CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: David Fine
Indexed as: (Re) 1611-00671
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, lost income and expenses.
Decision
2In accordance with the Compensation for Victims of Crime Act, RSO 1990, c.C24, as amended (CVCA), the CICB denies the Application. The reasons for this Decision follow below.
3The Applicant’s file contained the following documents and were reviewed: the application, pleadings in a civil suit, police questionnaire, hospital report, clinical notes and records from a walk-in clinic, clinical notes and records from a family doctor, letter of termination, Record of Employment, expense receipts, and a WSIB report
Hearing
4The Applicant appeared by teleconference and provided oral testimony and submissions.
Evidence
5The Applicant testified that he was assaulted on […] by the Offender who was a co-worker at his place of employment. The Applicant was a detailer at an automotive company. The assault took place at about 11am. The Offender asked the Applicant to help him take out the garbage. The Applicant told the Offender he would help as soon as he finished the job he was working on. The Offender walked away. The Applicant heard him telling another employee that the Applicant was not co-operative and to watch what was about to happen. Suddenly, the Offender came back and attacked the Applicant by punching him in the head and kicking him in various parts of his body. The Applicant says the assault went on for about three minutes. Eventually the Offender stopped and the Applicant was taken to the hospital
6The Applicant advised that he had never had any negative encounters with Offender prior to the day of the assault. About a week before the assault he had noticed that the Offender had been acting strangely and told his employer about it. The Applicant later found out that the Offender was on drugs at the time of the assault.
7The Offender was charged with and entered a plea of guilty to aggravated assault.
8The Applicant stated that he suffered a concussion, a swollen and bruised jaw, neck pain, bruises to his ribs chest and legs. He was bothered by headaches and dizziness. He also has experienced anxiety, an inability to concentrate and is fearful.
9The Applicant testified that all of his physical injuries except for headaches cleared up after about two months. He continues to have headaches which are only triggered by loud noises. He tries to avoid loud noises and takes pain killers when necessary. He continues to have the emotional symptoms
10The hospital and walk in clinic records and the family doctor’s clinical notes and records up to December 2017 corroborate the Applicants description of his injuries. The Applicant has not sought any treatment for his emotional issues. He has not had any treatment for his headaches except to visit his family doctor from time to time
11The Applicant said he took a few days off work but his employer continued to pay him. The Record of Employment indicates the Applicant was paid up until April 20, 2015. By a letter dated April 20, 2015 the Applicant was fired without notice. He had been working at the business for less than three months. No reason for the termination was given in the letter. However, the Applicant advised that he was told by the business owner’s son that he was fired because he hired a lawyer to sue the business in connection with assault. The Applicant testified that had he not been fired he would have been able to continue working. He was unemployed for one month after which he obtained a job with another automotive company. He did not receive Employment Insurance benefits or any other income during the month he was without work. The Applicant claims lost income for the one month he was off work. Although it is not entirely clear from the evidence from the employer it appears the Applicant’s net income was about $45 a day.
12The Applicant was able to obtain new employment and continued to work at the new job until October 2018 when he says he had to stop working because of the injuries from the assault. He has been collecting Employment Insurance benefits since then. The applicant claims a loss of income following October 2018 to the present. The Applicant has not produced any documentation with respect to this loss of income claim.
13The Applicant claims $70 for the cost of obtaining medical records.
14The Applicant commenced a civil suit on March 7, 2017 against his employer and the Offender as a result of the assault for compensation for his injuries and lost income. The lawsuit was settled in November 2018 for $8,500.00. The Applicant’s net recovery was $5,500.00. The Applicant was unable to provide any information as to how the $5,500.00 was apportioned. The Applicant also recovered $2,500.00 from the Offender as a result of a restitution order made at the time of sentencing in the criminal case.
15Through his Lawyer, the Applicant submitted that in assessing the award for pain and suffering the CICB should consider that he suffered serious injuries that have significantly impacted his life He further submitted that his loss income claim for the month after April 20, 2015 should be recognized because the termination letter gave no reason for the firing. Also, notwithstanding the lack of documentation, the loss of income after October 2018 should be recognized.
Analysis
16With respect to the incident involving the Offender, section 11 of the CVCA provides that proof of a conviction shall be taken as conclusive evidence that the offence has been committed. Accordingly, the Applicant need not prove that an offence has taken place. However, he must still establish that he suffered injuries as a result of that offence to be compensable as a victim of a crime of violence as required by section 5(a) of the CVCA.
17At the outset of the hearing the Applicant was alerted to section 17(3) of the CVCA which provides that “in assessing compensation the CICB shall take into consideration any benefit, compensation or indemnity paid or payable to the Applicant from any source other than social assistance.”
18The 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
b. Income or pecuniary loss incurred as a result of his total or partial disability affecting his capacity for work pursuant to subsection 7(1)(b) of the CVCA.
19Based on the Applicant’s oral testimony and the fact of a conviction of the Offender for aggravated assault the CICB finds that the Applicant was a victim of a crime of violence. The hospital and walk in clinic records and the family doctor’s clinical notes and records corroborate the Applicants description of his injuries and the CICB finds that the Applicant was injured as a result of the assault.
20The CICB assesses the Applicant’s award for pain and suffering at $5,000.00. In assessing the award for pain and suffering the CICB has taken into account the serious nature of the Applicant’s injuries at the outset and the fact that he was the victim of a random and sudden attack by a co-worker at his place of employment. The CICB accepts that the Applicant may have some ongoing residual issues but there is no medical evidence to indicate he has serious problems.
21However, given that the Applicant received money on account of injuries totaling $8,000.00 from a settlement in the civil suit and payment in connection with a restitution order. The CICB is obligated to take these monies into account in accordance with section 17(3) of the CVCA. Since the monies received by the Applicant exceeds the amount of compensation assessed by the CICB, the CICB declines to make an order for compensation for pain and suffering.
22The CICB denies the claim for lost income for the period April 20, 2015 to May 20, 2015. The Applicant did not stop working because of his injuries from the accident. Rather, his evidence was that he was told he was fired because he had hired a lawyer to pursue a civil suit. The Applicant admitted that he would have been able to continue working if he had not been fired.
23The CICB also denies the claim for lost income for the period after October 2018.The Applicant has not provided any documentation from his employer regarding the stoppage of work or particulars of the Applicant’s income. Further, there is no medical evidence verifying a disability from the assault at that time. Also no particulars were produced with respect to Employment Insurance payments.
24The CICB assesses the expense claim for the cost of medical records at $70.00 as the Applicant has provided verification that he paid that amount.
Award
25The CICB orders compensation as follows:
Subsection 7(1)(a) Expenses
$ 70.00
Payment
26The CICB orders the following be paid immediately to:
Applicant
$ 70.00
Dated at Toronto on April 9, 2019
David Fine, Board Member