Decision #03/00 - Type: Victims' Rights
Preamble
An Appeal Panel hearing was held on March 20, 2000, at the request of the claimant. The Panel discussed this appeal on several occasions, the last one being June 6, 2000.
Issue
Whether or not the claim is acceptable.
Decision
That the claim is not acceptable.
Background
On October 7, 1999, the claimant submitted an application for benefits indicating that he was stabbed at the bottom of his right eye on September 18, 1999. He stated, "I didn't know I was injured until I woke up at the hospital..."
Police report 99-195801 indicated the following:
- on October 7, 1999, the claimant went to 1085 Main Street indicating that he had been stabbed in the right eye on September 18, 1999. The claimant indicated that he was seeing a specialist and was making a criminal injuries compensation claim and required an incident number for the claim.
- the claimant could not recall what happened to him or at least very little. He remembered only waking up in the emergency room on September 18th with a doctor telling him he was stabbed in the eye. The claimant indicated he did know who stabbed him, what he had been doing or where he had been. He remembered that he was heading to his mother's place.
- the writer of the report indicated that he had checked police records for September 17th, 18th, and 19th, finding nothing. He also contacted all the city hospitals and only the Health Sciences Centre had a person with the claimant's last name but it was not anywhere near September 18, 1999. The writer noted that the claimant had been involved with a female in which charges had been brought including a recent incident where she pulled a knife on him. The writer indicated, "it could be that he does not want to have her charged and thus the memory loss."
A medical report was obtained dated October 24, 1995. The physician noted that the claimant was seen initially by a doctor at the Remand Centre. No date was given. When assessed on October 5, 1999, the physician described the cause of injury as "stabbed in right eye Sept. 18/99 - did not want to wait for medical attention same day." The diagnosis was a blind right eye.
On October 25, 1999, a claims adjudicator wrote to the claimant to advise that his claim had been denied. "Neither the Winnipeg Police Service or any hospital in Winnipeg has any record of an incident on or about the 18th of September wherein you were stabbed in eye. We are unable to approve your claim as there is no evidence to support the alleged assault."
On December 12, 1999, the claimant requested reconsideration of the above decision. The claimant advised that he had lost all sight to his right eye on account of being stabbed. He stated he was unable to continue roofing as a result of his vision, and that he will have to undergo a number of operations to his right eye. He was also unable to obtain a driver's license because his sight was obstructed. He stated he suffered from headaches and had become clinically depressed.
In a subsequent letter dated December 16, 1999, the Director wrote to the claimant indicating that he had no choice but to uphold the initial decision to deny the claim. The Director referred to police report 99-195801. According to this report, the Director indicated there was no evidence that a criminal incident had occurred. "You could not recall the incident at all. Consequently, it is possible that your injury was the result of an accident."
On January 11, 2000, the claimant appealed the above decision to the Appeal Commission. On his application to appeal, the claimant indicated he was able to obtain the name of the person who inflicted his injury. On March 20, 2000, an Appeal Panel hearing was conducted. Following the hearing and discussion of the case, the Panel requested additional information from the Royal Canadian Mounted Police in Arborg, Manitoba, the Winnipeg Ambulance Service and medical information from a physician who saw the claimant in early October 1999.
On May 16, 1999, the Panel met to further discuss the appeal and the additional information that was obtained. Following the discussion, the Panel requested additional information from the Winnipeg Police Service. This information was later received and the Panel met on June 6, 2000, to render its final decision.
Reasons
This appeal is pursuant to The Victim's Rights and Consequential Amendments Act of Manitoba (the Act). The claimant is seeking compensation benefits for injuries he alleges were sustained in an assault on the morning of September 18, 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
- is caused by an act or omission of another person that is an offence under the Criminal Code (Canada) specified in the regulations;...
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
- the event that resulted in the victim's injury or death was not reported to law enforcement authorities within a reasonable time after it occurred;
- the applicant has not assisted law enforcement authorities to apprehend or prosecute a person whose activities resulted in the victim's injury or death;
- the victim's injury or death occurred while participating in a criminal offence;
- the victim's conduct directly or indirectly contributed to the victim's injury or death; or
- the applicant has not provided information requested by the director, or in the form requested by the director, within a reasonable time after the request was made.
The claimant has alleged that he was the victim of an assault on September 18, 1999 when he was stabbed in the right eye as a result of which he is now blind in his right eye and claims that he should be compensated for his loss.
After consideration of all the evidence on the file given at and obtained during the hearing process, we find that the evidence does not support, on a balance of probabilities, that an event occurred, as described in the Act, that would entitle the claimant to compensation.
In an initial statement to the police on October 7, 1999 some three weeks following the alleged incident, the claimant indicated that he had no recall of what happened and that he was not aware of anything until he woke up in the hospital and was informed he had been stabbed in the eye. At that time the claimant indicated that he had no knowledge of what happened or who stabbed him.
The evidence indicates that the claimant later attended a rural detachment of the RCMP on January 11, 2000, to give further information about the incident, approximately four months after the alleged assault. At the time of the subsequent statement the claimant named his ex common-law spouse as a possible suspect. He indicated that he had learned it was his ex common-law who assaulted him on September 18, 1999 as a third party relative had overheard his ex common-law bragging about stabbing him.
Subsequently, at the hearing the claimant recalled a little more detail about the event, in that he said he knew he had been stabbed by his common-law spouse through the screen door of his home and that he recalled actually being stabbed in the eye and running away. The claimant further indicated that on the night of the alleged incident he and his common-law spouse had been drinking together before the incident and that they fought on other occasions when they had been drinking.
The evidence also indicates that the claimant and his common-law spouse have been involved in an on again/ off again relationship for approximately ten years and that the parties have a long history of mutually violent behaviour between them during their relationship, involving ongoing restraining orders, breach of orders and assaults between the parties. Information was also received that, following the later report to the rural RCMP, the police attempted to investigate the matter further but were unable to proceed as, after several attempts to contact the claimant, no response was ever received.
In our deliberations on this file we note the many inconsistencies and differences in the claimant's evidence on different occasions as to what occurred and as to who was responsible. We also note that the claimant was not co-operative with the police and their investigation and only contacted the police for the purposes of compensation for his injury and not to assist in the apprehension of any perpetrator or with the investigation. We note the claimant has continued to contact his ex common-law spouse notwithstanding what is alleged to have occurred between them. We note that while the claimant suffered an injury some time prior to his first statement to the police, there is little to establish what occurred on or about September 18, 1999. We note that the claimant acknowledged a high level of intoxication at the time of the incident and a reluctance to participate in the apprehension or identification of a perpetrator.
In any event, we would disallow benefits under Section 31(b) and (d) of the Act as the claimant failed to assist police in the apprehension or prosecution of the person whose actions may have resulted in his injuries or to assist in establishing what occurred. We also note the long history between the parties where they have both willingly and regularly placed themselves in positions of exposure. We find that such conduct is contributory to the claimant's own misfortune and in our view undermines any grounds for compensation. Therefore the claimant's appeal is denied.
Panel Members
D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner
Recording Secretary, B. Miller
D.A. Vivian - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 23rd day of June, 2000