Re 1805-01717, 2019 ONCICB 1

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Louise Charette

Date: January 09, 2019

Indexed as: (Re) 1805-01717

DECISION

INTRODUCTION

1The Applicant, a peace officer, applied to the Criminal Injuries Compensation Board (CICB) seeking compensation for pain and suffering, expenses, loss of income, and future therapy resulting from an incident that occurred on […].

DECISION

2In accordance with the Compensation for Victims of Crime Act, RSO 1990, c C24, as amended (CVCA), the CICB grants the Application in part. Our reasons for this Decision follow below.

ISSUES

3The fact that there has not been a conviction is not a bar to the Applicant’s claim. Subsection 16 (1) of the CVCA provides that compensation may be awarded whether or not a person has been prosecuted or convicted of the offence giving rise to the injury.

4The Applicant must prove, on a balance of probabilities, that her injuries are the result of at least one of the following:

• a crime of violence, pursuant to subsection 5 (a) of the CVCA;
• lawfully arresting or attempting to arrest an offender or suspected offender of an offence against a person other than the Applicant or his dependent or against such person’s property, pursuant to subsection 5 (b) of the CVCA;
• preventing or attempting to prevent the commission of an offence or suspected offence against a person other than the Applicant or his or her dependent or against such person’s property, pursuant to subsection 5 (c) of the CVCA.

5The Applicant must also provide reliable evidence to support her claim for expenses actually and reasonably incurred as a result of her injury pursuant to section 7(1)(a) of the CVCA.

6The Applicant must also provide reliable evidence of income or pecuniary loss incurred as a result of her total or partial disability affecting her capacity for work pursuant to section 7(1)(b) of the CVCA.

7In assessing compensation, the Board shall also take into consideration any benefit, compensation or indemnity paid or payable to the Applicant from any source other than social assistance pursuant to section 17(3) of the CVCA.

HEARING

EVIDENCE

8The Board reviewed the following documentary evidence: the application, police synopsis and questionnaire, hospital records, medical records, report from family doctor, medical assessment, invoices and receipts, employer’s report, CRA records, WSIB related documents, summary of the evidence provided by the Applicant’s representative as well as submissions.

9The Applicant also appeared by teleconference and provided oral testimony.

10The Applicant testified that on […] the day of the assault, she was on duty as a police officer and that she and her partner responded to a 911 call for a break and enter in progress. She testified that when they arrived on scene she witnessed the offender holding two objects in his hands and that she believed one was a screwdriver.

11The Applicant described the offender as being much bigger than her, as agitated, sweaty/slippery and delusional. As the incident occurred in an underground parking lot where people were walking and cars driving by, officers were concerned for everyone’s safety including the offender’s. They attempted to calm him down but he kept resisting pushing both officers. She reiterated that a violent struggle ensued as the offender was attempting to pull free from her and her partner. She explained that during the struggle, he pulled her and she immediately felt a sudden sharp pain in her right arm. She was transported to the hospital the same day.

12The police occurrence report and questionnaire confirm the Applicant’s version of the events. It was noted that the offender had attended a secure apartment building and had entered unlawfully into the underground parking garage. The complainant contacted the police when she saw her property outside the storage room.

13When officers arrived, the offender was a short distance away attempting to pry open a grate with a pair of scissors. Upon seeing the officers, he dropped the tool and ran further into the underground garage, down several levels where officers chased him. They were able to corner him near a parked car and attempted to calm him down.

14When they advised him he was under arrest, he resisted. The offender was described as extremely sweaty and slippery. He struggled to pull free from the two officers and in the process of pulling free, the Applicant injured her arm and shoulder as she attempting to maintain her hold on him. The offender then escaped and officers resumed their chase and were eventually able to tackle him and take control. The offender later admitted to consuming narcotics and being under the influence.

15Police information indicates that the offender was charged with a number of offences including resisting arrest. He was found guilty of two counts of Break and Enter and Mischief in relation to this incident, but was not convicted of the resist arrest count. He was sentenced to ten days pre-sentence custody and eighteen months’ probation.

Injuries

16The Applicant wrote that she sustained a significant injury to her right shoulder and that as a direct result of the crime of violence and that she has multiple diagnoses.

17At the hearing, the Applicant testified that her injuries occurred while the suspect was resisting arrest. She was of the view that she injured her arm and shoulder while attempting to maintain her hold on him as he was attempting to pull free.

18The Applicant testified that immediately following the incident she could barely move or breathe due to the pain and recalled her shoulder swelling up. She also sustained bruising and lacerations. The Applicant also noted that shortly following the incident, she could not eat and as a result she lost weight. She also had difficulties sleeping and getting up.

19The Applicant explained that her shoulder injury still causes her limited range in motion and that it is difficult for her to move her arm above her chest. She testified that she frequently experiences shoulder “locking or snapping” and that it causes numbness, tingling and pain and as well, makes it difficult for her to get changed. As she is allergic to pain mediation, she has tried the different methods to ease the constant pain which did not appear to be effective. She stated that she opted for massage therapy to relieve the tension in her shoulder and neck.

20The Applicant also testified that she suffers from migraine headaches which causes nausea. She associates the headaches to tension and over compensating her muscles in the neck and back. The Applicant testified that she continues to be off work due to her injuries.

21With respect to her psychological injuries, she noted the following; sleep disturbances, flashbacks, recurring thoughts of the incident and stress.

Medical information

22Information on file indicates that the Applicant had a pre-existing condition. An orthopedic consult note indicates that she had sustained a prior dislocation five years earlier while on duty and a subluxation episode two to three years earlier. She had also been involved in two motor vehicle accidents and had suffered shoulder dislocations as a result. The information also indicate that she no longer had symptoms or limitations at the time of this incident.

23The Board reviewed a medical report submitted by the Applicant’s family doctor dated July 2018, which indicates that she suffered a right shoulder injury as a result of the crime of violence. The prescribed treatments were: physiotherapy, massage therapy and medication. Her prognosis was considered fair however permanent injury was noted. The doctor was of the view that she should only work part time on modified duties. The disability period noted was from July 15, 2017 to June 18, 2018. She was unable to work due to pain and reoccurring dislocations in her shoulder.

24The Applicant’s representative provided a summary of the medical information submitted which the Board considered in totality but will not reiterate in detail. The information confirms a shoulder injury and associated damages as a result of the crime of violence. A sick note provided shortly after the incident points out constant pain.

25The medical information dating back to January 2018 confirms the following: severe pain and difficulties with movement in right shoulder which causes difficulties sleeping and neck pain. Indication of rotator cuff tear and instability in the shoulder. She was not considered fit to return to work. Resting and more therapy was recommended. Full recovery was not expected.

26The medical information from February 2018 indicates the following: right shoulder snapping and dislocation with associated pain as well as tendinitis, decreased range of movement causing migraines. She was still unable to work and required massage therapy.

27In March of 2018, a problem was discovered with her biceps and pectoral as well and spasm. She was not able to return to work due to pain and limited range of movement of right shoulder.

28In April, ongoing problems are noted such as; shoulder and neck pain, instability and dislocations as well as difficulties with movement. She was still not fit to return to her regular work as a police officer and in view of the shoulder pain it was noted that she could not do repetitive work such as desk work at that stage. It was recommended she take a further six weeks off. Her family physician notes arm numbness, nausea, migraine headaches, right shoulder very tender with rom 5% normal with crepitus. She is still unable to work or to sit at desk and type/write. It was recommended that she comply with the following right shoulder restrictions; lifting, carrying, pushing/pulling, above-chest level work or repetitive use off the right arm away from the body. Improvements were noted with massage therapy.

29In May of 2018, she was seen by a WSIB specialist and she was to remain off work. The tendinitis in her right shoulder and her decreased rom were to be treated with home exercise and voltaren emulgel. It was noted that she was experiencing severe headaches, eyes soreness and nausea. She had increased numbness and tingling right arm and hand, difficulties sleeping, her shoulder was tender and she was experiencing chronic dislocations.

30During an examination in June of 2018, it was noted that she could easily dislocate her shoulder. It was also noted that she had returned to work on June 19th 2018 with no plan for surgery. WSIB had closed her file in April and the police services doctor had placed her on modified duties.

31In July, the Applicant completed a functional ability evaluation with the occupational therapist. It was indicated that she had numbness in all parts of her right hand after the evaluation and that she had decreased power and tender right bicep proximally. She was still on modified duties, wearing a right arm sling.

32A visit to Orthopedics on July 16th 2018 notes significant worsening of her right shoulder pain as well as numbness and tingling down the median nerve. She had limited range of movement of the right shoulder and was experiencing recurrent right shoulder dislocation and painful snapping. She was provided with a prescription for massage therapy and it was also recommended she continue with physiotherapy. She was still experiencing pain in the neck and shoulder, stiffness in the right shoulder and right side of neck as well as decreased rom. She remained on modified duties with permanent injury noted.

33During her visit to orthopedics in October of 2018, it was suggested that the Applicant do home exercises and massage therapy. Her range of motion was improving as well as her symptoms. On examination, snapping was noted in her shoulder as well as recurrent instability and decreased range of motion. Her family physician notes weight loss due to stress, right shoulder tenderness, decreased rom, crepitus with movement and recurring dislocation of the right shoulder.

34On November 7th 2018, medical notes indicate decreased rom and increased pain in her right shoulder as well as recurring dislocation. She was experiencing stress at work and suffered from insomnia, anxiety, depression and bouts of crying. Her WSIB file remained closed. She was expected to work two days a week.

35On November 20th 2018 her family doctor notes she has been off work due to shoulder pain. She was still experiencing headaches, shoulder tenderness and recurring dislocation of right shoulder.

36On November 26th 2018 orthopedics notes she has recurrent snapping and possible subluxation of the shoulder and she was ordered she be off work for 8 weeks.

ANALYSIS

37In light of the credible and reliable information on file and the Applicant’s testimony that the offender pulled on her arm during the struggle, the Board concludes the Applicant was a victim of a crime of violence, namely an assault, pursuant to section 5(a) of the CVCA.

38The Board also finds that the Applicant’s injuries resulted from attempts to lawfully arrest the offender and so 5(b) of the CVCA also applies.

Compensation

Pain and Suffering

39In assessing the claim for pain and suffering, the CICB considered the seriousness and extent of the Applicant’s injuries and her need for continued medical intervention. In this case, the Applicant suffered injuries to her shoulder with associated difficulties and has had to attend numerous medical visits and treatments. No doctors are been able to explain her snapping shoulder or give her a proper prognosis at this time. Surgery was initially not recommended however it is suggested that it may be required in the future. Some doctors are of the view that she may never return to regular duties as a police officer. Accordingly, it would appear that the injury is permanent and will have serious consequences on the Applicant.

40The CICB will award the Applicant $ 9,000.00 for pain and suffering.

Expenses

41The Applicant testified that as a result of this crime of violence she incurred the following expenses which were not covered by WSIB.

• Doctor’s note; $30.00
• Medical records; $115.00
• Updated medical records; $117.50

42As receipts were submitted in support of these claims, the Board is awarding a total of $262.50 for these expenses.

Loss of income

43The Applicant is also seeking compensation for loss of income. In this context, the Board must consider section 17(3) of the CVCA. Section 17(3) states the following:

17(3) In assessing compensation, the Board shall take into consideration any benefit, compensation or indemnity paid or payable to the applicant from any source other than social assistance.

44The Applicant testified that she experienced a loss of income as a result of this incident. She reported that she was in receipt of WSIB benefits from the time of the incident until April of 2018. In considering her past earned income from 2016 to 2018, she submits she sustained a total loss of $33,436.33.

45At the onset of the hearing she was explained that in cases where an Applicant has received benefits from WSIB, any benefit or compensation paid or payable to him/her from other sources must be considered. She was advised that loss of income claims are unlikely available for her as she had already received WSIB tax-free benefits for loss.

46The evidence is that the Applicant was in receipt of 85% of her net earnings through WSIB. The awards from the Board are not paid from the wrongdoer as would be the case if the Applicant pursued compensation through a civil action, they are paid using public funds. That being said, it is not the Board’s obligation to position the Applicant where she would have been had the incident not occurred. In considering the amount already received from other sources, the CICB does not find it appropriate to award compensation for the 15% difference in this case. This part of the Applicant’s wage loss claim is thereby denied.

Scheduled overtime

47The Applicant was also advised that in cases where and Applicant is in receipts of WSIB benefits, the Board only considers loss of income related to scheduled overtime that has not been covered by WSIB or any other sources. In order to be considered for such, claimants must provide the Board with documentation from their employer confirming the scheduled overtime, the amount of the loss and that compensation has not been received for same.

48At the hearing, the Applicant and her representative were advised that the Board may consider scheduled overtime however this would have to be confirmed by the employer. The Applicant’s representative indicated that as a result of the incident she missed out on “Court time”, which is scheduled overtime in the amount of $3,818.40. The Applicant submitted a document entitled “Officer Court history inquiry” which confirms she was scheduled to attend court on eight different dates following the incident.

49In light of this evidence, the Board will award $400 for loss of scheduled overtime which represents 8 days at the Board’s standard rate of $50.00 per day.

Loss vacation/sick time

50The Applicant also requested that the Board consider her loss of vacation time/sick time. She advised the Board that she was forced to return to work on April 2, 2018 however following her doctor’s advice she did not go back to work. The Applicant went back to work on June 18, 2018. Medical records confirm that she was forced to return to work on modified duties on June 19th until November 20th 2018.

51As a result of her not returning to work in April, her WSIB benefits were terminated and she was required to use up her vacation and sick days in order to be paid. She testified that as a result she lost 120 hours of vacation time. Records provided show that between those dates she lost 220 hours of sick time. Accordingly, the Applicant submits that she has lost 340 hours and is out of pocket $24,820.00.

52The representative argued that the Applicant suffered a loss when considering she had to use up some vacation time/sick. He noted that they are aware of the Board’s practice in these circumstances however suggested that this is a guideline only and that it may not be applicable to all cases. In that respect, counsel referred to the case of Dalton v. Criminal Injuries Compensation Board noting that the Board must exercise its discretion in a judicial manner. Counsel argues that the Board must consider her request on the evidence provided and within the scope of the CVCA whether it chooses to award her compensation or not is within the discretion of the Board. He argues that to simply deny the request based on Board practice would be an error in principle.

53That being said, the Board also considered this part of the Applicant’s claim related to used sick leave, vacation time/discretionary leave credits. The Board notes that it generally awards compensation only in respect to actual income loss, that is, those situations whereby an Applicant’s regular earnings were not covered by other benefits such as sick leave, vacation time, or other discretionary leave credits.

54In the absence of evidence to establish an actual loss of income, the Board does not find it appropriate to award compensation for income loss related to used sick leave/vacation time/other discretionary leave credits. The CICB does not typically award compensation for this and does not find any compelling reason to deviate from its usual practice in this instance.

Common Law Damages

55When an Applicant is compensable under section 5(b) there may be broader remedies available to the Applicant according to section 7(2) of the CVCA:

Where the injury to a person occurred in the circumstances mentioned in clause 5 (b) or (c), the Board may, in addition to the compensation referred to in subsection (1), award compensation to the injured person for any other damage resulting from the injury for which damages may be recovered at common law.

56The Applicant’s representative argued that the CICB should consider awarding the Applicant an amount to compensate for her loss of earning capacity at common law pursuant to section 7(2) of the CVCA.

57First, the representative notes that the Applicant was ordered to remain off work due to a deterioration in her condition and there is no current prognosis or plan to return in the foreseeable future. In that respect he suggests a lump sum payment and periodic payments of $1,000.00 monthly from July 15th, 2017 to July 15th, 2047.

58The Applicant’s representative also argues that the Applicant’s loss of earning capacity is compensable at common law pursuant to the decision in Andrew v. Grand and Toy Alberta Lt., 1978 1 (SCC), [1978] 2 S.C.R. 229 and that accordingly she seeks an award for this as well.

59He notes that a “loss of earning capacity” has been described by the court in Grottola v. Stanziano, 2018 852 (ON SCSM) as:

a. where a person has been rendered less capable overall from earning income from all types of employment b. where a person is less marketable or attractive as an employee to potential employers. c. Where a person has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured. d. Where a person is less valuable to himself as a person capable of earning income in a competitive labour market.

60Counsel also refers to the cases of Ellsworth v. Singer, 2016 ONSC 4281 as well as Cerilli v. Ottawa (City), 2008 ONCA 28. The case of Ellsworth notes that the evidence to sustain a loss of earnings or loss need only be reasonable and not speculative. The case of Cerilli also deals with future lost income on the basis of competitive advantage. The court notes that the fact the Applicant was unable to continue to work full time in the area she chose to work is compensable in damages.

61The Applicant’s representative notes that in our case the evidence suggests that the Applicant’s injuries are; permanent, doctors have advised her she is unlikely to return to her full duties, she has been off work since November with no plan to return, she has been transferred to a new division and there is no current prognosis for her injuries. Based on these facts, the Applicant’s representative submits that her loss of earning capacity is a reasonable probability and is therefore asking the Board to award compensation pursuant to section 7(2) of the CVCA.

62When assessing whether to award compensation for damages that may be recovered at common law, the Board would also need to assess whether or not the Applicant has done anything to mitigate their damages. It would appear in this case that the Applicant is doing everything in her power to do so.

63The difficulty in this case is that it would appear the medical profession is unable to provide a prognosis at this time. The medical report dated July 2018 indicates her prognosis was considered fair however permanent injury was noted.

64Although it would appear that the Applicant may not be able to resume full duties as a police officer, the opportunity for her to work on modified duties at her full salary is a likelihood and still available to her. There is no evidence before the Board at this time of a loss of future income and her earning capacity within the police force is not considered compromised at this time. In light of those facts, this portion of her claim is being denied.

Counselling/Therapy

65The Applicant is requesting that the Board consider future funds for massage therapy. Although it has be recommended for one year for “right shoulder snapping pain”, WSIB has terminated this expense as they are covering physiotherapy only. When asked to explain why she needs both, the Applicant testified that massage therapy helps with her migraines due to pain.

66Therefore, based on the Applicant’s stated intention to continue with massage therapy and that she testified that this expense is not currently being covered by WSIB, the Board authorizes this expense.

67The CICB awards up to $1,800.00, at $100.00 for each massage therapy session. This amount is considered reasonable in the circumstances. Payment will be made directly to the approved treatment provider on submission of an invoice and receiving confirmation of the treatment provider's professional status unless the CICB already has confirmation on file.

68Therapy sessions must be completed within 36 months of receipt of this Order. Payment may be made directly to the treatment provider on a monthly basis, upon submission of an invoice(s) and the required verification(s) from the Applicant.

69The Board further awards $400.00 for legal fees.

AWARD

70The CICB orders compensation as follows:

Subsection 7(1)(d) Pain and Suffering $9,000.00 Subsection 7(1)(a) Expenses $262.50 Subsection 7(1)(b) Income Loss $400.00 Subsection Section 22 Costs $400.00 Subsection 7(1)(a) Future Pre-Authorized Expense $1,800.00

TOTAL AWARD (AND COSTS) $11,862.50 Less: Preauthorized treatment costs $1,800.00 TOTAL CURRENT AWARD $10,062.50

71THE CICB ORDERS the following be paid immediately to:

The Applicant $9,662.50 Law Firm $400.00