The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 7, 2001, at the request of the claimant. The Panel discussed this appeal on March 7, 2001.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On June 28, 2000, the claimant filed a "Claim for Compensation" form under the Victims of Crime Program for an incident that occurred on June 23, 1999. The claimant described the incident as follows:

"I was sleeping in my car, waiting for my friends to come out from the bar. I woke up by the noise caused by someone vandalizing my car: kicking it and throwing dirt and rocks at it. I got out of my vehicle to see who was doing it. It was [name of the accused]. I told him to stop and that I was not going to give him a ride home like I promised. After that I threw out of my car all his belonging. Next I was attacked by [the name of the accused] with his golf club."

The claimant described his injuries as follows:

"Fractured upper jaw, top front tooth knocked out with the root and part of jaw bone, two neighboring teeth pushed out of place. Bruise on my back. Emotionally I was traumatized by the action of my former friend."

Subsequent file documentation consisted of a "Narrative" report from a police investigator who interviewed two witnesses regarding the circumstances of the evening of June 22, 1999 and the morning of June 23, 1999. The first witness stated that the claimant and the accused were good friends and that the claimant had consumed a lot of alcohol and was intoxicated. The accused was also drinking heavily but was not showing the same effects as the claimant. The witness stated that he received a call from a friend who informed him that the claimant and accused had been in a fight so he called the accused to ask him what had happened. The accused told the witness that he was bugging the claimant for his keys so the claimant threw his keys into the middle of the parking lot. The accused stated that he retrieved his keys and then went back and kicked the claimant's car. The claimant got out of his car and struck the accused in the back with a golf club. The accused stated that it looked like the claimant was going to hit him in the head, so he grabbed the golf club from the claimant with one hand, and punched him in the mouth with the other hand. The accused threw the club into the middle of the parking lot and left as the claimant was bent over holding his mouth.

The witness stated that he also spoke with the claimant two days after the incident. The claimant stated that after the accused kicked his car, he got out of the car and took the golf club and placed it on the ground behind him. He was looking for something else in his car when the accused picked up the golf club and started to beat him with it. The claimant maintained that there was no way a fist could cause the damage to his mouth. The witness indicated that he had seen a bruise on the accused's back, and cuts on his knuckles and believed that the accused's account was truthful.

The second witness indicated that the accused was standing beside the drivers side of the claimant's car and that the claimant was inside the car with the doors locked, and the window was slightly opened. The accused was asking the claimant for his keys, and the claimant was putting him off, telling him to wait five minutes because he wanted to sleep. The accused was poking the claimant with a tree branch through the open window in an attempt to get the claimant to unlock the car door. The claimant did not open the door, and the witness remained talking with the accused for five or ten minutes and then left.

After the incident, the witness stated that he spoke with the accused who told him that the claimant had hit him in the back with a golf club, after which he had punched the claimant in the mouth. The witness spoke with the claimant after the incident and the claimant told him that he had gotten out of his car and that the accused hit him in the mouth with a golf club.

A statement was also obtained from the claimant's mother who went to the home of accused with her ex-husband to ask him what happened. The accused told her that he went to the claimant's car and asked him for his keys. The claimant refused to give him his keys back and he reached for a club in the car and swung it at the accused. The accused said that the claimant hit him in the shoulder so the accused punched the claimant once in the face. The mother stated she could see no scratches, bumps or bruises on the hands of the accused. The accused said the club belonged to the claimant.

A notification was received from the Crown Attorney's office that no charges would be laid against the accused as "there was no reasonable likelihood of conviction given that the victim, [claimant's name] was the actual aggressor. [The accused] had struck the VIC only after he was struck by [the claimant] from behind."

Medical information was obtained from a restorative dentist who saw the claimant immediately after he was discharged from the emergency room at a local hospital on June 23, 1999. Upon examination, the claimant indicated that he was hit with a golf club. The dentist stated that the injuries described indicate a blow with a heavy object on his lower jaw in an upward direction. This was consistent with the claimant's indication that he was hit with a golf club.

On July 5, 2000, a Claims Adjudicator advised the claimant that his claim for compensation was denied pursuant to section 31(d) of the Victim's Rights Act. It was the opinion of the adjudicator that the claimant was the actual aggressor and that the accused only struck him after he had been hit by the claimant. On August 30, 2000, the claimant appealed the adjudicator's decision of July 5, 2000.

On July 19, 2000, an oral and maxillofacial surgeon reported that he initially saw the claimant on June 24, 1999. The surgeon indicated that the claimant was struck in the mouth and tooth #11 was avulsed. Tooth #12 and #21 were both mobile. The teeth were treated by splinting and appeared to have resolved. The surgeon stated that the type of injury sustained by the claimant could not have been caused by a fist but rather by a blunt object. "In my experience, fist injuries may in some cases cause mobility of teeth as well as displacement, but rarely avulse teeth. This injury is more consistent with being struck in the mouth with a solid, blunt instrument."

In a letter dated September 12, 2000, the Manager for Compensation for Victims of Crime confirmed that the claim did not meet the eligibility criteria for compensation under the program due to the fact that the claimant's own actions on the evening in question resulted in his injuries. He noted that statements from the independent witnesses both confirmed that the claimant and the accused were very intoxicated prior to the altercation and it was likely that neither could clearly recall the exact sequence of events that lead up to the dispute. There was a lot of conflicting evidence as to who actually instigated the fight. The manager also noted that the crown attorney reviewed the file and determined that the claimant was the actual aggressor in this situation and advised the police not to proceed with charges against the offender. The manager stated that the claim was filed with the program after the expiration of the one-year time limit for applying which further disqualified the claimant from eligibility within the program.

On October 11, 2000, the claimant appealed the above decision to the Appeal Commission and an oral hearing was arranged.

Reasons

This appeal is pursuant to The Victim's Rights Act of Manitoba (the Act). The claimant is seeking compensation benefits for injuries he alleges were sustained in an assault on June 23, 1999. The issue under appeal is whether or not the claimant has an acceptable claim and whether he is entitled to benefits.

Section 23 of the Act defines eligibility for compensation. The relevant portions of the section read as follows:

23(1)
An application for compensation may be made, in accordance with this Act and the regulations, to the director in respect of a person who is injured or dies as a result of an event that occurs in Manitoba and that

1. is caused by an act or omission of another person that is an offence under the Criminal Code (Canada) specified in the regulations;...

23(2)
For the purpose of subsection (1),

1. it is not a requirement that a person be charged with, or convicted of, an offence in respect of the event that results in an injury or death; ....

In addition Section 31 of the Act will affect the claimant's entitlement to compensation. The section states as follows:

31
Subject to the regulations, the director may refuse to award compensation, or may reduce the amount of compensation payable if he or she is of the opinion that

...

d. the victim's conduct directly or indirectly contributed to the victim's injury or death;

After consideration of all the evidence on the file, and after hearing the evidence of the claimant, his mother and the alleged perpetrator, we find, on a balance of probabilities, that the evidence does not support that the alleged victim has a valid claim to compensation as provided in the Act.

In making these findings, we note the following evidence:

• The claimant alleges that - after spending some time in a bar, drinking with friends - he was sleeping in his car in the bar parking lot, waiting to drive one of his friends home. In attempting to wake up the claimant, the friend angered him and an altercation ensued, in which the claimant alleges he was hit in the mouth with a golf club, knocking out one tooth, loosening two others and damaging his jaw.
• In his written statement accompanying his application for reconsideration of the decision of the Director of the Victims' Compensation Program, the claimant wrote:

  "I got out of the car, bent inside, took the club and threw it outside, still having my head and shoulders in the car . Iwas reaching for his keys, to throw them out too, when I got hit in my back. When I stood up and turned around towards [the alleged perpetrator], I got a fast, strong blow in my face."

• In his testimony before the Appeal Panel, he stated that he got out of the car holding the golf club, he and the alleged perpetrator grappled and, somehow, the perpetrator got hold of the club and hit him in the teeth with it.
• The alleged perpetrator gave a different version of the events. He alleges that after repeatedly asking the claimant to give him his keys, which he had left in the claimant's car, the claimant threw them out into the lot. As he was picking them up, he alleges the claimant struck him from behind, on the shoulder, with the golf club. The alleged perpetrator gave this version of the story to the police in a formal statement, to two friends who were at the bar the same night and in testimony before the panel.
• We note that both the claimant and the alleged perpetrator admitted before us that their memory of the exact events was not perfect, due in part to the passage of time and to the amount of alcohol consumed that evening.
• We also note that the Crown Attorney assigned to the case concluded that no charges should be laid against the alleged perpetrator as the Crown felt "there was no reasonable likelihood of conviction given that the victim was the actual aggressor."

In coming to our conclusion, we did not have to find fault; nor did we have to determine which version of the events is correct. For the claimant to succeed and be eligible for benefits, we had to determine, on a balance of probabilities, that there was an altercation as described by the claimant, which caused the damage for which he seeks redress.

We are unable to come to that determination in this case. We are not saying that the claimant's version of events is not true. There are, simply, too many contradictions in the testimony of both participants to allow us to conclude - even on a balance of probabilities - that the claimant is entitled to compensation. There was, no doubt, an altercation, in which the claimant did suffer some physical damage. However, we find that the claimant played a significant role in precipitating that altercation. Under the terms of section 31(d) of the Act, in such a circumstance, he is not entitled to compensation.

Accordingly, the appeal is not allowed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 22nd day of March, 2001