The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held via teleconference on December 12, 2005, at the claimant's request. The panel discussed this appeal on the same day.

Issue

Whether or not the time for making an application for compensation should be extended.

Decision

That the time for making an application for compensation should not be extended.

Decision: Unanimous

Background

On July 22, 2005, the claimant filed an Application for Compensation with the Manitoba Compensation for Victims of Crime Program [the program] for a gunshot wound to his ankle that occurred in April of 1976. The claimant noted that he was 14 years old and was going to school when the incident took place. He indicated that he didn't know that he could get compensation for the incident as he lived at a reserve for the past 23 years.

Following an investigation into the case, the claimant was advised by the program's case manager/claims adjudicator that his claim for compensation was ineligible as his application for compensation was not received until August 11, 2005 which was beyond the one-year time limit for applying to the program. On August 17, 2005, the claimant requested that the decision be reviewed in accordance with section 59(3) of The Victims' Bill of Rights (the Bill).

On August 29, 2005, the program's director noted that the Royal Canadian Mounted Police had advised the program that it reviewed all of their available records and could not confirm that the claimant was the victim of a shooting incident in 1976. Based on this information, the director confirmed that the claim did not meet the eligibility requirements of subsection 51(1) of the Bill as set out in the legislation. On October 4, 2005, the manager of the program clarified that the claim was denied pursuant to section 6(2) of The Criminal Injuries Compensation Act (the CICA) as the claim was not filed within the allowed time limit. This decision was appealed by the claimant and a hearing was held via teleconference.

Reasons

This case involves an appeal of the decision of the program director, upholding an earlier decision not to accept an application for compensation, as it was filed after the time period for application has expired. For the appeal to succeed, the panel would have to find grounds to justify an extension. The panel did not find grounds to grant an extension.

Evidence and Argument at Hearing

As noted, the claimant participated in the hearing via teleconference. He made a presentation in support of his request and answered questions raised by the panel.

The claimant listed twenty-two points in support of his request that the time for filing an application be extended. He advised that he only became aware of the program in July of 2005. He believes that he has complied with the requirements of the legislation as he applied within one year of becoming aware of the program.

The claimant informed the panel about the impact of the incident and resulting injury upon his life. He stated that currently it is impairing his ability to work as a carpenter. He answered questions regarding the incident.

Analysis

The panel has considered the claimant's submission and the evidence on the claim file.

Hospital records indicate that treatment was provided to the claimant for a gun shot wound to the left foot on April 6, 1977 (this is contrary to the claimant's application showing a 1976 date). At this time the claimant was 15 years old and was in the care of foster parents. The claimant reached the age of majority (18 years) on July 22, 1979. The claimant advised the panel that he became aware of the program in July 2005 and applied for benefits shortly thereafter.

As the incident giving rise to the claim occurred in 1977, the legislation governing the time to apply for compensation is the legislation as it existed in 1977. The relevant provision is subsection 6(2)(a) of the CICA. This provision provides as follows:

Limitation period

6(2) Except as may be otherwise permitted by this Act, the board shall not make an order for compensation.

(a) where the application for compensation is made after the expiration of one year from the date of the injury or death, as the case may be. 

Requests for extension of the time limit are considered under subsection 51(2) of the Bill which provides:

Extension of time

51(2) The director may, before or after the expiry of the one year period, extend the time for making an application if he or she considers it appropriate.

The program has developed a policy which sets out practice and procedure for implementing subsection 51(2). The policy provides:

"Policy:

An application must be made within one year after the date of the event that resulted in the injury or death, or within one year after the date when the victim first became aware of or ought to be aware of the nature of the injury and its impact."

The claimant did not apply within one year of the injury.

The procedure section of the policy provides that if the claimant is a minor at the time of the injury, an extension will be considered provided that the application was filed within one year of the child reaching the age of majority. The claimant did not apply within this period.

While the physical nature of the injury, a gun shot wound to the left foot/ankle, was evident immediately, the claimant's evidence is that he first noticed problems with his foot "going back three years." At that time he noticed that "…I have no feeling in my, in parts of my left foot." Medical records indicate that the victim started to receive treatment for both feet in 2002. This suggests that the impact of the injury may have been delayed. Even if the panel were to accept that the claimant did not become aware of the impact of the injury until 2002, the evidence establishes that the claimant did not apply within one year of this date.

The panel notes the procedure section of the policy which provides, in part:

"Lack of Awareness

An extension will not be granted based solely on the fact that the applicant was unaware of the program."

Subsection 51(2) allows the panel to extend the time period for application, where the panel considers it appropriate. However, the panel's view is that this should be done in rare cases with compelling reasons to do so. This is not such a case. The evidence establishes that the claimant's reasons for not applying was a lack of awareness of the program. The panel could find no other relevant factors which would justify an extension. The panel concludes that this is not an appropriate case to extend the time for making an application.

The appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
W. Leake, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 8th day of February, 2006