The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A file review was held on May 18, 2006, at the victim's request. The victim provided the appeal panel with a written submission in support of his appeal.

Issue

Whether or not the victim's wage loss benefit was properly calculated for the period November 2001 to June 2003.

Decision

That the victim's wage loss benefit was not properly calculated for the period November 2001 to June 2003.

Decision: Unanimous

Background

Reasons

Background:

The victim filed a claim with the Criminal Injuries Compensation Board, presently known as Compensation for Victims of Crime Program (hereafter the "Program") on June 27, 1995 for an assault that took place on June 14, 1995. At the time of the assault, The Criminal Injuries Compensation Act (hereafter the "CICA") was in effect. The victim received benefits under the CICA, including wage loss benefits at a rate of 90% of his loss of earning capacity for the first 24 months, then 80% thereafter.

On January 16, 2001 the victim received a letter enclosing a cheque for wage loss benefits that was calculated at a rate of 55% of the victim's gross bi-weekly income in accordance with Victims' Rights Regulation 214/98 which was made under The Victims' Bill of Rights (hereafter the "VBR"). The VBR repealed the CICA and was proclaimed in force on January 4, 1999.

The Program confirmed its position that the victim's wage loss benefits were to be calculated in accordance with the VBR and not the CICA in a letter dated November 15, 2004. It also clarified its reasoning for its position in two letters dated October 27, 2005 and January 30, 2006, respectively:

"Question #1 - Can you please clarify what specific benefits you are referring to which you were eligible to receive under The Criminal Injuries Compensation Act that you are no longer eligible to receive under The Victims' Bill of Rights.

Once again, we wish to refer you to Sections 72(2) and 72(4) of The Victims' Bill of Rights which state as follows:

Application under Criminal Injuries Act continued

72(2) Despite the repeal of The Criminal Injuries Compensation Act by this Act, an application for compensation made under that Act before this Act comes into force shall be continued as if that Act and regulations under it remained in force and this Act had not come into force.

Review of orders made under Criminal Injuries Act

72(4) The director may, in accordance with this Act, review and confirm, discontinue or vary an order made under The Criminal Injuries Compensation Act under which compensation is paid or payable.

Accordingly, you are correct in stating that your claim is still subject to the provisions as set out in The Criminal Injuries Compensation Act, however the Director, in accordance with the current Act, does have the discretion to discontinue or vary an order made under the previous Act."

"Wage loss benefits for [the victim] for the period from November 2001 to June 2003 were calculated at the rate of 55% of gross income which is the rate used under the current legislation. This calculation was used as the application for wage loss benefits was made after the Victims' Bill of Rights [sic] came into effect and because the program no longer had access to the Criminal Injuries program that calculated wage loss at 80% of net income. Section 72(4) of the Victims' Bill of Rights [sic] states that the director may, in accordance with this Act, review and confirm, discontinue or vary an order made under the Criminal Injuries Compensation Act [sic] under which compensation is paid or payable. This is the section that was used to justify the change in rate of calculation."

The victim did not agree with the Program and appealed the decision to the Appeal Commission. In support of his appeal, the victim essentially relies on subsection 72(2) of the VBR.

Analysis:

The Program's position is two-fold. On the one hand, it agrees that the victim's claim continues to be governed by the CICA in accordance with subsection 72(2) of the VBR. However, on the other hand, it says that the Director of the Program can apply the provisions of the VBR since subsection 72(4) allows it to review, confirm, discontinue or vary an order made under the CICA.

In reviewing the applicable legislation, we find that the victim's claim is governed by the CICA. We therefore also find that the victim's wage loss benefits are to be calculated in accordance with the provisions of the CICA.

While subsection 72(4) of the VBR does grant the Director of the Program authority to review, confirm, discontinue or vary an order made under the CICA, that authority does not mean that the Director can choose not to apply the statutory provisions and entitlements of the CICA.

Accordingly, we find that the victim is entitled to wage loss benefits in accordance with the CICA and more precisely by reference, subsection 39(1) of The Workers Compensation Act which reads as follows:

"Wage loss benefits for loss of earning capacity
39(1) Where an injury to a worker results in a loss of earning capacity after the day of the accident, wage loss benefits shall be payable to the worker calculated in accordance with section 40 and equal to

(a) 90% of the loss of earning capacity for a maximum of 24 months; and

(b) 80% of the loss of earning capacity after the 24 months"

Accordingly, the victim's appeal is allowed.

Panel Members

L. Martin, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

L. Martin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 22nd day of June, 2006