Public Decisions | The Appeal Commission

Decision #04/19 - Type: Victims' Rights

Preamble

The claimant is appealing the decision by the Manitoba Compensation for Victims of Crime Program (the "Program") that she is not entitled to wage loss benefits under The Victims' Bill of Rights (the "VBR"). A hearing was held on June 10, 2019 to consider the claimant's appeal.

Issue

Whether or not the claimant is entitled to wage loss benefits.

Decision

That the claimant is not entitled to wage loss benefits.

Background

On September 25, 2012, the claimant filed an application for compensation under the Program for an incident that took place on September 24, 2012. The claimant stated that she was assaulted with a weapon. She suffered multiple injuries as a result of the assault and was taken to hospital by ambulance for treatment.

On August 9, 2017, in response to a request from the claimant, the Program determined that she was not eligible for wage loss benefits. The Program noted that the claimant had indicated in her application for compensation that she was not working at the time of the incident and advised she was receiving benefits through a Manitoba Public Insurance ("MPI") income replacement plan.

On November 23, 2017, the claimant submitted a Request for Reconsideration to the Program, with attached Income Replacement Indemnity information from MPI, and noted that she was receiving "Income Replacement for loss of wage" in the gross yearly employment income amount indicated.

On November 22, 2018, the Acting Executive Director of the Program determined that the decision to deny wage loss benefits was correct. The Acting Executive Director noted that the Program's "Wage Loss" policy allowed for an exception to be made for an applicant who was "temporarily unemployed" at the time of an incident, recognizing that a claimant who was on a short-term (up to 4 month) break from employment could reasonably be expected to return to work in a timely manner and could be eligible for wage loss benefits. It was noted that the claimant had been engaged in a long-term break in employment of approximately 2.5 years prior to the incident and was therefore not eligible for wage loss benefits. On January 4, 2019, the claimant appealed the decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The claimant is seeking compensation for lost wages as a result of the September 24, 2012 incident.

Section 47 of the VBR outlines the types of compensation which are payable to injured victims and states, in part, 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:

…

General provisions regarding compensation are set out in Part 3 of the Victims' Rights Regulation (the "Regulation"). Section 8 in Part 3 of the Regulation deals with compensation for loss of wages, and provides, in part, as follows:

Compensation for loss of wages or earnings

8(1) A victim who

.(a) is injured in an incident;

(b) is employed or self-employed at the time of the incident; and

is entitled to compensation for loss of wages or earnings in accordance with this section.

Amount of compensation

8(2) An injured victim is entitled to compensation in the amount of 55% of his or her gross reported wages or earnings for the 12-month period immediately before the incident, to a maximum amount of $468 per week.

The Program has created Policy 6.6.1, Wage Loss (the "Policy"). The Policy states that:

In order to be considered for wage loss benefits, these criteria must be met:

 the applicant must have been employed at the time of the incident and be able to produce reported earnings that can be verified by the Program

 the applicant must be unable to return to work due to a compensable physical or psychological injury suffered as a direct result of the criminal incident. Supporting medical documentation is required for either short-term or long-term wage loss benefits

 the applicant will only be eligible after they have exhausted all others (sic) avenues of income such as sick and vacation leave, disability benefits, Employment Insurance (EI), etc The purpose of this benefit is to ensure that a victim continues to have access to income based on the victim's employment history while they are recovering from a criminal incident.

Under the heading of Procedure, the Policy provides, in part, as follows:

Employment status

Normally, an applicant must be employed at the time of the incident. However, exceptions can be made where:

 the applicant was temporarily unemployed at the time of the incident provided that the break in employment (1) did not exceed 4 months in duration and (2) was as a result of illness, injury or short term layoff and (3) the person was in receipt of benefits from WCB, E.I or an employer plan. NOTE: Unemployment periods in excess of 4 months must be considered on a case-by-case basis

 if the applicant is a seasonal worker and was injured during the off season and receiving E.I. In these cases, benefits will only be paid during the person's normal employment season.

Benefits

…

• Wage loss benefits are not to be based on projected earnings under any circumstance.

Coverage

…

• The length of coverage shall not exceed the number of weeks worked prior to the criminal incident. For example, if a claimant worked 2 months leading up to the criminal incident, then they will (sic) wage loss benefits for a maximum of 2 months after wage loss benefits are approved…

Claimant's Position

The claimant was represented by legal counsel, who submitted additional documentation in advance of the hearing and made a submission to the panel.

The claimant's position was that she sustained a loss of wages as a result of the September 24, 2012 criminal assault for which she is entitled to be compensated.

Counsel submitted that there did not appear to be any issue with there having been an assault which caused the claimant to be unable to work. He noted that the claimant had qualified for some benefits from the Program, but was denied wage loss benefits, probably because she said she was not working.

Counsel submitted that this is an exceptional case, where the claimant would have been working for 2½ years prior to the September 24, 2012 incident but for a motor vehicle accident she was involved in on April 12, 2010. It was submitted that the best evidence of this is that MPI paid the claimant through that period of time as if she was working in her profession, at an annual gross income of just over $67,000.

Counsel submitted that MPI continued to pay the claimant for her income loss up until recently, when a final settlement of income loss was concluded with MPI. It was submitted that if the amount of the settlement was converted to reflect the equivalent monthly income replacement benefits which the claimant had been receiving, they would extend to cover the period of time up to approximately the end of June 2019.

Counsel submitted that the claimant has therefore exhausted all other avenues of income. The claimant has not returned to the workforce. Counsel noted that as of the date of the hearing, the claimant had no other source of income, and based on the medical reports, she is still unable to work as a result of the assault.

Counsel submitted that their ultimate position is that the claimant was effectively working for 2½ years prior to the assault, earning $67,000 per year during that time, and but for the car accident, she would not have been off work before the assault occurred. It was submitted that the panel should look at her situation as if she graduated from school, was working for 2½ years, earning $67,000 per year, then suffered the assault. In their submission, that would entitle her to the maximum matching amount of benefits for 2½ years, commencing in July 2019.

It was submitted that the claimant's current problems are related to the assault, not to the 2010 motor vehicle accident. Counsel reviewed the injuries from the motor vehicle accident and from the assault. Counsel noted medical evidence showed that the claimant's injuries as a result of the motor vehicle accident have all resolved, and agreed with MPI's position that the claimant's current problems are not related to the motor vehicle accident. It is therefore the assault, in and of itself, outside of the motor vehicle accident, which creates her current entitlement to benefits.

Counsel submitted that the VBR is designed and intended to compensate people who were unable to work because of a crime, which is what happened in this case. Counsel submitted that the legislation is consistent with the Policy, and should be interpreted broadly. Under the Policy, the Program can make exceptions. It was submitted that this is an unusual and exceptional case, and a classic example of where the exception and payment of wage loss benefits should apply, in that the claimant would have been working up to the time of the criminal incident.

Counsel submitted that the claimant was being paid as if she was working at the time of the assault, and through the exception category she should therefore be viewed as having been working.

In conclusion, it was submitted that the claimant should be treated as if she was working at the time of the criminal incident, with earnings at either the gross yearly employment income amount or the actual amount she was being paid for loss of wages at the time of the assault. It was submitted, therefore, that the claimant suffered a loss of wages as a result of the assault, for which she is entitled to be compensated.

Analysis

The issue before the panel is whether or not the claimant is entitled to wage loss benefits. For the claimant's appeal to be successful, the panel must find, on a balance of probabilities, that the claimant is eligible for wage loss benefits under the VBR and Regulation. The panel is unable to make that finding.

Subsection 8(1)(b) of the Regulation provides that a victim must be "employed or self-employed at the time of the incident," in order to be entitled to compensation for loss of wages or earnings. The panel finds that this requirement has not been satisfied.

The panel finds that the claimant was not working at the time of the criminal incident of September 24, 2012. The evidence shows that the claimant had graduated from a university program approximately two weeks prior to a motor vehicle accident she was involved in on April 12, 2010, and that she was not employed at the time of that 2010 accident or since. The claimant did not provide any meaningful employment history of work prior to the 2010 motor vehicle accident.

Counsel has submitted that this is an exceptional case, arguing that the claimant would have been employed at the time of the criminal incident but for the 2010 motor vehicle accident, as evidenced by the fact she had been receiving and was continuing to receive income replacement benefits at the time of the criminal incident, and is therefore entitled to wage loss benefits under the VBR.

The panel notes that the income replacement benefits which the claimant received over the years from MPI were awarded under a different legislative scheme, apparently based on deemed or projected employment, being employment which the claimant would have performed but for the accident. Counsel did not identify, and the panel has not located, any provision in the VBR or the Regulation which would enable the Program or the Appeal Commission to award wage loss benefits on this basis.

In response to questions from the panel, counsel submitted, in the alternative, that if our concern was that the Program cannot project or deem income, which is what the $67,000 represents, then we could rely on the fact that what the claimant was actually receiving, following deductions, was a net amount of $45,000 annually. In effect, therefore, it was argued that MPI was a proxy employer. The panel is unable to accept that argument. The panel notes that the claimant had no connection to the workforce even under the MPI claim.

Legal counsel relied heavily on exceptions under the Policy to the requirement that a victim be employed at the time of the incident. The panel notes that we are not formally bound by the Policy, but can turn to the Policy as a source of guidance in interpretation and implementation of the VBR and Regulations. The panel accepts, for the purposes of this hearing, that the "exception" provision under the Policy for claimants who are "temporarily unemployed at the time of the incident" appears reasonable and can be read as being generally consistent with the wording and intent of the VBR and Regulation. The exception applies where there has been a temporary break or interruption in employment and appears to be a reasonable attempt to interpret and reconcile the strict wording of the VBR with the different fact situations which may arise.

The panel is unable to find, however, that the more than two-year period of time between the 2010 motor vehicle accident and the September 24, 2012 criminal incident in this case could be considered temporary in nature or constituted a break or interruption in employment.

Based on the foregoing, the panel finds, on a balance of probabilities, that the claimant is not eligible for wage loss benefits under the VBR and Regulation. The panel therefore finds that the claimant is not entitled to wage loss benefits.

The claimant's appeal is dismissed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 9th day of August, 2019

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