CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Anne-Marie Langan Date: November 23, 2017 Indexed as: (Re) 1702-00475
ORDER
INTRODUCTION
1The Applicant, a police officer with [Name] Police Service, 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 and reimbursement for lost wages as a result of an assault by the Alleged Offender that occurred during an arrest on [date], 2016 where he sustained physical injuries. No charges were laid against the Alleged Offender with respect to the Applicant.
DECISION
2The CICB approves the claim and awards $2,000.00 for the reasons set out below.
ISSUES
3The Applicant must prove, on a balance of probabilities, that his injuries are the result of lawfully arresting or attempting to arrest an offender or suspected offender of an offence against a person other than the Applicant or his dependent or against such person's property, or assisting a peace officer in executing his/her law enforcement duties.
4The Applicant must provide reliable evidence to support his claims for 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.
5If 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 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.
HEARING
6The hearing was conducted in writing on the basis of the materials contained in the Applicant's file.
Documentary Evidence
7The CICB received the following documents with respect to the claim:
a. The Application: The Applicant and another officer were attempting to arrest the Alleged Offender as he was being aggressive and belligerent with other customers at a mall. The Alleged Offender resisted arrest and pushed the Applicant to the ground, causing him to injure his left hand. The Applicant attended at the hospital for treatment. He experienced pain in his left hand for four weeks and had difficulty sleeping. He was limited as to what he could do at work due to his injury and lost income. The Applicant is waiting for the results of an MRI which will determine whether there is permanent damage to his left hand.
b. Police Report: The Police Report explains that the Alleged Offender was making a commotion in the food court at the mall and would not stop when the security officers asked him to, so they called the police for assistance. The Alleged Offender pushed the other officer down and ran, at which time both officers chased him. A scuffle between the Alleged Offender and both police officers occurred when they caught up with him, at which time they were able to subdue him by using pepper spray. The Police Report does not mention that the Applicant was injured the arrest. The Alleged Offender was charged with several offences relating to his assault of the other police officer and with breach of probation for having a weapon on his person. However, no charges were laid against the Alleged Offender with respect to the Applicant.
c. Hospital Report: The Applicant attended at [Name] General Hospital the following day ([date], 2016) and told the triage nurse that he had hurt his hand at work the day prior. He complained of pain in his left hand and middle knuckle. The Applicant was diagnosed with a contusion to his left hand and given a splint and analgesics. The emergency doctor completed a WSIB medical report in which he indicated that the Applicant could return to modified duties on [date], 2016 after which he should be restricted from lifting, pushing, pulling, operation a motor vehicle, climbing, and using his upper extremities for 8-14 days.
d. WSIB documents: The Applicant made a claim to WSIB relating to this injury and was compensated for the one day of work he missed as a result of his injury.
ANALYSIS AND DECISION
8The CICB is satisfied on a balance of probabilities based on the documentation provided by the Applicant, as described above, that the Applicant suffered bodily harm as a result of being assaulted by the Alleged Offender during an arrest on [date], 2016.
9The CICB finds that the Applicant suffered his injuries while lawfully arresting the Alleged Offender for an offence against another person. Accordingly, he is found to be a victim within the meaning of section 5(b) of the Act.
10In assessing compensation, the CICB considered the nature of the incident, the physical injury sustained, the recuperation period and the physical issues that persist as well as the negative impact that the injury had upon his ability to fully perform his duties at work and personal life. Having considered these factors, the CICB awards $2,000.00 for pain and suffering.
11The CICB has considered the Applicant's claim for lost income for the day he missed of work (from [date], 2016 to [date],2016). Based on the evidence in the claim brief, 85% of the Applicant's net earnings were covered through a non-taxable WSIB 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 15% difference is offset by the cost savings related to the above factors. The Applicant's wage loss claim is thereby denied.
AWARD
12The CICB orders payment as follows:
Subsection 7(1)(d) Pain and Suffering $2,000.00
TOTAL AWARD (AND COSTS) $2,000.00
PAYMENT
13THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $2,000.00
DATED at Toronto this 23rd day of November, 2017
_____________________________
Anne-Marie Langan, Member