CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Anne-Marie Langan
Indexed as: (Re) 1606-03705
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, R.S.O. 1990, c. C.24, as amended (the “Act”). The Applicant is seeking reimbursement for medical and treatment expenses, including reimbursement for expenses relating to travelling to and from treatment, compensation for lost wages and damages for pain and suffering as a result of an assault that occurred on [date], 2016 where he alleged to have sustained physical and psychological injuries. The incidents were reported to the Police and resulted in a charge and conviction for assault for which the Offender was sentenced to 12 months’ probation.
DECISION
2The CICB approves the claim for damages for pain and suffering for the reasons set out below.
ISSUES
3A conviction may be taken as conclusive evidence that an offence has been committed pursuant to section 11 of the Act. Given that there was a conviction in this case, the Applicant is required to prove, on a balance of probabilities, that his injuries are the result of 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; 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
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:
a. Application: According to the Applicant the incident took a place around [location] in [City], Ontario at 07:30pm on [date], 2016. The Applicant was driving to karate classes with his son and changed lanes. Another car signaled, turned to the right and stopped in front of the Applicant’s vehicle. The Offender got out of his vehicle and started to punch the Applicant’s car. The Applicant tried to talk to the Offender and to come to a peaceful resolution, but the Offender suddenly punched him in the face, causing him to fall. The Offender then kicked the Applicant two times in his ankle. A bystander called the Police. The Applicant notes that two days after the incident he could not stand the pain in my left ankle and sought medical attention at the [Hospital] Emergency Department where his ankle was put in a cast as there was a Weber B type fracture. The Applicant does not report any head injury or other injury as a result of the incident. The Applicant was supposed to go for a Drive Test for a new trucking position the day following the incident ([date], 2016) but was unable to due to his ankle injury. The Applicant was told not to exert himself for 3-4 weeks post injury to allow the healing to take place.
b. Court Documents/ Police Report: The Police Report states that the Offender was charged with assault after a “road rage incident” involving the Applicant on [date], 2016 during which the Applicant was punched twice, causing him to fall to the ground where he was kicked “numerous times”. The Police Officer noted that the Applicant had an injury to his ankle and bruising on his face following the incident. The Court documents confirm that the Offender was charged and convicted of assault contrary to s. 266 of the Criminal Code and received a sentence of 12 months’ probation. The probation order contains a provision prohibiting the Offender from communicating directly or indirectly with the Applicant.
c. Medical Report: Dr. [Name]’s report, dated [date], 2016, notes the ankle injury and that the Applicant had to attend his office three times as a result of the injury. Once to have cast put on and twice for cast removal.
d. Hospital Report from [Name] General: This Report confirms that the Applicant went to the emergency room on [date], 2016 complaining about his ankle. The clinical note from that day mentions that he had a bruise under his left eye and a swollen ankle. X-rays taken that day showed the presence of a fracture in the ankle requiring a cast. Later notes from a follow up appointment at the hospital orthopedics clinic mentions that it took until June for the fracture to heal at which time there was no more pain but was still some swelling. The Hospital records also include a reference to a lump on the Applicant’s elbow but it is not clear whether this injury is related to the incident described in the Application.
e. Income Tax Returns from 1999 and 2000: show total income from those years being $50,000 and $58,230.00. No recent income information was provided by the Applicant.
ANALYSIS AND DECISION
7Section 11 of the Act states that proof of conviction shall be taken as conclusive evidence that the offence has been committed. Having considered all of the documentary evidence in the claim file, the CICB finds the Applicant to be a victim of assault and therefore a victim within the meaning of section 5(a) of the Act. As a result of the assault, the Applicant suffered physical injuries including bruising to his face and a fractured ankle which took several weeks to heal. Furthermore, the Applicant missed a driver’s test for a new trucking job which ultimately resulted in his being ineligible for the position. This was verified in the prospective employer’s letter to the CICB. The CICB therefore awards the Applicant $5,000.00 in damages for pain and suffering.
8The 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. The Applicant did not reference any specific medical or treatment expenses incurred as a result of the incident or provide any receipts to verify those expenses. 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 treatment and other medical expenses.
9It is the CICB’s practice to only consider travel to treatment costs when an Applicant is required to travel more than 40 kilometers each way (80 kilometers round trip) outside of [his/her] city of residence for treatment. The CICB finds no compelling reason to deviate from that practice under the circumstances. Since the Applicant lives in [City] and received all of his treatment in [City], he was not required to travel more than 40 kilometers each way for his medical treatment and as a result these expenses are denied.
10With respect to the Applicant’s claim for income loss, the CICB notes that it generally requires supporting documentation (i.e. employer’s report, pay stubs or Income Tax records and/or medical confirmation of disability) in order to verify an applicant’s employment status and average net earnings at the time of the incident, to determine whether any income-replacements benefits were received during the period being claimed, and to confirm the period of disability. The Applicant provided two income tax returns from 1999 and 2000 which was 15 years prior to the incident in question. He did not provide us with any confirmation of what, if anything, he was earning at the time of the incident. Based on the information provided by the Applicant, it appears that he was not employed at the time of the incident but he was to attend a driving test following the incident in the hopes of securing employment as a trucker. Although the Applicant’s Doctor confirmed in his report that the Applicant was not able to work due to the accident and did not specify for how long, the absence of confirmation of the Applicant’s employment, amount of income and length of disability, and having found no compelling reasons to deviate from its usual practice of requiring supporting documentation. The CICB finds that the Applicant has failed to establish his claim for income loss and the claim in that regard is hereby denied.
AWARD
11The CICB orders payment as follows:
Subsection 7(1) (d) Pain and Suffering $5,000.00
TOTAL AWARD (AND COSTS) $5,000.00
PAYMENT
12THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $5,000.00
DATED at Toronto this 30th day of September, 2017
Anne-Marie Langan, Member