Re 1711-03517, 2019 ONCICB 45

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: David Fine Date: March 21, 2019 Indexed as: (Re) 1711-03517

DECISION

Introduction

1The Applicant applied to the Criminal Injuries Compensation Board (CICB) seeking compensation for injuries resulting from a crime of violence. The Applicant is seeking the following forms of compensation: pain and suffering, prescription costs, parking costs at a hospital, treatment expenses, legal costs, medical expenses and loss of wages.

Decision

2In accordance with the Compensation for Victims of Crime Act, RSO 1990, c.C24, as amended (CVCA), the CICB partially grants the Application and awards the Applicant $7,919.45. The 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. I reviewed the entire file which included the application, hospital record created immediately after the incident, x-ray and ultra sound reports, police general occurrence report, victim impact statement, photos taken shortly after the incident, expense receipts, correspondence from the Applicant and a letter from the Applicant’s benefits insurer.

Evidence

4The application states that on [..] at about 3:30 am the Applicant was assaulted in the lobby foyer of his apartment building by two women and a man. The assault arose because he refused them access to the building as he did not recognize them. The Applicant described the assault as stabbing with long finger nails, punching and kicking. The description of the assault is corroborated by the police general occurrence report. There is no mention of a weapon in either the application or the occurrence report.

5In his application and victim impact statement the Applicant states that he suffered a stab wound to his left forearm, a cut inside his mouth, scratches, gashes and cuts to his hands arms, neck, head and chest, a gash over his left eyebrow, injuries to his legs and knees facial bruising, two black eyes, a permanent facial scar, rib pain and a severed rotator cuff. The Applicant also complains of difficulty sleeping, anger, depression, suicidal ideation, fear and a change to his daily life.

6According to the hospital report on the day of the assault the Applicant had a laceration to his left orbital area, a puncture wound to left forearm, left eye hematoma, rib pain, knee pain two back eyes and various bruises and scratches. The hospital record also references an injury to the left shoulder and a partial rotator cuff tear.

7X-rays of the head and left knee were taken on April 22, 2017. The head x-ray revealed a superficial trauma injury but no acute abnormality. The knee x-ray report did not indicate any issues but said that that a non-displaced chip fracture could not be ruled out. However, there is nothing in the file subsequent to the knee x-ray report to suggest a chip fracture was ever found. An x-ray taken of the left shoulder on June 21, 2017 did not show any fracture or bony abnormality. An ultrasound conducted on the same day did show a tear of the supraspinous tendon.

8In his correspondence to the CICB the Applicant stated that he was scheduled for rotator cuff surgery in February 2018 and knee surgery in 2019. It does appear the rotator cuff surgery went ahead and the Applicant needed a sling and brace in early 2018. In his victim impact statement dated March 25, 2018, the Applicant reiterated the physical and mental injuries suffered in the assault and stated that he had surgery for a severed rotator cuff and that he still had pain in both his legs. Emotionally he was still having difficulty. However, the CICB does not have any hospital or medical documents which outline what was involved in the rotator cuff surgery and the progress of the recovery. There is no medical documentation in the file which relates to the possible knee surgery. It does not appear the Applicant sought any treatment for his emotional problems.

9There are no medical reports whatsoever in the file which describe the Applicant’s progress both from a physical and mental perspective after his release from the hospital on April 22, 2017. While the Applicant may have ongoing residual problems both physically and mentally there is no medical evidence to suggest that at present he has serious problems caused by the assault. There is no current photo of the condition facial scar.

Analysis

10There was no conviction in respect of the incident.

11Section 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.

12The Applicant is required to prove, on a balance of probabilities, not only that he was a victim of find a crime of violence but also that the injuries resulted from the crime.

13I find that the Applicant is a victim of a crime of violence and that he suffered injuries and incurred expenses as result. As indicated, the description of the assault in the Applicant’s application is corroborated by the police occurrence report. Further the hospital records dated April 22, 2017 are consistent with the injuries described by the applicant on that day.

14I award $7,500.00 for pain and suffering. In doing so, I have taken into account the medical documentation in the file at the time of the written hearing and the Applicant’s statements in his application victim impact statement correspondence and photos. I have also taken into account that the Applicant was the victim of a frightening assault at his residence at the hands of multiple assailants in which he suffered serious injuries at the outset. I find that the award for pain and suffering is reasonable and appropriate based on the information in the file at the time of the hearing and is consistent with awards to other victims who have experienced similar incidents and injuries.

15With respect to expenses the Applicant claims amounts for prescriptions, parking and a sling and brace. He also makes a claim for legal costs, counselling and loss of income.

16The Applicant must provide reliable evidence to support his claims for:

a. Expenses actually and reasonably incurred as a result of his injury pursuant to subsection 7(1)(a) of the CVCA, and,

b. Income or pecuniary loss incurred as a result of his total or partial disability affecting his capacity to work pursuant to subsection 7(1)(b) of the CVCA.

17The Applicant has provided adequate evidence to verify that the cost of prescriptions and parking were incurred in the amounts of $56.45 and $19.00 respectively. Further, he has provided adequate evidence that the costs of a sling and brace in the amounts of $195.00 and $149.00 that were not covered by benefits, was incurred. Accordingly, I award $419.45 for expenses.

18The claims for counselling and loss of income are denied because there is no documentation provided which supports those claims. The Applicant also made a claim for legal costs incurred to hire a lawyer to deal with an allegation of police terrorism and false criminal allegations. That claim is denied because it is not an expense which is compensable under the CVCA.

19In making the award in this case I am mindful that the CICB does not make awards which are intended to make an Applicant economically whole and are not paid by the wrongdoer as the case would be if the Applicant pursued compensation through a civil action.

Award

20[20] The CICB orders compensation as follows:

Subsection 7(1)(a) Expenses

$ 419.45

Subsection 7(1)(d) Pain and Suffering

$ 7,500.00

Total Current Award

$ 7,919.45

Payment

21The CICB orders the following be paid immediately to:

Applicant

$ 7,919.45