CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Anne-Marie Langan, Pamela Arnott Date: April 08, 2018 Indexed as: (Re) 1007-83894
SECTION 10 REVIEW
ORDER
Introduction
1This Application is the subject of a request for a review of an Order by a single Member, heard by the Criminal Injuries Compensation Board (CICB) on November 23, 2015. This Application is heard pursuant to section 10(1) of the Compensation for Victims of Crime Act, RSO 1990, c. C. 24, as amended (the “Act”).
Parties and Definitions
2The Applicant had filed an Application seeking compensation for injuries arising from the commission of a crime of violence.
3The CICB awarded the Applicant compensation for pain and suffering. The Applicant subsequently applied to vary the order and was denied and that decision is the subject of the current review. This hearing was adjourned three times to allow the Applicant to retain counsel.
4The following reasoning for the denial is as follows:
The Applicant's request for a variance of pain and suffering is based on the assertion that the CICB had failed to adequately compensate him for his injuries. It is only in very exceptional circumstances that the CICB will vary an order under s.25 to provide compensation for additional pain and suffering. Ordinarily, awards by the CICB for pain and suffering are paid in a lump sum as of a particular date. These lump sum payments are made in recognition of the Applicant's injury not only in the past and present but to take some account of the consequences to the Applicant in the future. Therefore, the CICB does not usually contemplate varying its awards for pain and suffering under s.25 of the Act, particularly in situations where consequences to the Applicant that have been identified at a previous hearing have simply continued into the future. To consider compensating further to a request for additional pain and suffering, the CICB usually requires compelling new evidence (particularly medical and treatment evidence) which demonstrates that the impact on the Applicant from the crime of violence is something wholly different in nature or extent than the injury or injuries for which the CICB previously compensated the Applicant in the order sought to be varied. The CICB does not grant variations of orders under s.25 as a substitute for an appeal to the Ontario Divisional Court on a question of law. Further, the CICB does not provide additional pain and suffering awards where it finds that the connection between the crime of violence and the Applicant's request is too remote.
Issue
5Where an Application is heard by a single Member, s.10 of the Act gives the Applicant and the Minister the right to a “review and hearing” within 15 days after service of the decision. The purpose of the review hearing is to review the decision of the single Member, not to hold a new hearing. The focus of the review hearing should be on whether there is a serious error of law or unreasonable exercise of discretion in the decision.
Documentary Evidence Reviewed
6The CICB received the following documents with respect to the initial claim, the claim for variation and the claim for review:
- Application: The Applicant was physically assaulted by the Offender. At the time of the incident, the Applicant was staying at a rooming house. He noticed that pieces of his clothing were missing and asked the Offender about it. The Offender got angry and stabbed him several times. The Offender was subsequently convicted of aggravated assault in relation to this incident. According to the Police, this was an unprovoked and vicious attack. Details of Applicant's injuries are listed in occurrence information.
- Hospital Report: An old brief reviewed by s. 25 adjudicator.
- Medical Report dated [date], 2013: reviewed by s.25 adjudicator: This report confirms that during the 1992 assault the Applicant was stabbed right side of neck four times; four times in right side of head; had 9 wounds in the back and bilateral chest tubes. As a result of the assault, the Applicant was admitted to hospital; required chest tubes bilaterally and surgery to address his injuries.
- Letter from Laser Treatment Centre dated [date], 2016: An estimate for scar revision was provided, as well as Consultation Notes from Hospital Treatment Plan. The estimate indicates “1. Pulsed Dye Laser treatments: 1-3 Treatments at $300 + HST per treatment 2. Fraxel Treatments: 3-4 Treatments at $500 + HST per treatment 3. RS Profractionated Treatments: 1-2 Treatments at $500 + HST per treatment. Follow-up is required every 3 months to determine if further treatments is required.” This estimate is no longer relevant since the Applicant withdrew claim for scar treatments on December 23, 2014.
Applicant’s Evidence
7At the beginning of the s. 10 hearing, the Panel explained to the Applicant the purpose of the hearing including the requirement that the onus was on the Applicant to indicate whether there was a serious error of law was made in the previous decision or that the previous Member unreasonably exercised her discretion.
8The Applicant testified that he received over 1500 hundred internal stitches and 500-600 stitches on the exterior of his body. When the Doctor pulled out tubes that were inserted due to his collapsed lung, his right lung remained slightly over-expanded. As a result the Applicant can feel the scar tissue rubbing against his rib cage which causes him to experience sharp pain, particularly when he takes a deep breath. Unfortunately there is nothing his Doctor can do about these symptoms. He testified that, due to the damage to his lungs, he can’t exert himself too much and avoids anything too strenuous such as biking too fast or for too long.
9The Applicant expressed gratitude that a lady near the scene of the incident had called Police and ambulance and in doing so, saved his life. He explained that he was “dead for 30 minutes” before the paramedics could revive him.
10The Applicant also has nerve damage to his face. As a result he gets twitches in his eye and one of his pupils opens up spontaneously. He admitted that this does not affect his vision and is adequately controlled by medication.
11The Applicant also mentioned that when he opens his mouth wide, his jaw can lock up and he has to massage it to get it to stop hurting.
12The Applicant further expressed that he is embarrassed when people ask him about his scars and would like to remove them. He showed the Panel a scar behind his right ear which was not very noticeable. He also feels embarrassed about taking his shirt off due to scars on his back and under his arms.
13His Doctor referred him to a pain clinic in 2010 as a result of another assault that was unrelated to the first one. During this attack a larger man severely beat him and “crushed his face” resulting in chronic pain.
Decision
14The CICB accepts that the Applicant was the victim of a violent crime in 1991 and suffered physical and some psychological injuries as a result of this incident. At his initial hearing in 1992, the CICB recognized this by awarding the Applicant damages for pain and suffering of $3,500.00.
15The Applicant initially applied for a variation of the pain and suffering order in April 2010, and again in January 2013 but did not provide the information that the CICB needed to make a determination and the claims were dismissed for being incomplete. The Applicant filed another s. 25 request for variation on August 19, 2014 requesting that the pain and suffering award and additional compensation for scar tissue removal. The scar tissue removal portion was withdrawn and after hearing the matter, the CICB denied a variation of the pain and suffering award. This denial is the decision that is under review.
16The variation was denied on the basis that the Applicant had not provided any further evidence that would justify an increase in the amount of damages for pain and suffering awarded. Specifically, based on the totality of the evidence, there was no connection with the change in the Applicant’s condition and the original crime of violence.
17In the decision to deny the variation, the previous adjudicator considered the evidence that is currently before the Panel and determined that it did not justify a further pain and suffering award to the Applicant. The Applicant provided evidence submitted after the 2015 decision for the purpose of this review in the form of a report from the Dermatologist and a quote for laser therapy for removal of the Applicant’s scars. The Board does not accept this new evidence as this information could have been obtained with reasonable diligence prior to the original s. 25 decision. Furthermore, the report only speaks to the Applicant’s scars, for which he has withdrawn his claim and is not relevant to whether or not the Member erred in denying his claim for a further pain and suffering award.
18The Applicant also relies on other issue of lung pain in his request for a review of the 2015 decision. However, this factor was considered in the denial of the variation and there is no error in law as a result. Moreover, the previous adjudicator also noted that there had been intervening events, including a serious assault, that had also impacted the applicant’s functioning, and in particular his chronic pain and that it is very difficult to differentiate now between the consequences of the 1991 assault and the one he suffered later. For these reasons, the CICB finds that the Applicant has not met the test for section 10 on the issue of pain and suffering.
19Given that the Applicant has not provided any new documentary or oral evidence, nor did he point to anything that would indicate that the adjudicator had made a serious error in law or an improperly exercised her discretion. The CICB upholds the s. 25 adjudicator’s decision in 2015 to deny the Applicant any further damages for pain and suffering.
DATED at Toronto this 8th day of April, 2018.
______________________________
Anne-Marie Langan, Panel Chair
______________________________
Pamela Arnott, Member