The Appeal CommissionThe Workers Compensation Act of Manitoba

With respect to the issue of whether an extension of time for filing the appeal should be granted, the panel notes that subsection 60(2) of the Act allows for extensions to be granted if the panel is satisfied that the person appealing has a reasonable excuse for failing to file the appeal within the time referred to in subsection 60(1). Subsection 60(1) allows for 30 days to file an appeal. The appellant was advised by the Program director that he had 30 working days to file the appeal. The appellant was within this time frame in his application to appeal. Given that he relied on inaccurate information, the panel finds it appropriate to extend the time for appealing the decision and to allow this appeal to proceed.

With respect to the issue of whether the appellant’s claim is eligible for compensation, the panel must consider the provisions of section 54 of the Act, which set out the circumstances that allow the director of the Program to refuse to award compensation to a victim. Subsection 54(b) of the Act provides as follows:

54 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

…

(b) the applicant has not assisted law enforcement authorities to apprehend or prosecute a person whose actions resulted in the victim’s injury or death…

The evidence of the appellant regarding the circumstances of the assault differ from the police information and witness reports on file.

According to the information on file, one of the witnesses, who was identified at the hearing as the appellant’s aunt, told the police that she witnessed a fight between the appellant and his brother and that she saw the appellant’s brother coming out of the house yelling “I stabbed him, I stabbed him”.

According to another witness, who was identified as a co-worker of the appellant, the appellant and his brother were at a party when they got into a fight. The appellant punched his brother in the face and the witness saw the brother grab something shiny and stab the appellant.

According to the police notes, the appellant’s brother stated that he was fighting with the appellant; that they had been drinking; that the appellant hit him in the face while they were in the kitchen; and that he grabbed a knife and stabbed the appellant. The police file also indicates that the brother agreed to provide a video statement in which he admitted to the offence.

The appellant and his mother testified at the hearing of this appeal. The appellant’s mother was not present at the time of the incident.

The appellant testified that an individual named “Henry” stabbed him while they were outside the house where the party had taken place. According to the appellant, the witnesses referred to above were asleep inside the house and did not see the stabbing. The appellant also testified that he remembers the face of the person who stabbed him and it wasn’t his brother.

The appellant was asked at the hearing to explain the efforts he had made to advise the police about the incident and that someone other than his brother committed the assault. The appellant testified that when the police visited him at the hospital, he didn’t tell them anything about the incident and he didn’t want to talk to them.

The appellant also recounted an incident at the hospital where he felt he was threatened by Henry’s brother who worked at the hospital. He indicated he didn’t feel safe at the hospital and he contacted his father who sent his uncles to watch him. The appellant testified that he did not contact the police about this incident.

When the appellant was asked by the panel when he first told the police that it was Henry who stabbed him, the appellant testified that he wasn’t sure. When asked if he told the police that Henry did it when they came to see him after he was released from the hospital, he testified that he was not sure what happened when the police came to see him. When asked by the panel if he had ever told the police directly that it was Henry who stabbed him, the appellant testified that when he was picked up by police a few times on unrelated matters and was asked by officers “out of the blue” why his brother stabbed him, he said that it wasn’t his brother and that Henry did it.

When asked by the panel why he never went to the police station to tell them his story, the appellant testified that it was because he was trying to look for Henry himself.

The appellant testified that he knew who assaulted him. Yet the panel finds that at the first opportunity he had to tell the police who stabbed him, he failed to do so by refusing to talk to them when they visited him at the hospital. He also failed to take any steps while in the hospital to contact the police and advise them that it was an individual named “Henry” who stabbed him when it should have been apparent to him that his brother was being held responsible. Clearly, at the first opportunity he had to tell his story to the police, when his evidence would have had any credibility, the appellant failed to do so.

In addition, the appellant did not make any meaningful efforts to advise the police of his story following his release from the hospital. His evidence that he never contacted the police directly and that the only times he remembered telling the police that “Henry” was the assailant were when he was picked up on unrelated matters, do not amount to a reasonable attempt to assist the police in apprehending the person responsible for his injury.

Whether the assailant in this case was the appellant’s brother or another individual, the panel finds that the identity of the person whose actions resulted in the appellant’s injury was known to the appellant. Therefore, in light of the failure of the appellant to testify against his brother, or if his brother was not the assailant, to take any credible or meaningful steps to advise the police of his version of the events, the panel is of the opinion that the appellant failed to assist law enforcement authorities to apprehend or prosecute that person.

The panel therefore holds that pursuant to subsection 54(b) of the Act, the appellant is not entitled to an award of compensation and this appeal is dismissed.