CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: David Fine
Indexed as: (Re) 1806-02163
DECISION
Introduction
1The Applicant applied to the Criminal Injuries Compensation Board (CICB) seeking compensation for injuries resulting from an assault. The Applicant is seeking the following forms of compensation: pain and suffering, loss of income, expenses and future counselling and\ or physiotherapy costs.
Decision
2In accordance with the Compensation for Victims of Crime Act, RSO 1990, c.C24, as amended (CVCA), in addition to an interim award of $1200.00 which has already been made, the CICB awards the Applicant $11,180.00 plus $444.07 for legal costs. The reasons for this Decision follow below.
Hearing
3The Applicant appeared electronically on June 21, 2019 and provided oral testimony and his counsel made submissions.
4The Applicant’s file contained the following documents: Application, Police General Occurrence report, Hospital records, Medical report, Physiotherapy report, CRA records, expense invoices, and a CICB order pursuant to s. 14 of the Act.
Evidence
5The Applicant testified that at about 4 pm on December 3, 2017 he received a call as an Uber driver to pick up a passenger at the intersection of […] Street and […] Street in the City of […]. He proceeded to that location. He waited a short time, but no one showed up.
6Suddenly, someone came to the driver’s door and signaled the Applicant to open the window which he did. The individual asked if he was the Uber driver. A second person appeared and opened the driver's door. The Applicant was dragged out of the car, punched in the face and thrown to the ground. He was then punched and kicked all over his body by the two individuals which seemed to go on for about five to ten minutes Except for swearing at him, the attackers did not say anything. There were bystanders who witnessed the attack and one of them called the police. The bystanders yelled and screamed at the attackers which caused them to run off.
7The Applicant does not know if the Alleged Offenders were the ones who called Uber. He was not robbed and has no idea why he was attacked. The Alleged Offenders have never been apprehended by the police.
8The Applicant was taken to a hospital by ambulance. He suffered a fractured right wrist, a partial rotator cuff tear to his right shoulder, and various soft tissue injuries to his right knee, neck, low back and hips. He also had an injury to his head which caused blurry vision for some time and headaches. From a mental perspective he says he is depressed, suffers crying jags and is sad and angry. Everything looks bleak to him and he says he is not the same person. His social life and relationship with his family have been impacted.
9The Applicant wore a cast on his right wrist for three months. He still has residual problems with all of his injuries His wrist is still swollen and he gets pain on exertion. He still has pain in his right shoulder and limited range of motion. He still gets pain in his neck, low back and hips. He is still bothered by headaches. His right knee is swollen and it still bothers him. His mental injuries have not improved and he is on a waiting list to see a psychiatrist.
10Pursuant to s.14 of the CVCA the CICB made a preliminary order dated March 14, 2019 which awarded $1200.00 to the Applicant for physiotherapy. The Applicant continues to get physiotherapy treatments and takes pain killers when required.
11The Applicant testified that he was off work from December 3, 2017 to April 7, 2018. The CRA records indicate that in 2015 his net income was $3,808.00. In 2016 and 2017 his net income was $14,194.00 and $11,142.00 respectively. The Applicant commenced working for Uber on July 16, 2017. Although the Applicant produced a summary of amounts earned from Uber in 2017 no back up documentation was provided to verify those amounts.
12The Applicant submitted expense claims as follows: cast-$35.00, eye examination-$145.00, new glasses-$459.97, medical forms-$90.00 and ambulance-$45.00. The Applicant also claims an award for future physiotherapy and\or counselling.
13The Applicant's Legal Representative incurred an expense of $44.07 for hospital records.
Analysis
14There was no conviction in respect to the incident.
15Section 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 or death of the Applicant.
16The Applicant is required to prove, on a balance of probabilities, not only that he was a victim of a crime of violence but that he suffered injuries and losses as a result.
17I find the Applicant is a victim of a crime of violence and suffered injuries as a result. The Police General Occurrence report corroborates that the Applicant was a victim of an assault and the hospital, medical and physiotherapy records corroborate his injuries.
Compensation
Pain and Suffering
18On May 29, 2019 the CVCA was amended to provide that the maximum allowable amount for pain and suffering is $5,000.00. Previously the maximum allowable amount was $25,000.00.
19The Legal Representative of the Applicant submitted that the Applicant was delayed in getting a hearing date and any award for pain and suffering should be determined under the law which existed prior to May 29, 2019.
20The Application was submitted on June 18, 2018 and the hearing was conducted about one year after that date. That is a reasonable time frame for a matter to be heard after an application is submitted. There is no evidence of any delay in getting this matter to a hearing. The Applicant's application proceeded to a hearing in the normal way. In any event, the amendment came into force on May 29, 2019. As a result, the Applicant's award for pain and suffering is governed by that amendment notwithstanding that the Application was submitted before that date.
21I award the Applicant $5,000.00 for pain and suffering. In awarding this amount I have taken into account the vicious nature of a random attack on the Applicant by two Alleged Offenders and the nature of his injuries which trouble him up to the present.
Expenses and Income loss
22The Applicant must provide reliable evidence to support the claims for:
expenses actually and reasonably incurred as a result of the crime of violence
income or pecuniary loss incurred as a result of total or partial disability affecting capacity for work
23I award $4,200.00 for the period December 3, 2017 and April 7, 2018 representing four months and four days of lost income. There is evidence to support the period of disability in the physiotherapist report and medical records. Because there is no verification of the Applicant's income from Uber the appropriate way to calculate the Applicant's net income is to average the figures for 2016 and 2017(eleven months). That figure is $1098.00 a month or about $55.00 a day It is not appropriate to use the 2015 net figure in the average as the number appears to be an aberration It is the CICB's usual practice to award $1000.00 a month and $50.00 a day for lost income. which results in the $4200.00 amount I see no reason to deviate from that practice in this case.
24I award 35.00 for the cost of the cast and $145.00 for the eye examination which was necessary to deal with the blurry vision problem Appropriate verification of those claims were produced. I deny the claim of $45.00 for the ambulance as the Applicant stated he has not paid it. I also deny the claim of $90.00 for the preparation of the forms as the applicant could not explain what they were for or how they related to the crime of violence. Finally, I deny the claim of $459.97 for the replacement of the Applicant's glasses. The CICB does not usually pay for property damage and I see no reason to deviate from that practice in this case.
25I award $1800.00 for future physiotherapy and\or counselling.
26I award the Applicant's Legal representative $400.00 for legal costs and $44.07 for the cost of the hospital record. Verification of the cost was provided.
Award
27The CICB orders compensation as follows:
Subsection 7(1)(d) Pain and Suffering
$ 5000.00
Subsection 7(1)(a) Expenses
$ 180.00
Subsection 7(1)(b) Income Loss
$ 4200.00
Subsection 7(1)(a) Expenses (Section 14) Award
$ 1200.00
Subsection 7(1)(a) Future counselling and \or physiotherapy
$ 1800.00
Section 22 Costs
$ 444.07
Total Award (and Costs)
$ 12,824.07
Less: Section 14 Award – already paid/authorized
$ 1200.00
Total Current Award
$ 11,624.07
Payment
25The CICB orders the following be paid immediately to:
Applicant
$ 11,180.00
Law Firm
$ 444.07
Dated at Toronto on August 21, 2019
David Fine, Board Member