The Appeal CommissionThe Workers Compensation Act of Manitoba

Claimant’s Evidence at Hearing

The claimant explained his reasons for applying for benefits and answered questions posed by the panel.

The claimant advised that he attended the casino on December 30, 2002 to pick up his wife. While leaving the premises he was stopped by security personnel and told that he was not to be on the premises. He states he then said something “dirty” to the security personnel and was grabbed and forced outside. Three or four additional security staff assisted the first security personnel. The claimant was pushed to the ground, his arms were twisted, pulled behind his back and handcuffs were placed on him. He said his hands were bleeding and he was left on the ground. He was held approximately 40 minutes until police arrived. He was taken to a police station and then released. He attended the emergency ward of a local hospital after being released and later attended his family physician.

The claimant advised that he was unable to work for an extended period of time due to the injury he suffered from the incident.

When asked whether the injury was caused by the actions of the security staff or the police, the claimant advised that it was caused by the actions of the security staff. He noted that he was injured further when placed in the police car.

When asked whether he attempted to have criminal charges laid against the security staff the claimant replied that he did not. He stated that on the night of the incident he told a police chief in the station that he was going to sue the security staff. To his knowledge no investigation was conducted. He also advised that he did not pursue charges against the police.

The claimant acknowledged that at the time of the incident he was banned from attending the casino pursuant to The Petty Trespass Act.

The claimant advised that he was not aware of the Program until recently when he made his application. He also advised that he has not sued the casino or security staff.

Applicable Legislation

Issue 1: Extension of time to apply

Section 51(1) of the VBR provides that an application for compensation must be made within one year after the date of the event that results in the victim's injury or within one year after the date when the victim becomes aware of or ought to know the nature of the injuries and recognizes the effects of the injuries. Section 51(2) provides that the director may extend the time for making an application if she considers it appropriate.

In considering the application of the statute to this case, it is significant that the limitation set out in s. 51(1) flows from the date of the actual injury or the date when the victim became aware of or ought to have become aware of the nature and effect of his injuries. The statutory trigger point for the limitation is not the date at which the victim became aware of a right to compensation but the date at which the victim became aware of the nature and seriousness of his injury.

The legislative intent would appear to be that once the victim becomes aware of the seriousness of the injuries he has suffered, the victim has an obligation to make himself aware of any rights he may have for compensation and to seek to realize those rights within a reasonable period of time.

Section 51(2) provides the director with the authority to extend the time limit for applying but the authority is discretionary in circumstances where the director considers it appropriate. There is no obligation to extend the time limit for applying in circumstances where the victim knew the extent of his injury but simply was not aware of his right to seek redress under the VBR.

Guidance as to when the exercise of that discretion may be appropriate can perhaps be found in other sections of the VBR. For example, s. 50(2) makes provision for a guardian to make an application for a victim under the age of 18 and s. 50(3) makes provision for a substitute decision maker to make an application for a victim who is mentally incompetent.

The panel would also note that the Program's policy provides for a case by case analysis of whether the application time limit should be included. Factors that may support a decision to approve an extension include circumstances where the victim was a minor or mentally incompetent or the victim was medically or psychologically incapable of filing. Again, these are circumstances where the victim was not in a position either to make themselves aware of their right to seek compensation or was not physically or mentally capable of applying.

In summary, the clear legislative intent is that once victims become aware of the nature and extent of their injuries, they have an obligation to inform themselves of their rights and to avail themselves of their rights in a reasonable time period. While extensions may be granted, the decision to do so is discretionary. Factors which might be relevant to a case by case exercise of that discretion include whether it was the victim or someone else who was responsible for the failure to meet the time limit and whether the victim was physically or mentally incapable of applying.

Issue 2: Whether the claim is eligible for compensation

Section 46 deals with eligibility for compensation. Subsection 46(1) (a) provides that an application may be made by a victim who is injured if the injury is caused by an act or omission of another that is an offence under the Criminal Code. Subsection 46(2) provides, in part, that it is not necessary that a person be charged with or convicted of an offence.

Section 54 provides that the director may refuse to award compensation if the event that resulted in the injury was not reported to law enforcement authorities within a reasonable time after it occurred.

Analysis

Application to the Facts

Issue 1: Extension of time to apply

In this case, the claimant was 59 years of age at the time of the injury. He was not a minor nor is there any suggestion he was mentally incompetent.

He suffered an injury on December 31, 2002, for which he attended a hospital and was treated.

There is no suggestion that the claimant was either physically or mentally incapable of applying for victim's assistance.

There was an approximate 38 month delay between the injury and the application for compensation.

In short, the claimant was a mentally competent adult who was fully aware of his injury. He was physically and mentally capable of applying for victim's compensation.

Section 51(1) of the VBR makes it clear that the time line for applying for benefits flows from the date at which the nature and effects of the injuries were recognized. At the latest, the victim should have been aware of the nature of his injuries by the time of his attendance at his physician’s office on January 24, 2003. From that point in time, he had an obligation to inform himself of his rights and to reasonably avail himself of these rights in a timely manner.

He did not do so. His application for compensation was filed approximately 26 months out of time. While a discretion exists to extend the time for filing of his application, the panel does not believe it would be appropriate to do so in this case. This is not a circumstance where the victim was mentally or physically incapable of understanding or exercising his rights and the panel can find no other rationale for extending the time limit.

The appeal on this issue is denied.

2. Issue: Whether the claim is eligible for compensation

The evidence provided by the claimant does not support a finding that the claimant was injured by a criminal act. From the information provided at the hearing by the worker and from the file information, it appears that the worker was detained while attending the premises that he was legally prohibited from entering. He acknowledged that he was on the premises and that he was aware that he was banned from the premises. Information on file indicates that the worker uttered threats to security staff and that a struggle ensued when security staff attempted to arrest him.