(Re) 1607-04094, 2017 ONCICB 69

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Jo-Anne Hughes
Date: March 20, 2017
Indexed as: (Re) 1607-04094

ORDER

Introduction

1In this case, the Applicant claimed that while working as a residential care counsellor, she was assaulted by a group home resident (the Offender).

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 her [date] 2016 submission to the CICB, the Applicant wrote that the Offender was upset and felt she wasn’t paying enough attention to him so he responded by driving his motorized wheelchair against her right leg for about 30 seconds. When he backed off, the Applicant got away, but her foot was injured so she called for help.

4In [date] 2016, the Applicant received a letter of apology from the Offender who took “full responsibility” for his actions and asked for her forgiveness.

Police Report

5The CICB received reports from the Police Service in support of the Applicant’s claim. Police noted that the Offender is a resident in a group home and he suffers from Cerebral Palsy, Anxiety and Developmental Delays. On the date of the incident, the Offender was very agitated and when the Applicant was standing outside dealing with the parent of another resident on the phone, the Applicant began speaking loudly and swearing at her. When the Applicant came back inside, the Offender backed up his motorized chair and pinned her leg against a door or door frame. In response, the Applicant yelled at the Offender three times to back off her leg. The Applicant immediately called her manager to report about the incident. Two hours later, the Applicant was in the [Name] Hospital with an injured right foot. X-rays were being taken of the Applicant’s foot and she told police that she feared the Offender and that he might hurt other workers at the group home. A week later, the Offender was charged with assault with a weapon for running his chair into the Applicant.

6Police reported that the Offender pled guilty and as a result, he received twelve months of probation.

Injuries

7As a result of this incident, the Applicant had a broken bone in her right foot and a bruised left hand. She was treated with ultrasound, hot + cold packs and massage. Also, she had stretching and strengthening exercises.

8The Applicant wrote that as a result of this incident, she was unable to drive for months because of the boot-cast on her right leg. As a result, she had difficulty being able to see her family (who live 90 minutes away) and she was frustrated that she had to fight to keep her job with lots of tears and frustration. She had to rely on others to get to her appointments and she was off work for several months receiving minimal income which caused her to have more stress.

9The CICB received a letter, dated [date] 2017, from the Applicant giving an update on her condition. The Applicant noted that as a result of this incident, she has a cyst on her left hand/wrist and now she has developed another cyst on her right hand. She has a permanent bump on her right foot and she found that she was unable to bear weight on it for long periods of time.

10The Applicant wrote that her job is physical and as a result of her injuries, she may not be able to continue working at her job in the group home. Also, she had some mental and physical ups and downs which have added stress to her life.

Medical Reports

11The CICB received reports from the Hospital in support of the Applicant’s claim. Initial inspection of the Applicant’s foot did not result in the finding of a fracture. A week and a half later, an x-ray revealed findings consistent with the likely fracture of the navicular bone in the right foot. On [date], 2016 the Applicant was prescribed a splint for the pain in her left wrist and hand.

12The CICB received a Medical Report from Dr.[Name] which noted the Applicant was suffering from a fractured bone in her foot and pain in her left wrist. She was also advised to stay off work until [date].

13The CICB received a copy of the Applicant’s WSIB report which showed that she was being covered for benefits (Loss of Income and Medical Expenses) related to the injuries to her right foot and left hand.

14The CICB received a Report from a Physiotherapist who saw the Applicant for treatments related to the injuries to her right foot and left arm. The Physiotherapist reported that recovery prognosis for both injuries was good and the Applicant self-discharged from physiotherapy when she returned to work in [date] 2016.

Expenses

15The Applicant submitted an invoice for $125.00 for an Air Cast which appears to have been submitted for consideration by the WSIB.

Analysis and Decision

16Section 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.

17In 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 attacked and pinned to a door frame with a motorized wheelchair by the enraged Offender. As a result of this incident, the Applicant received a broken bone in her right foot and soft tissue injuries to her left hand. As a result, the Applicant was off work for three months, when she received income replacement, medical and travel expenses from the WSIB. Also, the Applicant was in pain, she had to wear a leg/foot cast for several weeks, she was unable to drive and her variable and reduced income was causing her to have extra stress for the three months that she was off work. Ongoing, the Applicant claims that she is unable to bear weight on her right foot for significant periods of time. However, the CICB has not received a medical report to support that claim, or that the cysts on her hands are related to this incident.

18The Applicant’s claim was supported with reports from Police, three Hospitals, a Doctor and a Physiotherapist. Considering this evidence and the submissions by the Applicant, the CICB assesses this award at $4,000.00.

19In this case, the CICB finds that all of the expense claims related to this incident, including Loss of Income, Medical and Travel expenses have been covered by the WSIB, so there are no expense claims for the CICB to consider.

Award

20The CICB orders payment as follows:

Section 7(1)(d) Pain and Suffering $4,000.00

TOTAL AWARD $4,000.00

21The 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

22THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $4,000.00