CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Kevin Cleghorn
Indexed as: (Re) 1705-01365
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 a pain and suffering award, loss of wages/income, medical expenses, dental expenses and travel to treatment expenses as a result of a physical assault that occurred on [date], 2016 where he sustained physical and emotional injuries. Counsel for the Applicant, in a letter to CICB, has requested that consideration also be given to awarding future counselling expenses for the Applicant notwithstanding that no request was made in the Application itself. The incident was reported to the Police and resulted in charges against the Offender of assault causing bodily harm. The Offender pled guilty to assault causing bodily harm.
DECISION
2The CICB approves the claim and awards the Applicant the sum of $6,000.00 for his pain and suffering, $136.19 for travel to treatment expenses, $2,400.00 for future counselling expenses and $4,000.00 for future dental expenses 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.
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. all the relevant circumstances, including whether the Applicant’s behaviour may have directly or indirectly contributed to the injuries pursuant to subsection 17(1) of the Act.
b. 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.
c. 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
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: Additional Expenses Chart; Taxi receipts dated [date], 2016; GO Train receipts dated [date] 2016 and [date] 2016; [Name] General Hospital records; [Name] Dental Surgery records, notes and x-rays; Assessment of the Cost of Future Orthodontic Work from [Orthodontist] dated [date], 2016; Victim Impact Statement dated [date], 2016; Statement of Dental Work from [Name] Dental and x-rays; Information of the [Name] Regional Police Service; Police Records from the [Name] Regional Police Service; Recognizance of Bail; Adult Probation Order for [Offender]; Fine Order/Victim Surcharge for [Offender]; Order to a Person to Have Bodily Substances Taken for Forensic DNA Analysis; Order Authorizing the Taking of Bodily Substances for Forensic DNA Analysis; Prohibition Order Imposed at Sentencing; and [Name] Regional Police General Occurrence Hardcopy.
ANALYSIS AND DECISION
7For the following reasons the CICB grants the Application.
8The applicant was visiting [City] for his friend’s birthday celebration on [date], 2016. He attended at a bar with his friends for two hours. Upon leaving the bar, he met up with the Offender on the street. The Offender was a stranger to the Applicant. The Offender, without warning, punched the Applicant in the face and left the scene.
9The Applicant was in considerable pain on the left side of his face. He received emergency treatment at the [Name] General Hospital. The Applicant sat in the hospital for twelve hours awaiting surgery for two fractures to his jaw. After the surgery, his jaw was wired shut for approximately two months. He was on a liquid diet during that period and lost 25-30 pounds. He had trouble sleeping, was fatigued and in constant pain after his surgery. The Applicant was discouraged from speaking and had serious limitations placed on his ability to seek employment. He had damage done to his teeth and may require future dental work.
10The Applicant advises that his activities were restricted for several weeks after the incident. He experienced significant trauma, high anxiety and flashbacks, particularly in the days immediately following the incident. He is reluctant to socialize with others. He is fearful of encountering people on the street and does not trust other people anymore. The Applicant tends to avoid situations that involve alcohol or being out late at night.
11I accept the Applicant’s version of the events as set out in his Application because all of the information provided is corroborated by the Police information and the Hospital records. The [Name] Police Service confirmed that this was a random, unprovoked assault on the Applicant. There is no indication that the Applicant was not co-operative with the police in the course of the investigation into this matter.
12The Offender was charged with assault causing bodily harm. The Offender was convicted on that charge after he pled guilty.
13CICB finds the Applicant to be a victim within the meaning of subsection 5(a) of the Act as a result of the actions of the Offender. I accept the Applicant’s description of the nature of his injuries. The extent of the injuries and cause of the injuries as outlined in the Application are consistent with the Hospital records, Dental and Medical Reports.
14Although the Applicant claimed wage loss, there is no documentation in the file to substantiate or quantify any loss of earnings. As such, no compensation for any wage loss can be awarded in this instance.
15The Applicant did provide receipts for expenses for travel to treatment for medical and/or dental appointments between [City] and [City]. The amount claimed and verified is a total of $136.19. He will receive compensation for that amount.
16The Applicant has claimed the amount of $1,582.02 for the Boost liquid drink which he consumed while he had his jaw wired shut. This claim is problematic in that he seeks the cost of his food and nutrition during the period after his surgery. He would have incurred costs for food whether he was injured or not. It is not explained why the cost of the Boost liquid drink should be paid for from public funds when he would have borne the expense for a diet of solid food during the same time frame. As such, no award for the cost of the Boost liquid drink shall be made in this regard.
17He has also provided an estimate for future dental treatment (essentially orthodontic work) in the amount of $8,200.00. The Orthodontist has provided that estimate for treatment without explaining the rationale or necessity for it. A statement from [Name] Dental confirms that the Applicant has incurred dental costs to date of $1,582.02. There is no indication whether the future orthodontic costs relate to cosmetic and/or functional considerations. There is also no indication of whether some of the rationale for the future orthodontic costs pertains to issues with the Applicant’s teeth which existed prior the incident of [date], 2016. It is clear, however, that there was significant dental and oral damage done to the Applicant arising out of a crime of violence. On that basis, in the exercise of my discretion, I am prepared to award a contribution to future dental costs, including orthodontic work, in the amount of $4,000.00 to be utilized within 36 months. This treatment can only be accessed when dental treatments are not covered by other sources, such as the Applicant’s place of employment or insurance benefits. 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.
18The Applicant has requested therapy to deal with the emotional fall-out of this incident. It is a reasonable and understandable request when considering the context of this incident.
19Based on the Applicant’s stated intention to enter into therapy in the near future, the CICB authorizes up to $2,400.00 (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 time 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 $2,400.00 amount described above.
20The CICB has considered the following factors in coming to its decision on the amount of the pain and suffering award:
The criminal actions of the Offender caused the injuries sustained;
The nature and extent of the injuries to the Applicant, which include significant pain and discomfort arising from his fractured jaw and living with a wired jaw for two months thereafter. He had discomfort and pain for several weeks and restrictions on his regular activities, including an inability to seek employment. He had nightmares, flashbacks and fearfulness, most of which continues to this day;
The incident has had a dramatic effect on his life and future therapy/procedures are necessary to deal with the over-all impact of the event; and,
The award is made from public funds.
AWARD
21The CICB orders payment as follows:
Subsection 7(1)(a) Travel for Treatment Expenses $136.19
Subsection 7(1)(a) Future Pre-Authorized Expense (counselling) $2,400.00
Subsection 7(1)(a) Future Pre-Authorized Expense $4,000.00 (dental/orthodontic expense)
Subsection 7(1)(d) Pain and Suffering $6,000.00
TOTAL AWARD (AND COSTS) $12,536.19
Less: Preauthorized treatment costs $6,400.00
TOTAL CURRENT AWARD $6,136.19
PAYMENT
22THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $6,136.19
DATED at Toronto, Ontario this 18th day of December, 2017.
Kevin Cleghorn, Member