The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on December 14, 2004, at the claimant's request.

Issue

Whether or not the application for compensation is acceptable.

Decision

The worker is not banned from submitting a claim for compensation arising from an alleged incident that occurred in 1971.

Decision: Unanimous

Background

On July 19, 2004, the Manitoba Compensation for Victims of Crime Program (the program) received an application for compensation from the claimant with respect to "ongoing sexual abuse" which occurred between 1968 and 1974.

In a decision dated July 23, 2004, the program's acting manager denied the claim for compensation based on subsection 51(1) of the Victims' Bill of Rights which states:

"Subject to subsection (2), an application for compensation must be made within one year after the date of the event that results in the victim's injury or death, or within one year after the date when the victim becomes aware of or knows or ought to know the nature of the injuries and recognizes the effect of the injuries."

In this particular case, the acting manager noted that the claimant reported the incident to the police in 2000 but did not submit her application to the program's office until July 19, 2004. In September 2004, the claimant requested reconsideration of this decision contending that she was confused and upset and was unable to deal with the paperwork at the time.

On September 27, 2004, the program's acting director determined that the decision to deny the claim was correct, however, the reason for denial was incorrect. The acting director noted that the dates of abuse that the claimant provided to the program (1968 to 1974) was different from the dates noted on the police report which was 1965 to 1967. These dates (1965 to 1967) predated the existence of any legislation that provided compensation to victims. Specifically, a crime that occurred prior to July 16, 1970 could not be considered for compensation pursuant to Section 25 of the Act. In reaching this decision, the acting director relied on a Brief which was filed by the Crown Counsel for the Department of Justice in response to a 1998 Court of Queen's Bench case. On November 30, 2004, the claimant appealed this decision to the Appeal Commission and a non-oral file review was arranged.

Reasons

The issue before us was framed as "Whether or not the application for compensation is acceptable". We have considered the decision made on behalf of the program by the acting director and have concluded that the issue is "whether the claimant is barred from pursuing a claim for compensation."

This claim arises from allegations by the claimant that she was sexually abused by her physician over a period commencing in the mid 1960's and continuing until 1971. The claimant reported the incidents to the police who prepared a report. The police report notes that the alleged abuse occurred when the claimant was 16 or 17 years old. This would place the incidents in the 1965 to 1967 period. This period predates the existence of the criminal injuries compensation program which came into existence in Manitoba on July 16, 1970 under The Criminal Injuries Compensation Act (the Act), the forerunner to the current Victim's Bill of Rights.

On behalf of the program, the acting director determined that the worker could not submit a claim for compensation because the incidents which form the basis of the claim pre-dated the existence of the Act. In the decision, the acting director relied upon the police report which refers to the abuse of the claimant occurring from 1965-1967. As these dates predated the existence of the Act (July 16, 1970) the claimant could not apply for compensation.

We disagree with the dates that the acting director has relied upon in making the decision. We note that the claimant specifically complained of abuse occurring at the time that she underwent surgery to her knee. There is independent evidence in the form of hospital records which confirms that the claimant underwent surgery to her knee on August 25, 1971. This incident occurred after July 16, 1970, the date on which the Act became effective. Accordingly we find that the claimant is not barred from making a claim for compensation.

We have not, in allowing this appeal, made a determination on whether the claim is acceptable or whether the alleged abuse occurred on the dates noted. Our decision is limited to determining that the claimant is not barred from submitting a claim for compensation.

It is available for the claimant to pursue a claim for compensation based on the alleged incident that occurred in August 1971. Should the claimant proceed with her claim, the program will adjudicate the claim according to the applicable legislation and policies, including whether the claim has been filed within the time limits permitted by the applicable legislation.

The appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of January, 2005