CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Jo-Anne Hughes
Indexed as: (Re) 1607-04114
ORDER
Introduction
1In this case, the Applicant claimed that while working security at a bar, he was stabbed while trying to break-up a fight at a bar.
2In this case, the CICB is required to determine whether a crime of violence has occurred as per section 5(a) of the Act, what injury, if any, arose from it, and the relevant circumstances affecting whether or not compensation should be awarded and if so, the amount.
Evidence
Incident
3In his [date] 2015 submission to the CICB, the Applicant wrote that while he was working for security at the bar, he went to break-up a fight and as a result, he was stabbed in the arm.
Police Report
4The CICB received several reports from the police in support of the Applicant’s claim. At the bar, the Offender was having disputes with two other patrons so security escorted the Offender to the front door and the other two patrons to the back door of the bar. Later, the Offender was fighting with one of those men in the parking lot. While the Applicant and another security staff were trying to break-up the fight, the Applicant received a “large stab wound to his left forearm”.
5As a result of their investigation, Police charged the Offender with four offences – one of which was assault causing bodily harm listing the Applicant as the victim. On [date], 2015, the Offender was convicted on the charge against the Applicant and he was sentenced to 90 days of intermittent jail time plus three years of probation with a no-contact order for the two victims involved in this case. Also, his DNA was registered in the national databank and he was prohibited from possessing weapons for ten years.
Injuries
6The Applicant did not describe his injuries in his submission to the CICB. Instead, he included a copy of his Victim Impact Statement to the court. In that [date] 2015 Victim Impact Statement, the Applicant wrote that since he was trying to help the Offender, whenever he meets ‘resistance’ from anyone, it reminds him of this incident which had a significant impact on his life. The Applicant wrote that he was unable to work at this security job and at his regular job for two months as a result of this incident. His family had to help dress, bathe and feed him. The Applicant wrote that he has significant nerve damage in his left hand which now prevents him from using tools properly and to pursue a career in HVAC mechanics. In the year before this incident, the Applicant was developing his career in football but that was all put on hold because of this incident. He feared re-injuring his arm which led him to stop playing football.
7The Applicant also wrote that this incident severed a nerve in his upper-left forearm which controlled the fingers on his left hand. He spent most of the night in Hospital and then doctors operated on his arm a week later to re-attach the nerve. The Applicant travelled several times to the hospital during a 3-4 month period and he had physiotherapy at three different locations over a period of two years. Doctors told the Applicant that they want to do another surgery (a tendon transfer) and this will require another two months to recover plus more physiotherapy. His prognosis is unclear and at this point he does not have full motion in his left hand. Also, he suffers from stress pain in the surrounding muscles which try to compensate for his loss of function/movement.
8The Applicant wrote that as a result of this incident, he lost the promise of two potential careers – working as a HVAC mechanic and being a CFL football player. He is facing a $10,000 physiotherapy bill and he has had numerous trips to daily physiotherapy and time off work to attend court. Finally, he took several vacation days while recovering from surgery and attending court.
Medical Reports
9The Board received several Medical Reports in support of the Applicant’s claim. On the night of the incident, the Applicant suffered from a significant cut to his left forearm and loss of movement in his left hand. Doctors operated on his arm four days later at the hospital. Dr. [Name] sent a report to the CICB which noted that as of [date] 2013, the Applicant had no significant improvement since his initial surgery.
10One year later, the Applicant was seen at the Hand Clinic where doctors reported that he has been unable to extend any of the digits on his left hand since the incident. Dr. [Name] presented the Applicant with his idea of “tendon transfers” which he proposed to be scheduled in a [date] 2014 surgical procedure.
11The CICB received a report from [Name], a Physiotherapist, who saw the Applicant once or twice a week between [date] 2013 and [date] 2015. The Physiotherapist noted that the Applicant’s condition did not improve and in his experience, the Applicant would likely benefit from a second surgery followed by more physiotherapy. Also, the Applicant had accumulated $10,650.00 in unpaid physiotherapy bills.
Expenses
12In his submission to the CICB, the Applicant wrote that his outstanding physiotherapy bill was $10,650 and that the WSIB may not cover all of his physiotherapy bills or on-going physiotherapy bills.
13In [date] 2017, the WSIB confirmed that they have not received or processed a physiotherapy expense in the amount of $10,650.00. Also, the WSIB confirmed that they would not be considering the Applicant for a NEL award.
Analysis and Decision
14Section 11 of the Act states that proof of conviction shall be taken as conclusive evidence that the offence has been committed. The CICB finds that the Applicant is a victim within the meaning of section 5(a) of the Act as a result of a single incident of assault causing bodily harm.
15In assessing compensation for pain and suffering, the CICB has considered the nature of this incident and how it affected the Applicant. In this case, the then [age] year old Applicant was stabbed in the arm while he was trying to break-up a fight in a parking lot outside a bar. As a result of this incident, the Applicant had a severed nerve in his left arm which required surgery and physiotherapy for treatment. The Applicant wrote that he was reminded of this incident whenever he encounters a similar situation and he had at least two years of disfunction in his left hand. Also, he claimed that he was unable to work for two months and he had almost two years of physiotherapy on his arm and hand. Due to the lack of a medical report subsequent to the proposed “tendon replacement” surgery, the CICB will consider this to be a temporary impairment of the Applicant’s left hand.
16The Applicant’s claim was supported with Reports from Police, the Courts, three Hospitals, two Doctors and a Physiotherapist. Considering this evidence and the submissions by the Applicant, the CICB assesses this award at $9,000.00.
17With respect to the Applicant’s claim for over $10,000.00 in physiotherapy expenses, the CICB generally requires original receipts and/or other supporting documentation for any expenses that are claimed, both to verify the amounts claimed and to confirm that such costs were not covered by other sources, such as private insurance. In the absence of such evidence (specifically invoices) and having found no compelling reason to deviate from its usual practice in this instance, the CICB denies the expense claims for physiotherapy.
Award
18The CICB orders payment as follows:
Section 7(1)(d) pain and suffering $9,000.00
TOTAL AWARD $9,000.00
19The CICB recognizes that no amount of money can adequately compensate victims for the injustice they have suffered but also finds the amount of the award to be reasonable within the context of the Act.
Payment
20THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $9,000.00
DATED at Toronto this 13^th^ day of March, 2017.
____________________________
Jo-Anne Hughes, Member