(Re) 1804-01483, 2019 ONCICB 88

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicators: Louise Charette and Keith Forde

Date: May 27, 2019

Indexed as: (Re) 1804-01483

DECISION

Introduction

1This application is the subject of a request for a review of an Order by a single member, heard by the Criminal Injuries Compensation Board on December 28th, 2018 by way of a written hearing.

2This application is heard pursuant to Section 10(1) of the Compensation for Victims of Crime Act, RSO 1990 c.24, as amended, the "Act". The relevant portions of section 10 read as follows:

10 (1) Where an application is heard by a single member of the Board under section 9, the applicant or the Minister may, within fifteen days after service of the decision of the member, require a hearing and review by the Board and the Board shall fix a time and place for the hearing and shall at least ten days before the day fixed cause notice thereof to be served upon the parties to the proceeding.

(3) The hearing shall be conducted and the jurisdiction of the Board shall be exercised by at least two members of the Board and the member whose decision is being reviewed shall not sit on the review.

(4) After a hearing and review by the Board under this section, the Board shall make its order in accordance with this Act and its order supersedes the order of a single member made under section 9 that is the subject of the hearing and review.

3Rule 19.2 of CICB's Rules of Procedure states:

An applicant may request a review of the decision of a single member on the grounds that the decision contains a serious error of law or an unreasonable exercise in discretion.

Issue

4The issue before the panel is whether the CICB decision dated December 28, 2018 contains an error of law or an unreasonable exercise in discretion.

5In a section 10 review, the Panel will only consider the evidence available at the time of the hearing and new evidence will only be considered when all of the following three circumstances are met:

a. The evidence could not have been obtained earlier with reasonable diligence on the part of the Applicant;

b. The evidence would probably have an important influence on the result of the case; and;

c. The evidence is apparently credible.

Applicant's Grounds for review

6In the request for review dated April 5, 2019, the Applicant suggests the award for pain and suffering does not adequately represent the extent of his injuries. He argues that the decision was made without all the information being available at that time and therefore, the single member did not fully take into consideration his future injuries.

7In support of his claim, the Applicant submitted a worker summary report dated April 22, 2019 which confirms that during the initial surgery he had right shoulder rotator cuff decompression repair and biceps tenodesis. As a result of sudden significant worsening of his symptoms, it was determined that he had a complete biceps tendon rupture. During the surgery in March of 2019, the Applicant had right shoulder revision rotator cuff decompression repair and subpectoral biceps tenodesis. At the time of this assessment, it was determined that further treatment was needed to help with his recovery and return to work. It was recommended he wear a splint for four to six weeks and that he should resume physical therapy following post-surgery rehabilitation.

8The Applicant further noted that since the surgery, he has experienced ongoing issues with pain and confirmed that he has had to undergo months of additional physiotherapy. He says he is unsure if he will regain full mobility in his shoulder. The Applicant also wished to clarify that this injury is not related to his previous back injury from a Motor Vehicle Accident and that he fails to see how his diagnosis of PTSD is related to the current claim.

9In support of his claim for compensation for medical expenses, the Applicant submitted additional receipts for therapy. He advised the Board that the majority of his medical expenses are covered by WSIB.

10The Applicant also refers to a loss of income.

Summary of previous decision

11At the Documentary Hearing held on December 28, 2018, the single member of the CICB determined that the Applicant was a victim of a single crime of violence and found him to be a victim within the meaning of section 5(a) of the CVCA. The single member awarded $5,000.00 for pain and suffering however denied the claim for compensation for medical expenses.

12The Applicant originally applied to the CICB for compensation relating to an assault which occurred during the course of his employment as a peace officer for a municipal bus transit service. The Applicant was injured while assisting another peace officer who was attempting to restrain an alleged offender. As the Alleged Offender fought back, the Applicant was thrown across the bus and had his back slammed against the ceiling and then into a metal pole.

13The member noted that the injuries and consequences to the Applicant were serious and extensive and included; a shoulder injury which required future surgery as well as a likelihood of a lengthy period of rehabilitation for his shoulder following surgery, decreased abduction in shoulder, significant neck and back pain as well as neck strain, need for pain medication and massage therapy as well as ongoing need for physiotherapy, difficulties lifting heavy objects, sleep disturbances, inability to engage in exercise and usual activities for extended periods, weight gain, exacerbation of symptoms associated with previous PTSD and anxiety.

14In assessing pain and suffering, the member considered the nature and length of the assault resulting in significant physical injuries with an extended time for his recovery. In addition, the member noted the following:

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 repercussion 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.

15In assessing the claim for medical expenses, the single member noted that the Applicant did not cite any specific medical expenses in his application nor did he provide any receipts/invoices to support his claim. It was mentioned that the Applicant had made reference to a claim being made to the Workplace Safety and Insurance Board ("WSIB"). The member anticipated that such expenses may have been paid by that source and without having further evidence, denied this claim.

Analysis and Decision

16The purpose of this Section 10 Review is to review the sufficiency of the decision dated December 28, 2018. The Decision will not be interfered with unless the Applicant demonstrates a failure of the single member to properly exercise discretion or there is an error in law.

17The panel reviewed and considered all of the documents in the Applicant's CICB's file, including the information which the single member referred to and which was relied on in considering the amount for pain and suffering. As well, the panel reviewed and considered the additional document submitted by the Applicant with respect to his second surgery. This information only became available following the hearing.

18We conclude in this case the new evidence provided by the Applicant does not meet the test under section 10. Although the report was not available at the time of the hearing and that it is in fact credible, this new evidence does not have an important influence on the result of the case as the Applicant's future pain and suffering was taken into consideration by the single member.

19The Applicant argues that the Decision of the single member did not take into consideration his future surgery and injuries. Despite the fact that the member notes that the "exact nature of the Applicant's shoulder issue and its future functioning might become apparent following surgery but that the CICB did not have that information at the time...", the panel is of the view that the single member did recognize that there would be future issues after the surgery in the award for pain and suffering. Specifically, the member indicated "the injuries and consequences to the Applicant were serious and extensive and included a shoulder injury which will require future surgery as well as a likelihood of a lengthy period of rehabilitation for his shoulder following surgery".

20Having considered the circumstances in this case, we find that the amount for pain and suffering awarded by the single member to be reasonable under the circumstances and that the amount of compensation falls within the range of compensation typically awarded in cases such as this one.

21The panel also considered the Applicant's request for review for the denial of compensation for medical expenses. The original denial of medical expenses was based on the fact that no receipts or invoices were provided and also that the Applicant advised that WSIB paid for some amounts.

22The Applicant recently submitted some additional medical receipts which pre-date the hearing. These receipts are not being considered at this time as they would have been available prior to the hearing. The Board only accepts new evidence at a review if the information could not have been obtained earlier with reasonable diligence on the part of the Applicant

23. Although the Applicant submitted receipts post-hearing, the Board also required proof of insurance coverage through WSIB to determine what was paid from that source. In light of the fact that documentation was not provided in that respect, we are unable to properly assess the exact expenses incurred. As a result, the denial of the Applicant's claim regarding medical expenses is neither an error in law nor an unreasonable exercise of discretion.

24The Applicant also referred to a loss of income in his request for review. It should be noted that this was not claimed in the original application therefore cannot be considered in this review.

25The original order remains in effect.