The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The claimant is appealing the decision made
by the Manitoba Compensation for Victims of Crime program (the "Program") which denied responsibility for the loss of a diamond during an assault that occurred on December 23, 2016.  A file review was held on August 31, 2017 to consider the claimant's appeal.

Issue

Whether or not the claimant should be
reimbursed for the loss of her diamond.

Decision

That the claimant should not be reimbursed for the loss of her diamond.

Background

The claimant sustained multiple injuries as a result of an assault that occurred on December 23, 2016. On February 1, 2017, the Program accepted the claim and advised the claimant that she was entitled to certain benefits, including ambulance fees, prescription costs and medical/counselling services, but was not entitled to compensation for her diamond that was lost during the assault, as the Program does "not compensate for lost or damaged property." On April 6, 2017, the Program confirmed that the original decision to deny compensation for the claimant's lost diamond was correct. On April 25, 2017, the claimant appealed the decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation In deciding this appeal, the Appeal Commission is bound by The Victims' Bill of Rights (the "Bill") and regulations. Section 47 of the Bill outlines the types of compensation payable to injured victims as follows: Compensation to injured victims 47 A victim who is injured as a result of an incident described in subsection 46(1) is entitled, in accordance with the regulations, to the following: (a) reimbursement for expenses prescribed by regulation that were incurred as a result of the injury; (b) compensation for related counselling services; (c) if the victim is disabled by the injury, compensation for loss of wages; (d) if the victim is permanently impaired by the injury, compensation for the impairment. Section 11 of the Victims' Rights Regulation (the "Regulation") identifies classes of expenses for which reimbursement or compensation is payable. Subsection 11(1) addresses compensation for items lost or damaged in an incident, and provides as follows: Compensation for items damaged in incident 11(1) The director may pay compensation for loss or damage that occurred in an incident to the following items: (a) clothing, to a maximum of $500; (b) prescription eyewear; (c) disability aids such as canes, walkers or hearing aids. Subsection 11(2) of the Regulation goes on to state: Excluded items 11(2) No compensation is payable for any loss or damage to any property of the victim, other than the items set out in subsection (1). For greater certainty, no compensation is payable for lost or damaged jewellery, cell phones, computers or other electronic devices, the theft or loss of money or motor vehicles or any damage to real property. Claimant's Position The claimant provided a written submission in support of her appeal. The claimant's position was that she should be compensated for the cost to replace the diamond which she lost as a result of the assault she suffered on December 23, 2016. The claimant stated that she was brutally attacked outside her home on the morning of December 23, and lost the diamond from her ring as she struggled to save herself and to protect her family. She referred to numerous injuries which she suffered, and submitted that her body and mind still struggle with the trauma she endured. The claimant stated that her life has been forever changed by the assault, and will never be the same. The attack took away her dignity, her self-esteem, her sense of security, and her self-confidence. The claimant said that she was victimized by the attack, and felt victimized again by the decision to deny her compensation for replacement of the diamond she lost during the attack. She believed that her request for compensation to replace what was taken from her was reasonable and warranted, given all the pain and suffering she has endured to date. While some things could never be restored to their original state, she firmly believed that her ring could be restored with compensation to replace her lost diamond. Analysis The claimant is seeking to be reimbursed for the loss of her diamond as a result of an assault on December 23, 2016. For the appeal to be successful, the panel must find that the claimant is entitled to reimbursement for her diamond under the applicable legislation. The panel is unable to make that finding, for the reasons that follow. The claimant has an accepted claim arising out of an assault and has been paid certain benefits under the Program. The claimant is now asking to be compensated for the replacement of one of the diamonds which was lost from her ring during the assault. The types and classes of expenses for which a victim is entitled to be compensated are set out in the Bill and the Regulation. Subsection 47(a) of the Bill provides that a victim is entitled to reimbursement for expenses prescribed by regulation. Subsection 11(1) of the Regulation lists classes of items which are eligible for compensation. The panel is unable to find that a lost diamond or damaged ring falls within any of the classes of eligible items listed in subsection 11(1). Subsection 11(2) of the Regulation goes on to deal with excluded items, and stipulates that no compensation is payable for loss or damage to property other than what is set out in subsection 11(1). "For greater certainty", subsection 11(2) specifically states that "no compensation is payable for lost or damaged jewellery..." The panel finds that loss of the claimant's diamond and damage to her ring fall squarely within this provision, and are expressly excluded from compensation. The panel is unable to identify any other provision in the Bill or the Regulation which would get around this exclusion or enable the Program to compensate the claimant for her lost diamond. The panel appreciates that the claimant has suffered significant injuries and trauma as a result of the December 23, 2016 assault. The panel finds, however, that there is no entitlement to compensation or reimbursement for her lost diamond under the Bill or Regulation, and the claimant should not be reimbursed for same. The claimant's appeal on this issue is therefore denied.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Payette, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 27th day of October, 2017