CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Louise Charette
Anne-Marie Langan
Indexed as: (Re) 1706-01900
SECTION 10 REVIEW
ORDER
Introduction
1This is a review of an Order by a single Member of the Criminal Injuries Compensation Board (CICB) made following a hearing held September 29, 2017 (the Original Order). The review is conducted in accordance with section 10(1) of the Compensation for Victims of Crime Act, RSO 1990, c.C.24, as amended (the Act).
Original Order
2Prior to making the Original Order, the CICB issued an interim award of $1,800.00 for therapy and $1,000.00 for physiotherapy. $1,400.00 of this amount was paid directly to the Applicant in accordance with section 14 of the Act. As of the September 29, 2017 hearing date the Applicant had not used the entire interim award or provided her receipts for therapy to the CICB.
3The Original Order found that the Applicant was a victim of a violent crime as defined in section 5 of the Act and awarded her $6,000.00 in compensation for pain and suffering. The Original Order stated:
In this case, the Applicant was assaulted by the Offender who punched her in the head several times. As a result, the Applicant had bruises all over her body, pain in her left leg and foot, increased fatigue and a broken dental filling. On an emotional level, the Applicant suffered from flashbacks, sleep disturbances and trust issues. She feared that her pre-existing Acquired Brain Injury (ABI) became worse. However, the Board has found no significant medical evidence to support the Applicant's claims of increase defects of her ABI, two alleged dog bites (and associated treatment) and an injury to her foot…. (emphasis added)
4The Original Order went on to award the Applicant $6,390.00 for future prolotherapy injections. The Applicant’s claims for ambulance fees, dental expenses, massage therapy, physiotherapy, foot care and future therapy were denied on the grounds that the Applicant had not provided sufficient supporting documentation to support these expenses.
5On [date], 2018, after the hearing before the Panel but before the Panel made its decision, the CICB made a further award of $2,000.00 toward her treatment expenses. The award was mischaracterized as a Variation Order made in accordance with section 25 of the Act. As it was intended to assist the Applicant in respect of expenses incurred prior receiving our written decision on the Review application it is properly considered a section 14 Interim Award. $1,000.00 of this award was issued to the Applicant directly, with the rest to be released once she provided the receipts.
Issue
6The issue before the Panel is whether the Original Order contains a serious error of law or an unreasonable exercise of discretion. CICB Rule 19.2 states:
An applicant may request a review of the decision of a single member on the grounds that the decision contains a serious error of law or an unreasonable exercise of discretion.
7The relevant portions of section 10 read as follows:
(1) Where an application is heard by a single member of the Board under section 9, the applicant or the Minister may, within fifteen days after service of the decision of the member, require a hearing and review by the Board and the Board shall fix a time and place for the hearing and shall at least ten days before the day fixed cause notice thereof to be served upon the parties to the proceeding.
(3) The hearing shall be conducted and the jurisdiction of the Board shall be exercised by at least two members of the Board and the member whose decision is being reviewed shall not sit on the review.
(4) After a hearing and review by the Board under this section, the Board shall make its order in accordance with this Act and its order supersedes the order of a single member made under section 9 that is the subject of the hearing and review.
8Generally, in a section 10 review the Panel will consider only the evidence that was available at the time of the Original Order. However, the Panel may consider new evidence if it meets the following criteria:
The evidence could not have been earlier obtained with reasonable diligence on the part on the applicant;
The evidence is such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; and
The evidence is apparently credible, although it need not be incontrovertible.
9The CICB finds that the additional information provided by the Applicant in support of this s.10 review meets the criteria for admissibility in that it was not available to the Applicant at the time of the original hearing. The Applicant explained that due to her brain injury, she had great difficulty in gathering the evidence for the first hearing, particularly as she was unrepresented at the time and did not really understand what the CICB required of her with respect to written documentation. The Applicant also has difficulty advocating for herself, as is described in the letters by her therapists. At the s.10 review hearing she was represented by Counsel, who had assisted in providing the up to date medical and expense information. She further explained that having the hearing over the phone was not the best method for her, given her difficulties in communicating orally due to her brain injury, as confirmed by her therapists. She believes she was not reasonably able to participate. In order to give the Applicant a fair opportunity to present her case, the CICB will permit the additional evidence to be filed. While not all of the new medical reports outline issues that are relevant to this hearing, for example those that relate to the Applicant’s Celiac and Crohn’s disease, the CICB accepts that some are highly relevant to her claim and specifically relate to injuries resulting from the crime of violence. Further, the CICB is satisfied that the new information is credible as it was obtained from the relevant specialists who are treating the applicant.
Evidence at September 27, 2017 Hearing
10In her Application, the Applicant wrote that on [date], 2017 she attended the Offender’s home to celebrate his birthday. They had known each other for some time and she had been to his home many times before. The Offender had never been violent towards the Applicant in the past nor had he ever engaged in any threatening conduct.
11At one point during the evening, the Offender had to go downstairs to take some medication and when he returned he told the Applicant “I’m going to kill you”. He then came towards her and began punching her. She ran to the window, opened it and called out for help. He then pulled her away from the window and, as a result, she fell down. The Offender continued to punch her and she attempted to defend herself by biting his arms. The Offender’s dog jumped on top of her and started biting her left leg. She was able to get away and run downstairs to the front door, however the Offender then closed the door and attempted to drag her back inside the house. The Police eventually had to break down the door to free her.
12The evidence from the Police was that when they arrived, they found blood spots in the bedroom, on the stairs, on the front door and wall near the front door. The Police report also noted injuries to the applicant’s eyes, swelling on both sides of her face, red marks around her neck, blood in her mouth and swollen upper lip, marks and scrapes on her upper back. The Applicant complained that she had a very bad headache and was concerned about this due to her pre-existing ABI. On [date], 2017, the Offender was convicted of forcible confinement and uttering threats and he received twelve months of probation including intermittent custody and a no contact condition with respect to the Applicant.
13With respect to her injuries, the Applicant noted that she had bruises on her arms, head, abdomen, chest, legs and feet. She also had pain in her left leg and foot as well as a broken dental filling. On an emotional level, the Applicant said she had flashbacks, nightmares and sleep issues. She felt fatigued, had issues trusting people and fears people who are on medication. She further noted that the assault exacerbated her pre-existing symptoms of PTSD and prior ABI. In her oral testimony she added that she had dog bites on her lower back and foot (for which she received a tetanus shot and antibiotics) and the bites penetrated her skin as well as neck and back. She also thought her ankle pain may have been from the dog. The Applicant became hyper-vigilant, felt social isolation and developed a fear of dogs and of being out in the public.
14The medical evidence considered when making the Original Order was:
Medical Report dated [date], 2017: He was the Applicant’s Family Doctor since 2011 and confirmed that as a result of this incident, the Applicant suffered from mechanical back pain, neck pain and a strain in her left ankle. He confirms that he has recommended that she undergo chiropractic treatment, massage therapy and physiotherapy and has referred her to the relevant professionals for assessment. He notes at the conclusion of his report that the Applicant’s past history of trauma and brain injury may slow down the progress of her treatment and that he predicts it would take her at least 18-24 weeks to improve significantly.
Therapy Report dated [date], 2017: This Report noted that in addition to the assault described in the Application, the Applicant suffered from abuse as a child and ABI due to repeated blows to her head by her father. Also, she had been violently abused when she was an adult. The Applicant is on long term disability for her ABI. As a result of this incident, the Applicant fears the prospect of unpredictable violence in the future. She has emotional and mental fatigue, sleep disturbances and has experienced flashbacks. Finally, the Therapist noted that the Applicant would benefit from another 18 counselling sessions to stabilize the effects of the trauma and to develop coping strategies.
Letter from Family Doctor dated [date], 2017: This letter recommended chiropractic treatments over a 24 week period (56 sessions X $45 = $2,520.00), massage therapy over a 24 week period (30 sessions X $85 = $2,520.00), physiotherapy as required and determined by the practitioner and psychological counselling and exercise programs.
Letter from Physiotherapist dated [date], 2017: The letter recommended 12 weeks of physiotherapy (24 sessions X $150 = $3,600.00) and 2 weeks of massage therapy (24 sessions X $80 = $1,920.00).
Estimate from [Name] Foot Care: Recommends 5 sessions X $50 = $250.00
Note from second Doctor dated [date], 2017: Noted that the Applicant is a good candidate for prolotherapy injections to deal with the ongoing joint pain in her left hip, knee and ankle.
Applicant’s Evidence at s. 10 Hearing
15With respect to her injuries, the Applicant advised the CICB that as a result of the assault she sustained damaged muscles and ligaments, bruising on her face and buttock, injury to her knee which causes her pain when walking, swelling and pain in her left ankle possibly from the dog bite or twisting her ankle as she fell, left hip injury and an injury to her toe. With respect to the injury to her toe, it was not clear from the file information what had caused it as she had previously indicated it was from a dog bite. However during the s. 10 hearing, she advised the CICB that it was from the nail bending backwards when she fell and as a result she has a ridge on her nail. She also advised the CICB that as a result of the assault and how hard she was hit, her dental filling came out.
16With respect to her pre-existing ABI, she testified that after the assault her sleeping problems got worse, she was sleeping more, waking more, was more fatigued and had to increase her medication to stay awake and help her get through the day. She also advised the CICB that this incident made her Crohn’s Disease worse. The Applicant had provided photographs of her injuries at the review hearing and explained what each represented. Many of these pictures showed the marks left on the Applicant’s body by the dog’s bites.
Applicant’s Written Evidence in Support of Review
17The Applicant also provided the following new evidence to the CICB in support of the s.10 review:
Letter from Therapist dated [date], 2018: Confirms that although the Applicant is very motivated to heal from her injuries, her progress has been slow and complicated due to the interference by symptoms of her Crohn’s and Celiac disease as well as from her brain injury. She recommends that the Applicant participate in at least 5 additional sessions with her.
Letter from Psychiatrist dated [date], 2018: Confirms that the Applicant suffered from PTSD prior to the incident and that “each repetitive trauma worsens the prognosis of the existing PTSD and the suffering of the patient.” The Applicant’s symptoms of hyper vigilance and anxiety were exacerbated by the [date] 2017 assault.
Letter by Occupational Therapist dated [date], 2017: Confirms that the Applicant needs to take frequent breaks during their sessions so that she is better able to concentrate, has increased fatigue, has difficulty communicating orally, has trouble sleeping and has short term memory and other cognitive impairments as a result of her brain injury. Her fatigue symptoms have been exacerbated by her gastro intestinal problems. Her OT also provided a letter in [date] 2017 which explains that due to the symptoms of her brain injury the Applicant has difficulty communicating over the phone and would benefit from an in person audience.
Assessment Report by Physiotherapist, dated [date], 2017: Provides a revised treatment plan and recommends that she undergo 16-24 weeks of physiotherapy at one visit per week. The fee for her initial visit was $90.00 and all follow up visits at this time are $80.00. ($1,690 for 20 sessions and assessment)
Letter from Orthopedic Physician dated [date], 2018: Notes that the Applicant still presents with left hip, left knee and left ankle pain and dysfunction related to trauma and recommends that she undergo 6 treatments of prolotherapy at monthly intervals. The cost for this is $355 x 6 = $2,130.
Letter from Massage Therapist dated [date], 2017: Recommends weekly 60-minute massage therapy treatments of the affected areas and area of secondary complaint which would address muscular discomfort and myofascial dysfunction and augment concurrent treatments. This would cost $90.00 per hour for 16 weeks= $1,440
Letter from Chiropractor dated [date], 2017: Confirms that the Applicant’s back and knee were injured by the injury. He recommends a chiropractic initial assessment $90 one-time fee. Chiropractic treatments $60 future treatment 2 times a week for 12 weeks. Then 1 treatment a week for 8 weeks. Total cost of treatment until reassessment at 20 weeks =$2010.
Letter from Neurologist dated [date], 2017: Confirms that it his clinical opinion that the Applicant probably sustained a moderate closed head injury as a result of the trauma in [date] associated with the assault.
Letter from Adjustment Counsellor dated [date], 2017: Describes that after the assault he noticed the following changes in the Applicant:
o Decrease in her level of attention and multitasking
o Decrease in the completion of agreed upon activities
o Decrease in her participation in social oriented activities in the community
o Reduced attendance in the brain injury support group
o Decrease in her level of tolerance to stress
o Increase in the number of times that she experiences flashbacks resulting and relating to the traumatic event and
o Physical pain on areas impacted by the assault.
Letter from OGI, dated [date], 2017: Confirming that the Applicant is suffering from Crohn’s disease symptoms.
Confirmation letters from Treatment Providers that they will not accept third party payments.
Bank statements from bank and receipts: Confirming that the Applicant has deposited the funds she received from the s.14 order into this account and has been using those funds solely for the purposes of paying from her treatment.
Decision
Original Member’s Assessment of Evidence – Error of Law
18With respect to the assessment for pain and suffering, the previous Member made a serious error of law by failing consider relevant evidence which would change the result. The original Member found no significant medical evidence to support the Applicant's claims of increased effects of her ABI, two alleged dog bites (and associated treatment), and an injury to her foot as a result of the incident. However, the medical treatment providers’ documentation of the Applicant’s further brain injury, dog bites and injury to her foot was in the file. It appears to have been overlooked.
19Furthermore, the Panel considered the additional evidence provided by the Applicant including letters from her Counsellors and Neurologist confirming that her ABI symptoms did increase after the assault. The Applicant provided photographs at the section 10 hearing which confirm the dog bites to her buttocks, arm and ankle but this information was in the Medical Report by the Family Doctor and the Therapy Report and there was no good reason for the Member to discount that evidence at the original hearing. The Applicant also showed the Panel her toe nail and explained the injury in a manner that is consistent with the mark that can clearly be seen on her toe. After considering all of the new evidence, the CICB is satisfied that the Applicant’s injuries were more severe than those that were contemplated by the previous Member.
20For the reasons set out above, the CICB will increase the Applicant’s award for pain and suffering from $6,000.00 to $8,000.00.
21In the Original Order, the CICB had awarded the applicant $9,190.00 in treatment expenses. However, the Applicant provided updated estimates of the costs associated with her treatment at the section 10 review hearing. When the Panel asked the Applicant which types of therapy she found most helpful, she replied that counselling, chiropractic care, prolotherapy and massage therapy are the most essential treatments, whereas the physiotherapy was less essential since it treated the same symptoms as the chiropractic care but with less aggressiveness.
22The Applicant withdrew her claims for dental care and foot care at the section 10 hearing. She has not provided a receipt for the cost of the ambulance, however the Police confirmed she went to the Hospital in an ambulance on the night of the incident.
23Based on the new and more up to date information provided by the Applicant at the section 10 hearing, the CICB finds the following expenses for future treatment to be reasonable:
5 therapy sessions as recommended - $500.00
6 sessions of prolotherapy- $2,130.00
Massage Therapy- $1,440.00
Chiropractic Care- $2,010.00
Ambulance fee-$45.00
24The CICB will overturn the Original Order and award the Applicant a total of $6,125.00 in treatment expenses.
25The CICB therefore approves a further $4,125 ($6,125.00 less previously awarded interim funding) in treatment expenses to be paid to the Applicant in installments of $1,000.00 as she provides the invoices for the previous $1,000.00 she has received.
26The Applicant was represented by Counsel at the hearing. The CICB awards costs in the amount of $400.00 for legal fees. This amount will be paid directly to Counsel.
Award
27The CICB now orders payment as follows:
Section 14 Interim Funding (Dated July 27, 2017) $ 2,800.00
Section 14 Interim Funding (Dated February 16, 2018) $ 2,000.00
Section 7 (1) (a) Future Treatment Expenses $ 4,125.00
Section 7 (1) (d) Pain and Suffering $ 8,000.00
Section 22 Legal Fees $ 400.00
TOTAL AWARD $ 17,325.00
Less future treatment expenses $ 4,125.00
Less Interim Funding (2018) $ 2,000.00
Less Interim Funding (2017) $ 2,800.00
TOTAL CURRENT AWARD $ 8,400.00
28The 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
29THE CICB ORDERS that the following sums be paid forthwith to:
PAGE LAW OFFICE IN TRUST $8,000.00
PAGE LAW OFFICE $ 400.00
DATED at Toronto this 5th day of April, 2018 .
Anne-Marie Langan, Member
Louise Charette, Member