(Re) 1712-04061, 2019 ONCICB 72

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicators: Julie Lassonde and Pamela Arnott

Date: April 17, 2019

Indexed as: (Re) 1712-04061

DECISION

Preliminary Matter

1At the beginning of the hearing, the Applicant’s representative asked the panel for permission to make an audio recording of the hearing with his phone. The panel granted permission to record the hearing exclusively for the purpose of supplementing his notes. This recording or a transcription of the recording may not be shared with any other party, published in any form (including on social media) or used for any purpose other than the proceeding before the Criminal Injuries Compensation Board (CICB). This recording is not part of the CICB record.

Introduction

2The Applicant applied to the CICB seeking compensation for expenses, loss of income, pain and suffering for injuries resulting from an assault that occurred in July 2017.

Decision

3In accordance with the Compensation for Victims of Crime Act, RSO 1990, c.C24, as amended (CVCA), the CICB grants the Application and awards the Applicant $9,600.00. The reasons for this Decision follow below.

4The Applicant appeared in person and provided oral testimony and submissions. He was accompanied by his brother who acted as his advocate.

5Prior to the commencement of the Hearing, the Panel advised the Applicant of the potential difficulties that this application faced in respect to section 17(1) and section 17(2) of the CVCA, which read as follows:

17(1) In determining whether to make an order for compensation and the amount thereof, the Board shall have regard to all relevant circumstances, including any behaviour of the victim that may have directly or indirectly contributed to his or her injury or death.

17(2) The Board may, in its discretion, refuse to make an order for compensation or ordered a reduced amount of compensation where it is satisfied that the applicant has refused reasonable co-operation with, or failed to report promptly the offence to, a law enforcement agency.

6The Applicant confirmed that he understood the meaning of the above sections and indicated that he was prepared to proceed with the Hearing.

Evidence

7At the time of the assault, the Applicant was an inmate in the Quinte Correctional Facility serving a sentence for assaulting a peace officer, resisting arrest, failure to comply with sex offender registry conditions and failure to comply with probation conditions. The Applicant was designated a long-time offender for sexual offences and completed his sentence in regards to these offences in 2013-14.

8He testified that he was in the exercise yard when the Offender approached him with an improvised blade. No guards were in the yard although they were in adjoining areas and saw the events. The Applicant was stabbed with the blade and punched in the body and arms. He lost his shoes at some point and was barefoot on the concrete. A second offender got behind the Applicant and pushed him to the ground. The Applicant believes that it took 10 minutes for guards to enter the yard and stop the fight. In the presence of the guards, the Offender sucker-punched the Applicant in the jaw.

9The Applicant was asked to clarify whether he had been an active participant in the fight. He indicated that he was defending himself and was yelling for help during the fight. He believes that the fight occurred because the Offenders wanted to take over some of the Applicant’s responsibilities in the kitchen, which were considered privileges. The Applicant testified that he did not know either of the Offenders prior to this incident.

10The Applicant was questioned about his criminal record. He was incarcerated for charges of resisting arrest and breaches of probation. While he had been previously subject to a long-term supervision order, this order was not in force at the time of this incident.

11The Applicant was asked whether any charges had been brought in relation to this incident. He indicated that no charges were brought against him but that the two Offenders were convicted of assault charges against the Applicant.

12The Applicant testified that he had multiple stab wounds which have left noticeable scars on his arms and body. These scars are a daily reminder of the incident. The Applicant testified that he had a dislocated right shoulder. He was treated immediately for that dislocation and testified that he had full range of motion by the time of his release. He testified that he had numerous pain medications and cortisone injections to manage the pain in his shoulder. The Applicant is seeking 6 months of massage or physiotherapy for this injury which was recommended by a registered massage therapist. At the time of the hearing, the Applicant had begun to avail himself of the interim funding made available by the CICB under section 14 of the CVCA. No receipts or written reports from this interim award were provided to the CICB.

13The Applicant testified that he had injuries to his feet from being barefoot on the rough concrete. He has scars on his feet from the extent of these soft tissue injuries. He also developed infections in the injuries to his knees which were not treated promptly in the institution. These infections have left scars and discolorations on his legs.

14The Applicant testified that he had injuries to his teeth from being punched in the jaw. He had one tooth (#25) removed while in custody but the removal was incomplete. He indicated that his estimates to the CICB about the cost of future dental treatment were based on conversations with the dentist. The Applicant was asked to provide estimates for his dental costs from his dentist within 2 weeks of the oral hearing.

15The Applicant is also seeking an award for prescription costs but no estimates, reports or receipts were provided to the CICB in that regard. The Applicant is also seeking counselling from the CICB and travel to treatment which is approximately 26 kms one way.

16In regards to future loss of income, the Applicant testified that his injury to his shoulder has impacted his return to work as a painter as he is limited in the amount of weight he can carry as well as his endurance in his right shoulder.

Analysis

Crime of Violence

17A conviction is conclusive evidence that a crime of violence occurred. As there were convictions in this case, the Applicant is required to prove, on a balance of probabilities, that his injuries resulted from the crime of violence.

18We find the Applicant’s injuries are consistent with the crime of violence as it is described in the guards’ reports and the Applicant’s oral evidence. We find that those injuries include a dislocated right shoulder, damage to tooth #25 requiring its removal, and permanent scars to his body, arms and legs.

Section 17

19Section 17 of the CVCA requires the CICB to consider whether:

1. the Applicant’s behaviour may have directly or indirectly contributed to the injuries.
2. the Applicant refused reasonable cooperation with, or failed to report the incident promptly to a law enforcement agency.
3. any benefit, compensation or indemnity was paid or is payable to the Applicant from any source other than social assistance.

20In regards to section 17(1) of the CVCA, the Board is satisfied that the Applicant’s behaviour did not contribute to his injuries. The Applicant testified that this fight arose as a result of a disagreement about privileges or additional work in the prison. The evidence also shows that the Applicant’s actions were self-defence in a fight against two other individuals. Finally, the Board is satisfied that the nature of the Applicant’s convictions does not preclude him from receiving public funds for an assault while in prison.

21It is clear that sub-sections 17(2) and (3) do not have any bearing in this application. The Applicant complied with law enforcement during this incident. The Applicant indicates that he has received no other benefit or indemnity in relation to his injuries. Having considered all the relevant circumstances we are satisfied none of the section 17 factors are relevant to this Application.

Compensation

Pain and Suffering

22In assessing the claim for pain and suffering the CICB considered that there were multiple attackers and the extent of the Applicant’s injuries. We award him $6,000.00 for pain and suffering.

Expenses and Income Loss

23The Applicant must provide reliable evidence to support the claims for:

• expenses actually and reasonably incurred as a result of injury
• income or pecuniary loss incurred as a result of his partial disability affecting his capacity for work
• pecuniary losses resulting from his injury and any other reasonable expense that the CICB considers is reasonable

24The Applicant's claim for treatment expenses is awarded as follows:

Counselling/Therapy

25As the Applicant intends to enter into therapy in the near future the CICB authorizes up to $1,200.00, exclusive of any applicable taxes, for physiotherapy, massage therapy, chiropractic treatment, or counselling. This total amount of $1,200.00 includes the amount previously awarded under section 14 of the CVCA and adds a new amount of $500.00.

26The CICB awards up to $100.00 for each therapy session and up to $125.00 for each therapy session conducted by a registered psychologist. The CICB does not provide compensation for therapy sessions covered by an applicant's employment or insurance benefits.

27Payment is 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.

28Therapy expenses incurred between when the Applicant submitted his final documents to the CICB and when he receives this Decision will be deducted from the pre-authorized amount if an invoice and confirmation of treatment provider's professional status is provided.

29The CICB has considered the Applicant’s claim in respect to dental costs. The Applicant has provided the CICB with estimates for $2,350.00 for the cost to remove tooth #25 and $3,930.00 for the cost to replace it with an acrylic post and crown as well as a receipt for the cost of a dental appointment required to produce this estimate. In light of the evidence, the CICB will award dental costs in relation to tooth #25.

30The CICB does not normally pay for acrylic implants and asks applicants to find less expensive options. The Board also notes that the estimates include numerous miscellaneous codes for incidental costs. In light of the evidence that tooth #25 was fractured and needs to be removed, the CICB finds it reasonable to make a contribution of $3,600.00 for the cost of future dental treatment including $150 to reimburse the cost of the dental appointment to obtain the estimate.

31The Applicant’s claim for loss of income at the time of the incident is denied as he was not employed at the time of the incident. The impact of his injuries on his future loss of income has been considered in the award for pain and suffering.

32The claim for travel to treatment is denied. It is the CICB’s practice to only consider travel to treatment costs when an Applicant is required to travel more than 40 kilometers each way (80 kilometers round trip) outside of his place of residence for treatment. The CICB finds no compelling reason to deviate from that practice under the circumstances. Since the Applicant was not required to travel more than 40 kilometers each way for his treatment/counselling sessions, these expenses are denied.

AWARD

33The CICB orders compensation as follows:

Subsection 7(1)(a) Expenses (Section 14) Award $700.00 Subsection 7(1)(a) Future Pre-Authorized Expense $500.00 Subsection 7(1)(a) Expenses $3,600.00 Subsection 7(1)(d) Pain and Suffering $6,000.00

TOTAL AWARD (AND COSTS) $10,800.00

Less: Section 14 Award – already paid/authorized $700.00 Less: Preauthorized treatment costs $500.00

TOTAL CURRENT AWARD $9,600.00

34THE CICB ORDERS the following be paid immediately to the:

Applicant $9,600.00