(Re) 1906-03104, 2020 ONCICB 27

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: David Fine

Date: November 24, 2020

Indexed as: (Re) 1906-03104

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 compensation for pain and suffering.

Decision

2In accordance with the Compensation for Victims of Crime Act, R.S.O. 1990, c.C24, as amended (CVCA), the CICB denies the Application. 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.

Evidence

4The Applicant is a special constable at a courthouse. In his application, the Applicant stated that on March 20, 2018 he was physically assaulted by a prisoner (the “Offender”) while preparing to transport him from the courthouse to the local jail. The Applicant grappled with the Offender to subdue him. In the course of the incident the Applicant was punched in the right eye, put in a headlock and was bitten on the upper right arm.

5The Applicant suffered injuries to his right shoulder, right knee, right hand, lower back and neck. He also suffered a black right eye and a bite mark to his upper right arm.

6He attended a hospital immediately after the incident. He was treated for the bite mark at the hospital and was told to follow up with his family doctor with respect to the other injuries.

7The injuries to the right hand, lower back, neck, right eye and bite mark cleared up within a reasonable time. There is no indication in the file of any ongoing effects with respect to those injuries. However, the injuries to the right shoulder and right knee have continued to trouble Applicant up to the present.

8With respect to the right shoulder, the Applicant has considerable pain and his range of motion continues to be affected. With respect to his right knee, he has pain and a limp.

9On June 26, 2018 the Applicant underwent an MRI for his right shoulder. The findings from that procedure were that he had a high-grade partial articular supraspinatus tear, a high-grade partial articular subscapularis tear, a slip tear with extension anteriorly, and a glenoid donor site with loose body in axillary pouch.

10The Applicant underwent surgery on his right shoulder on October 12, 2018. Following the surgery, he attended physiotherapy.

11However, the surgery and physiotherapy have not helped the right shoulder. In addition to the pain and limited range of motion, the shoulder injury has impacted the Applicant’s ability to do his job and his household chores up to the present. He also has difficulty taking care of his personal needs. This injury causes sleep difficulties. An orthopedic surgeon indicates in a medical report that the Applicant is permanently impaired with respect to the right shoulder.

12The Applicant states that he suffered a knee bone bruise. He has had an MRI on the knee but surgery is not required. He says the knee has improved with physiotherapy but he still has a limp.

13The medical reports and the Workplace Safety & Insurance Board (WSIB) records which were provided are consistent with the description of the injuries set out in paragraphs 5-12.

14The Applicant indicated that from a mental perspective, he is suffering from anxiety, depression, and PTSD. He says he has had seen a psychologist but a report from that treatment provider was not produced.

15The Applicant has made an application to the WSIB was awarded compensation for income loss and treatment expenses.

16In an email dated November 12, 2020, the Applicant advised that he has received a Non-Economic Loss award (NEL) from the WSIB for his right shoulder in the amount of $9,800.00 and is waiting for a decision with respect to a NEL award for his right knee. He stated that he believes there will be a finding that his right knee injury is permanent

17The Offender was convicted of assault.

Analysis

18A conviction is conclusive evidence that a crime of violence occurred. As there was a conviction in this case, the Applicant is required to prove, on a balance of probabilities, that his injuries resulted from the crime of violence.

19I find the Applicant’s injuries resulted from the crime of violence. The medical reports and WSIB records corroborate the physical injuries described in paragraph 5-12. Although a therapy or medical report has not been produced regarding the psychological symptoms, I find that the Applicant is suffering from the psychological conditions described in paragraph 14. Given the serious and permanent nature of the Applicant’s right shoulder and right knee injuries and the impact on his work and home life it is likely on the balance of probabilities that the Applicant is having the psychological issues described.

20Therefore, I find that the Applicant was a victim of a crime of violence.

21However, I am required to take into account section 17(3) of the CVCA which reads as follows:

(3) In assessing compensation, the Board shall take into consideration any benefit, compensation or indemnity paid or payable to the applicant from any source other than social assistance.

22I am satisfied that the Applicant received a NEL award from the WSIB for pain and suffering in the amount of $9,800.00 which exceeds the maximum allowable award of $5,000.00 for pain and suffering pursuant to section 19(6) of the CVCA for that type of claim arising out of a single occurrence. The Divisional Court has upheld the CICB’s discretion to deduct an NEL award under section 17(3) (see Cameron v. Criminal Injuries Compensation Board, 2000 30143). Accordingly, I decline to make an award for compensation.

23In making this decision I do not wish to minimize in any way the suffering of Applicant and the impact of his injuries on his work and personal activities.

24This application is dismissed.