Decision #05/00 - Type: Victims' Rights
Preamble
An Appeal Panel hearing was held on June 13, 2000, at the request of the claimant. The Panel discussed this appeal on June 13, 2000.
Issue
Whether or not the claimant is entitled to the payment of wage loss benefits beyond October 1, 1999 until his return to work on October 19, 1999; and
Whether or not the claimant is entitled to medical aid benefits beyond December, 1999.
Decision
The claimant is entitled to the payment of wage loss benefits beyond October 1, 1999 until his return to work on October 19, 1999; and
The claimant is entitled to medical aid benefits beyond December, 1999.
Background
The claimant was the victim of an assault on June 14, 1995, wherein he was stabbed at the back of his right knee. The claim was accepted by the Criminal Injuries Compensation Board and the claimant received disability benefits and a permanent partial impairment award.
On March 16, 1999, the claimant signed an "Individualized Written Rehabilitation Plan" which indicated that the WCB would provide the claimant with assistance to pursue a job in the tourism industry. The details of the plan were as follows:
- Overall plan duration: March 1999 to November 23, 2000;
- March 1999 to July 19, 1999 - upgrading/course preparation studies;
- July 20, 1999 to May 20, 2000 - attendance and completion of travel agent program at Robertson College;
- January 2000 to May 20, 2000 - participation in part-time work experience in the travel agent field;
- May 21, 2000 to August 31, 2000 - participation in full-time work experience position in the travel agent field;
- September 1, 2000 to November 23, 2000 - participation in job search program.
Following completion of the vocational plan, it was anticipated that the claimant would be capable of earning $300.70 per week. His eligibility for ongoing benefits would cease effective November 24, 2000 as he would have attained an earning capacity in excess of his pre-accident income.
In a letter dated September 13, 1999, the claimant was informed by the Compensation for Victims of Crime Program that his benefits were being terminated as he was not complying with the proposed rehabilitation plan. The letter stated that it had been confirmed the claimant was absent 44 hours out of a possible 100 hours from the travel agent course. It was also noted that the claimant's behavior during classroom time was not acceptable as he continuously challenged the staff at the college and was not willing to comply with their policies.
On October 1, 1999, the Compensation for Victims of Crime Program learned that the claimant was awaiting trial on an indecent act charge which was scheduled for court on November 15, 1999. In a letter dated October 1, 1999, the claimant was informed that his criminal record had been reviewed and it was noted that he had been convicted of other offenses while receiving benefits from the program. The letter stated, "We will accordingly be terminating your benefits with our program effective immediately."
In October 1999 the claimant appealed the decision to terminate his benefits. The claimant questioned how his benefits could be terminated for a charge that was over 4 years old. The claimant noted that the incident occurred 3 months after he was attacked and stabbed and that he was physically and emotionally in pain at the time. The claimant also said that the criminal injury department knew of the incident. The claimant also contended that the indecent act charge did not exist.
On October 7, 1999, the Compensation for Victims of Crime Program wrote to the claimant indicating that it agreed with him that he had not yet been convicted of charges as the trial date was not scheduled until November 1999. The Winnipeg Police Service confirmed however, that the claimant did attend at the Public Safety Building on May 27th and that he was arrested, appraised of his rights and cautioned in the usual police manner regarding the indecent act charges.
The letter further indicated that the Program was terminating any further wage loss benefits as he was deemed employable with his educational background and vast work experience. It was also noted that the claimant had recently accepted employment and would be commencing work on the weekend. The claimant was advised that his involvement in criminal activity had seriously hampered his employability with certain employers in his chosen field. The program would continue to support the claimant with the provision of a bus pass and other medical items up until the end of December 1999, at which time his file would be closed within the department.
On November 10, 1999, the claimant requested reconsideration of the above decision for the following reasons:
- "Your department has no authority to terminate loss of wage benefits because of accusations. I have been charged with an indecent act but I was not convicted. In Canada people are innocent until proven guilty.
- I will require medical benefits for the duration of my life. I did not require any meds, shoes, socks, soaps, creams, bandages, antibiotics, surgeries, until I was attacked and stabbed. The condition of my leg is only going to get worse. I will need help for the rest of my life.
- I am still entitled to a PDA next summer for the loss of my toe in June of 1999.
- I need help finding a job that will suit my medical needs."
On December 8, 1999, the Director of the Program confirmed the decision to terminate benefits due to the fact that the claimant accepted full time employment and that his work experience and education were sufficient for ensuring ongoing employability. The Director also made reference to section 11(1) of the Criminal Injuries Compensation Act. "This section gives us cause to consider the two charges laid against you while on our program, especially given that your file indicates that program staff had some concern that you were not always forthright and cooperative."
On December 9, 1999, the claimant appealed the above decision to the Appeal Commission and an oral hearing was arranged.
Reasons
The applicant has been in receipt of disability benefits under The Criminal Injuries Compensation Act (the Act) since June 14th, 1995 as a result of injuries he sustained after being criminally assaulted. On or about October 1st, 1999 the applicant was advised that his benefits would be terminated immediately. "We have received your criminal record and note that you have been convicted of other offences while receiving benefits from our program. In light of the situation we feel that you have made some choices which make it next to impossible for us to find you employment at this time, due to your criminal record. As well, you have not been forthright with us regarding your situation throughout your dealings with our program and therefore we are not prepared to continue providing compensation. We will accordingly be terminating your benefits with our program effective immediately."
Section 11(1) of the Act states, "The board, in making or in declining to make an order for the payment of compensation, shall consider and take into account all such circumstances as it considers relevant to the making of the order and, without limiting the generality of the foregoing, the board shall consider and take into account the character of the applicant and the victim and any behaviour that directly or indirectly contributed to the injury or death of the victim." We are not convinced that this section creates an absolute bar to an applicant's entitlement to compensation simply because he or she may have a criminal record. The applicant's character is only a single factor to be considered in conjunction with the evidence as a whole.
The applicant attended a job interview on October 5th, 1999. He was successful in being offered a permanent part time job at a wage level comparable to his pre-assault wage rate. The applicant testified that his foot problem was the same whether or not he was standing or sitting. He further indicated that a recent promotion would largely allow him to be sitting while performing these new job duties. The applicant accepted the job offer and began work on October 19th, 1999.
We have no hesitation in finding that the applicant is entitled to wage loss benefits beyond October 1st, 1999 up to his return to work on October 19th, 1999.
With respect to the second issue, there was absolutely no medical evidence presented which even remotely suggested that the applicant's continuing right leg and foot problems were not causally related to his criminal injury. On the contrary, the overwhelming medical evidence confirmed that the applicant's condition would only progress and deteriorate with the passage of time. Therefore, we find that medical aid benefits including footwear, prescription drugs etc. should be maintained for as long as is necessary. Accordingly, the applicant is entitled to medical aid benefits beyond December 1999.
Panel Members
R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 10th day of July, 2000