The Appeal CommissionThe Workers Compensation Act of Manitoba

The claimant has filed two claims with the Compensation for Victims of Crime program.

On May 29, 1999, the claimant was on his way home and was hit on the back of his head with a board. The claim was accepted and costs were paid in association with ambulance and clothing expenses. The claimant was also paid wage loss benefits for the period of May 29, 1999 to July 3, 1999. The wage loss benefits were calculated as follows and were outlined in a letter to the claimant dated February 1, 2000:

“$720/week x 5 weeks = $3600 of missed earnings due to the assault

This was then paid out at 55% which equals $1980 of wage loss benefits owing by our program.From this amount we have deducted the sum of $783.65 that you received from Employment & Income Assistance as well as the amount paid to you on December 20, 1999 in the amount of $660.00. We accordingly enclose our cheque in the amount of $536.35 representing the balance of wage loss benefits owing on this claim.”

On July 5, 1999, the claimant was again the victim of another assault when he was stabbed in the abdomen by an assailant who had entered his apartment via a bathroom window. The claim was accepted by the Compensation for Victims of Crime program and costs were paid in association with ambulance and clothing expenses.

On December 20, 1999, the claimant was advised by a Claims Adjudicator that he was not entitled to wage loss benefits as he was not employed at the time of the July 5, 1999, incident. In a subsequent letter to the claimant dated February 1, 2000, the Claims Adjudicator stated, in part, the following:

“…As you claim that you were only unemployed due to a prior assault to which you were receiving compensation and should have been entitled to wage loss benefits, we must advise that if we had considered wage loss benefits, your income would have been subject to our average earning policy.

Due to your limited earnings in 1999, it is a policy of our program to use your average income over the past two years to determine the amount of wage loss benefits payable. Upon reviewing the information on file in (sic) appears that you had employment income from October, 1997 to December, 1999 in the amount of $7,652.87. The only other employment income you had in the past 2 years was with [name] Contracting in the amount of $360.00 for May 26 to 28, 1999. The balance of your income was received through Employment Insurance or you were receiving no assistance due to periods of incarceration. Accordingly, we calculate your total earnings for the past two years to be $8,012.87 divided by 24 months = $333.86 per month. This would then be paid out at 55% which equals $183.62 per month of wage loss benefits owing from our program. From this amount we would deduct the amount you received from Employment & Income Assistance which is more than our program would be providing.”