CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Kevin Cleghorn
Indexed as: (Re) 1804-01483
DECISION
Introduction
1The Applicant applied to the Criminal Injuries Compensation Board (CICB) seeking compensation for pain and suffering for injuries resulting from a crime of violence that occurred in [..].
Decision
2In accordance with the Compensation for Victims of Crime Act, RSO 1990, c C24, as amended (CVCA), the CICB grants the Application. My reasons for this Decision follow below.
Hearing
3The hearing was conducted in writing on the basis of the materials contained in the Applicant’s file.
4The Applicant is a peace officer employed by a municipal transit service. In [..], in the course of his duties, he assisted another peace officer who was attempting to restrain an aggressive passenger, the Alleged Offender, on a bus. The Alleged Offender fought back and literally threw each peace officer across the bus. Each security officer was subjected to violence. The Applicant had his back slammed against the ceiling of the bus and then into a metal pole. The fight lasted approximately three to four minutes and ended when the Alleged Offender became unconscious. After subduing the Alleged Offender, the Applicant felt intense pain in his right shoulder and on his shoulder blade.
5The injuries and consequences of the injuries to the Applicant were serious and extensive. He had:
A shoulder injury which required future surgery (surgery scheduled for mid-2018)
Decreased abduction in his right shoulder
Significant neck and back pain/back and neck strain
The need for pain medication, as well as physiotherapy and massage therapy
Difficulty lifting heavy objects
Sleep disturbance
An inability for an extended period to exercise and engage in the usual activities of his family (unable to lift his young children)
Personal weight gain due to inactivity
An exacerbation of symptoms associated with previous Post Traumatic Stress Disorder (“PTSD”)
Significant Anxiety, again exacerbating previous symptoms
Significant, ongoing need for physiotherapy, both prior to and after surgery
The likelihood of a lengthy period of rehabilitation for his shoulder following surgery
Analysis
Crime of Violence
6The incident was reported to the Police. The Alleged Offender was charged with assault of a peace officer and obstruct a peace officer. The outcome of the criminal court process is unknown as the charges were transferred to the criminal court of another province. A transfer of that nature would only occur if the Alleged Offender had pled guilty to at least one of the charges.
7Section 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 injuries.
8The Applicant is required to prove, on a balance of probabilities, not only that he was a victim of a crime of violence but also that the injuries resulted from the crime.
9I find the Applicant is a victim of a crime of violence because all of the evidence is consistent that he was attempting to restrain the Alleged Offender in the scope and course of his duties. He was injured through no fault of his own. He was the victim of an assault while exercising his employment responsibilities. He was attempting to restrain the Alleged Offender who was assaulting his colleague and may have harmed other passengers but for the intervention of both security officers.
Section 17
10Section 17 of the CVCA requires the CICB to consider whether:
The Applicant’s behaviour may have directly or indirectly contributed to the injuries.
The Applicant refused reasonable cooperation with, or failed to report the incident promptly to a law enforcement agency.
Any benefit, compensation or indemnity was paid or is payable to the Applicant from any source other than social assistance.
11Having considered all the relevant circumstances, I am satisfied none of the section 17 factors are relevant to this Application.
Compensation
Pain and Suffering
12In assessing the claim for pain and suffering the CICB considered the nature and length of the assault (which was relatively short in duration) but nonetheless resulted in significant physical injuries with an extended time for his recovery. Two physiotherapists have described the shoulder issue as a permanent impairment; the Applicant’s physician, however, has described it as temporary impairment. One physiotherapist opined that the Applicant had a “guarded prognosis”. The exact nature of the Applicant’s shoulder issue, and its future functioning, might become apparent following surgery but CICB has been provided with no information as to whether surgery has occurred and, if it has, the outcome of such surgery. The amount of the award is based upon the information known at this time, which also takes into account the emotional repercussions for the applicant. On the other hand, the CICB also considers the mitigating factors of the existence of a previous neck/spinal injury arising from a motor vehicle accident in 1998, the pre-existence of PTSD and anxiety stemming from earlier workplace and/or personal incidents and that the compensation is being paid from public funds.
Medical Expenses
13The Applicant claimed medical expenses in his Application. He did not cite any specific medical expenses, nor did he provide any receipts/invoices for same. He made reference to a claim being made to the Workplace Safety and Insurance Board (“WSIB”) and I anticipate that such expenses may have been paid by that source. I understand that the decision by WSIB on a non-economic loss (“NEL”) award for the Applicant was also pending, possibly awaiting the outcome of surgical intervention.
14Given that there are claims to the WSIB that may have been paid, and without further evidence, the CICB denies an award for medical expenses.
Award
15The CICB orders compensation as follows:
Subsection 7(1)(d) Pain and Suffering $5,000.00
Total award and costs $5,000.00
Payment
16The CICB orders the following be paid immediately to the:
Applicant $5,000.00
Dated at Toronto on March 18, 2019
Kevin Cleghorn, Member