CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Anne-Marie Langan
Indexed as: (Re) 1703-00994
ORDER
INTRODUCTION
1The Applicant, a correctional officer, 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 for lost income as a result of a physical assault that occurred on [date], 2016. During the course of her employment she was assaulted by an inmate, the Offender and sustained physical/psychological injuries. The Offender was charged and found guilty of assaulting a peace officer.
DECISION
2The CICB approves the claim and awards the Applicant the sum of $5,000.00 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 her injuries are the result of the crime pursuant to subsection 5(a) of the Act.
4The Applicant must provide reliable evidence to support her claims for income or pecuniary loss incurred as a result of her total or partial disability affecting her 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: In her Application the Applicant explains that she is a correctional officer and that one of the inmates, the Offender, punched her in the face when she was trying to take him from his cell to an escort who would be taking the Offender to the hospital on an involuntary committal (Form 1). The Offender was known by the correctional facility staff as being volatile and aggressive towards the staff and had taken advantage of the fact that his handcuffs had been removed to allow him to get dressed, to assault the Applicant. As a result of the assault she suffered a broken nose and a concussion. The Applicant had to take extra time off work to prepare herself emotionally to return to working with the inmates. The Applicant’s husband now has a lot of anxiety about her safety at work and wants her to change careers. The Applicant admits that at times she is anxious and hyper vigilant at work due to the assault.
b. Police Reports: The Police Incident Report confirms the incident as described in the Application and the injuries sustained by the Applicant as a result of the assault.
c. [Name] Hospital Report: The Hospital provided the clinical notes and test results from the day of the incident when the Applicant attended the Hospital for treatment. An X-ray revealed that she had a broken nose. The Applicant reported her level of pain to be 6/10.
d. Medical Report of Dr. [name]: The Medical Report from Dr. [Name] confirms that the Applicant suffered both physical (broken nose and concussion symptoms) and psychological injuries as a result of the incident and was referred for psychotherapy for treatment of the anxiety she was experiencing as a result of the incident. She was off work from the night of the incident until [date], 2017.
e. Medical Report of Dr. [Name]: Dr. [Name] is a Laryngologist who saw the Applicant in February 2017 for a consultation. He confirms the above noted injuries and adds that the Applicant may have a permanent change to the external appearance of her nose as a result of the assault.
ANALYSIS AND DECISION
8In this case, there is no question that the Applicant was the victim of a crime of violence within the meaning of section 5(a) of the Act and that she suffered resulting injuries. The remaining issue to be decided is whether and what amount of compensation should be made to the Applicant in respect of her claim for a pain and suffering award.
9In arriving at a decision in this case, the CICB has taken into account the fact that the Applicant was assaulted while simply trying to perform her duties as a correctional officer. The injuries she suffered, including a broken nose and concussion, were painful and have resulted in permanent damage to the appearance of the Applicant’s nose. Furthermore the Applicant has suffered some psychological trauma from the incident and had difficulty returning to her duties as a result of ongoing anxiety. The CICB finds that compensation for pain and suffering is appropriate and warranted in this case. Having considered the circumstances of the incident and the nature of the resulting injury, the CICB finds an award of $5,000.00 to be an appropriate award of compensation for pain and suffering.
10Based on the information provided by WSIB, 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
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 23rd day of November,2017
Anne-Marie Langan, Member