“The agency tells prospective applicants that “nervous shock” — which is a type of pain and suffering under board rules — “is a legal finding, not a medical diagnosis” but requires claimants give medical proof…While the board has denied pain and suffering claims by these mothers, it has routinely paid police officers pain and suffering cash awards after they suffered minor injuries on the job.”
Parents must witness their children’s murder to receive compensation
David Bruser: March 13th, 2011
The provincial agency that is supposed to compensate crime victims has denied “pain and suffering” payments to three grieving mothers because they did not witness the killing of their children.
Liz Hoage, whose 16-year-old son Joey was stabbed to death; Wendy Flanagan, whose daughter Alexandra’s partial remains were found in two places; and Claudette Lalonde, whose bricklayer son Corey was killed while breaking up a fight, have all been told they do not meet the criteria for the compensation.
They all applied to the provincial Criminal Injuries Compensation Board and were rejected in the last few months because the board policy states that a parent must witness the death or come upon the crime scene for the province to pay.
“I think it’s ridiculous,” said Hoage, 45. “To be treated like that is just pathetic. I’m a victim.”
The provincial board was set up to help victims of violent crime and their families with payouts for psychological trauma, funeral costs and other expenses.
In a 2008 report, former Ontario chief justice Roy McMurtry urged the board to change its policy, be more compassionate and relax the criteria. But he was ignored.
“The board is always mindful of the anguish that family and friends of homicide victims suffer,” agency spokesperson Jim Cowan said in an email.
Hoage’s son Joey “Tan Tan” Tanner looked 12 years old but was three weeks from his seventeenth birthday when he was pronounced dead at a Barrie Hospital while Hoage rushed from Hamilton to be by his side. Earlier that morning, he was stabbed three times, once in the kidney, and dumped in a plaza parking lot where his head rested on a curb as he lost blood.
Witnessing the stabbing is “no different than seeing him in that hospital bed, dead. It was awful,” Hoage said. “All the way to the hospital, he was still alive. They were still working on him. I asked to see him after he had passed. There’s a police officer standing over him, saying ‘You can’t touch him because it’s evidence.’ If I had have been on the scene, maybe I could have stopped it from happening.
“I don’t understand the board’s definition. This fund was set up for victims. It should go to victims,” Hoage added, saying that she went unpaid by her employer and spent much money travelling from her Hamilton home during the killer’s trial, who was convicted and sent to prison for life. “I don’t expect the board to pay for my personal loss. You can’t fix my broken heart. But it’s all nervous shock to me. I suffer every day.”
The compensation board says it can pay a maximum lump sum of $25,000 to victims and aims to treat them with “courtesy, compassion and respect” as they seek help with their financial, physical and emotional needs.
But the pain and suffering policy is not only angering and upsetting already traumatized claimants, it is also confusing. The agency tells prospective applicants that “nervous shock” — which is a type of pain and suffering under board rules — “is a legal finding, not a medical diagnosis” but requires claimants give medical proof.
Relatives of murder victims are also eligible for bereavement counselling, financial support if a dependant of the victim and funeral expenses. Hoage’s family was reimbursed funeral costs. Lalonde’s family is applying for funeral and counselling costs.
While the board has denied pain and suffering claims by these mothers, it has routinely paid police officers pain and suffering cash awards after they suffered minor injuries on the job.
In 2009, a Toronto Star investigation reviewed 40 such awards to police officers, including one where a police officer received $10,000 as compensation because he can no longer enjoy gardening, visiting flea markets and collecting glass.
Workplace insurance already compensated these injured officers. The board defended the awards to cops, saying it gives weight to the fact that the officers directly suffered physical violence. In another case, a police officer tore a bicep tendon during a foot pursuit, returned to duty without problems several months later but was distressed that he could not help his pregnant wife while injured. The board awarded him $5,000.
“I don’t agree with it,” Wendy Flanagan said of the payouts to police. “We’re going to have pain and suffering for the rest of our life. Alexandra is always on my mind. My husband had a heart attack after my daughter’s first remains were found. And then he went on early retirement because he just couldn’t go back to work. If that’s not pain and suffering, I don’t know what is.”
Alexandra Flanagan, a Barrie hairdresser, was 33 when she disappeared in 2007.
Crime victim advocate Joe Wamback says he knows of 25 other parents who have experienced similar treatment by the board when applying for nervous shock compensation.
“I’m angry. I do not understand the logic. It is beyond any rational explanation,” said Wamback, who runs the Canadian Crime Victim Foundation. “This province has to do something. This is not a money grab by victims who want to profit from the deaths of their child. They want support from a government that has promised compassion.”
Flanagan said her family has less money coming in after her husband Gerry had to quit his job, and she would have used a provincial payout to help fill the gap.
“No, I didn’t see any remains. But I don’t know how my daughter was killed,” said Flanagan, who said parts of her daughter’s body were found 5 km apart. “Was she tortured? Who killed her? Her bones were sawed through. It’s as bad as you can get. I have to live with this every day.”
Alexandra was memorialized at a church mass. There is no grave or headstone. The bones sit in a Toronto forensics lab while the case remains unsolved. “We don’t have a place to visit her,” Flanagan said.
The board says it sets the criteria for nervous shock by relying on rules established in court cases.
“The legal definition of the injury … has been evolving since the early 1900s, as the result of courts deciding particular cases,” Cowan said. “The current Board, having considered its enabling legislation and recent court cases, is adhering to the law as interpreted by the courts.”
Cowan pointed to two Superior Court cases from 2010 that “confirmed” the criteria for a successful nervous shock claim.
Wamback says the board’s reliance on these court cases is wrong. He said he has sent letters to government leaders pleading for a policy change. “Why they would use a definition (of nervous shock) that has evolved through insurance lawsuits to apply to a parent of a murdered child is beyond me.”
When Hoage initially applied for nervous shock in 2007, “they really made me believe they were going to pay pain and suffering. It was misleading.” The board did not hold a hearing to consider Hoage’s request until October 2010. “As it went along over a period of three years, the rules kept changing. Initially, they never said anything about being at the scene of the crime.”
The board said that in the last two years close to 900 people applied for nervous shock payments, and the board handed out 500 awards. The board would not say the amount typically awarded or the reasons for the awards. In 2009-10, the agency awarded a total of $26 million in lump sum payments under the general “pain and suffering” category, to applicants affected by assaults, murders and other crimes.
Since 1971, the board has provided compensation for victims and family members of deceased victims if they qualify under the Compensation for Victims of Crime Act.
While claimants like Hoage and Flanagan have been hamstrung by the board’s rules, pain and suffering awards should “serve as an important gesture of societal compassion and acknowledgment of victimization,” according to former chief justice Roy McMurtry, who did a review of the system.
In the 2008 report, McMurtry said the policy should be expanded to include something he described as emotional injury.
“It is abundantly clear that victims of violent crime very often suffer significant emotional injury,” McMurtry wrote. “However, such emotional injury does not necessarily mean that they have suffered the kind of psychiatric injury that mental or nervous shock connotes. ‘Emotional harm’ should replace ‘mental or nervous shock.’ “
In a letter sent Jan. 11, the board told Claudette Lalonde, whose 32-year-old son Corey was killed in late 2009, that her claim did not meet the legal definition of “nervous shock.”
“They told me that I wasn’t entitled, that I wasn’t there when he died,” Lalonde said from her home in Sudbury, just before heading out to lay flowers on her son’s grave in Espanola. “He died at the hospital and I was there at the hospital. But I didn’t see him because they wouldn’t let me in the room. The (board is) talking in riddles.
“They degrade my son by what they are doing. How can they say I don’t have nervous shock? This is senseless.”
Brenda Heaton was Corey Lalonde’s fiancée at the time of the incident and held the dying man in her arms. She did not apply for the award because she said she did not know about it until the Star told her.
“If anyone should get compensation, Claudette should. That’s her son,” Heaton said.
Liz Hoage is not the only one in her family to have a nervous shock claim rejected. Joey’s sister Lacey was 12 at the time of the killing. Now 16, she is the mother of a 15-month-old, Zoey.
Compensation board documents show the agency heard Lacey’s grades slid after the murder, that she got into trouble with the law. The board had a report from Lacey’s doctor, who said she suffered psychological injuries.
A social worker from Lacey’s school reported Lacey suffered “emotional harm,” depression, inability to sleep, low self-esteem, anxiety, mood swings, social isolation.
While the board’s rejection letter mentioned witnessing the crime as a requirement, it also said there was not enough evidence to conclusively show Lacey suffered a significant psychological injury.
“They clearly think we’re not victims,” Lacey said.
“But if they had to live our lives, they would think different.”
David Bruser can be reached at
email@example.com or (416) 869-4282
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