRENT AWARD $8,315.98
PAYMENT
34THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $8,315.98
DATED at Toronto this 22nd day of September, 2017.
Anne-Marie Langan, Member