CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Anne-Marie Langan
Indexed as: (Re) 1609-04753
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 reimbursement for medical expenses, compensation for pain and suffering and compensation for lost income as a result of a physical assault by the Offender, a patient in the hospital where she works, that occurred on [date], 2014 where she sustained physical/psychological injuries. The incidents were reported to the Police and resulted in the Offender being charged and convicted with assault for which he was sentenced to 7 days imprisonment and 12 months of probation.
DECISION
2The CICB approves the claim and awards the Applicant $5,310.00 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.
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 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 provide reliable evidence to support her claims for:
a. expenses actually and reasonably incurred as a result of her injury pursuant to subsection 7(1)(a) of the Act
b. 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.
HEARING
6The hearing was conducted in writing on the basis of the materials contained in the Applicant’s file.
DOCUMENTARY EVIDENCE
7The Police Incident Report explains that the Offender attended at the emergency room where the Applicant works as a nurse for medical treatment. The Offender began to wander around the emergency ward and the Applicant tried to escort him back to his room at which point he sprinted in the opposite direction, tripped and fell. He sprung up and punched the Applicant in the head with his fist. The Offender also pushed the applicant into one of the rooms causing her to bang into a table and fall to the ground. Following the assault, the Applicant reported that she was experiencing pain in her forehead, rib cage and left arm. Following the incident, the Offender was arrested and placed on a Form 1. The probation order mentions that the Offender has “mental health issues”.
8In her Application, the Applicant notes that following the assault she suffered from PTSD, Major Depressive Disorder, was fearful of leaving her home and became isolated from family and friends as a result. The assault also affected her ability to work and she was off work from [date], 2016 to [date], 2017. When she returned to work she was on modified duties and could not return to work in the emergency room. She became hyper vigilant of her children. The Applicant further describes how she injured her hip during the incident and has since had limitations on her mobility and difficulties with activities of daily living.
9A letter was provided by the Applicant’s Therapist confirming that she is unable to return to work in the ER or in the mental health unit of the Hospital as she gets “triggered” due to the assault. A Hospital report was also provided which confirms that the Applicant was treated in the ER of her Hospital following the assault.
10The Applicant has provided receipts confirming that she incurred expenses in seeking counselling for her symptoms of PTSD and depression following the assault however these costs were reimbursed to her by WSIB. She also provided confirmation from WSIB that they paid her a total of $92,199.66 in Loss of Earnings. The WSIB case manager informed the CICB that the Applicant did not receive any Non-Economic Loss benefits from WSIB.
11The Applicant provided receipts for chiropractic treatment she received relating to the injuries she incurred as a result of the assault which totalled $310.00. The Applicant is also asking to be reimbursed for mindfulness training/yoga in the amount of $1,100.00 but no receipts were provided in support of this expense.
ANALYSIS AND DECISION
12The CICB accepts the Offender’s conviction of assault as conclusive evidence that the Applicant is a victim of a violent crime.
13With respect to the injuries sustained, based on the Police Report and the Hospital Report which corroborate that the Applicant complained of soreness in her forehead, ribs and left arm following the incident, the CICB accepts that the Applicant suffered physical injuries as a result of the assault. The CICB further accepts the Applicant’s evidence with respect damage done to her hip by her falling due to being pushed by the Offender, for which she had to receive chiropractic treatment. The CICB further accepts the Therapist's Report confirming that the applicant was unable to work from [date] to [date] as a result of the assault and, as a result of the applicant’s PTSD symptoms, she will likely remain unable to work in the emergency or mental health department for the foreseeable future.
14Based on its assessment of the Applicant’s injuries, and having considered that the assault was completely random and unprovoked and took place at the Applicant’s place of employment where she ought to have been safe, the CICB awards the Applicant $5,000.00 in damages for pain and suffering.
15The CICB considered the Applicant’s claim or claims in respect to reimbursement for the cost of chiropractic treatment, for which receipts were provided. The CICB finds such costs to be both reasonable and within the context of the Act and will therefore award $310.00 for such costs.
16The CICB also considered the Applicant’s claim for reimbursement of yoga and mindfulness training but since the Applicant did not provide any documentation to support this claim in the form of medical reports recommending this treatment and confirming that they are related to her injuries from the incident, and has not provided receipts to substantiate this expense, this claim is denied.
17Based 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.
18Based 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 times that the applicant submitted her 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.
AWARD
19The CICB orders payment as follows:
Subsection 7(1) (a) Expenses- chiropractic treatment $310.00
Subsection 7(1) (a) Future Pre-Authorized Expense $2,400.00
Subsection 7(1) (d) Pain and Suffering $5,000.00
TOTAL AWARD $7,710.00
Less: Preauthorized treatment costs -$2,400.00
TOTAL CURRENT AWARD $5,310.00
PAYMENT
20THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $5,310.00
DATED at Toronto this 20th day of December, 2017.
Anne-Marie Langan, Member