The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The claimant is appealing the decision by the Manitoba Compensation for Victims of Crime Program (the "Program") that he is not entitled to other benefits in addition to counselling under The Victims' Bill of Rights (the "VBR"). A hearing was held on September 19, 2019 to consider the claimant's appeal.

Issue

Whether or not the claimant is entitled to other benefits in addition to counselling.

Decision

That the claimant is not entitled to other benefits in addition to counselling.

Background

On March 22, 2018, the claimant filed an application for compensation under the Program for incidents from "2004 to ongoing." The claimant stated that he had been subjected to verbal, emotional and psychological abuse, along with assault, forced confinement and slander, since 2004.

On March 28, 2018, the Acting Manager of the Program determined that the claim was ineligible for compensation under subsection 46(1) of the VBR. It was noted that the claimant had not made a police report, and that for the situation to be deemed a criminal incident, it must be investigated by a law enforcement agency or supported by the Crown. On May 8, 2018, the claimant reported the incident to a law enforcement agency and requested that the Program reconsider its decision.

On November 20, 2018, the Acting Manager of the Program advised the claimant that his claim was approved for counselling benefits through the Program. The Acting Manager further advised the claimant that due to the length of time since the eligible incidents took place, he was only entitled to funding for counselling therapy to deal with the emotional distress he was experiencing. On January 14, 2019, the claimant filed a Request for Reconsideration with the Program, together with a letter from his treating family physician, requesting additional benefits.

On January 18, 2019, the Acting Executive Director of the Program advised the claimant that his file had been reviewed and it had been determined that due to the length of time that had passed since the eligible criminal incidents, the only benefit available to him was counselling. The Acting Executive Director noted that subsection 51(1) of the VBR imposes a one-year time limit to file an application for compensation. It was also noted that the claimant's application and statement to the police outlined a significant number of non-criminal incidents which may have been a contributing factor to his current injuries. It was further noted that while recognizing that emotional abuse has a psychological impact, it was not something the Program covered.

The Acting Executive Director went on to state that at the Program's discretion, if an extensive amount of time has passed since the criminal injury, the claimant may only be eligible for counselling benefits. The Acting Executive Director noted that the Program had determined to grant counselling benefits in recognition of the impact the criminal incidents had on him, but was unable to offer additional benefits.

On February 11, 2019, the claimant appealed the decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Claimant's Position

The claimant attended the hearing, accompanied by a support person. The claimant referred to his previous submissions on file and made a further presentation at the hearing. The claimant also responded to questions from the panel.

The claimant's position was that he was assaulted multiple times by his former spouse, with the last and most damaging assault having occurred in the fall of 2013. He submitted that these assaults left him severely disabled, with multiple mental illnesses and structural brain damage. His brain damage and mental illness may not be as plainly visible, but are no less serious and debilitating and no less a direct result of being assaulted that if he had been hit on the head with a bat.

In his January 14, 2019 submission, the claimant had indicated that beyond the intensified symptoms of mental illness (PTSD, anxiety response and major depression from the previous assaults and abuse), including high levels of constant pain, he was left with extensive phantom sensations and muscle spasms/convulsions that had continued to progressively worsen and spread. At the hearing, the claimant said that he has been able to recover somewhat from some of the mental illness symptoms, but his brain condition has continued to deteriorate. He submitted that the results of brain tests in 2017 showed that he was dealing with something very serious, in addition to his mental illnesses.

The claimant noted that his application for compensation was rejected under subsection 51(1) of the VBR, which provides that an application must be made within one year of the incident or the date on which the claimant was aware of the nature of the injuries and recognized their effect. 

The claimant stated that he submitted his application for compensation within one year of learning that the assaults left him with a brain condition, including structural and organic brain damage. The results were sent to his doctor on April 13, 2017, and he filed his initial application for compensation with the Program on March 22, 2018.

The claimant stated that the benefits he was requesting might include those which were listed in his initial application, some of which were needed immediately, some of which might be needed as his condition continues to deteriorate. He said that he needs increased resources and assistance with self-care that he cannot manage himself. He needs coverage to help find a full diagnosis for his brain condition, to help stop it from deteriorating and to find a way to some recovery. He said that he had recently been working with a clinical psychologist who has experience with head trauma and brain injury and is looking for funding to give him access to specialists and therapies which have been identified for him to try, including for PTSD.

Analysis

The issue before the panel is whether or not the claimant is entitled to other benefits in addition to counselling. For the claimant's appeal to be successful, the panel must find, on a balance of probabilities, that the claimant is entitled to receive other benefits than counselling pursuant to the VBR or Regulations. The panel is unable to make that finding, for the reasons that follow.

The panel acknowledges that the claimant was clearly traumatized by the events that occurred ending in 2013. However, based on our review of all of the evidence which is before us, on file and as presented at the hearing, the panel is unable to find that the claimant is entitled to receive benefits other than counselling as a result of his ongoing symptoms or conditions.

The panel notes that provision for the compensation of victims of crime is set out in Part 5 of the VBR. Under subsection 46(1)(a), a person may make an application for compensation if they are injured as a result of an incident in Manitoba that is caused by an act or omission of another person that is an offence under the Criminal Code.

Subsection 51(1) states that an application for compensation must be made within a year after the date of the event resulting in an injury or within one year of the date of the incident or the date when the victim becomes aware of or knows or ought to know the nature of the injuries and recognizes the effects of the injuries. Subsection 51(2) allows for an extension of the time for filing the application where it is considered appropriate.

The panel finds that the claimant did not meet the time limitation as set out in subsection 51(1) the VBR. The claimant confirmed at the hearing that all of the assaults ended in August 2013, although other issues such as harassment and slander continued after that. The application for compensation was not filed until March 22, 2018, more than four and one half years after the alleged criminal incidents.

Relying on the results of brain tests and the MRI of his brain in 2017 in particular, the claimant submitted that his application was made within the one-year time period. The panel is unable to accept that argument. The panel notes that the claimant had been treated by his physician for various symptoms and conditions, and information on file shows that he had been diagnosed with major depression in February 2013 and secondary diagnoses of PTSD in October 2016 and seizures in 2015. While the claimant may not have been aware of the MRI and other brain test results until April 2018, the panel does not accept his argument that he was unaware of the impact or nature of his injuries until he was made aware of those particular results.

Although subsection 51(2) allows the Program and the panel to grant an extension of time where it is considered appropriate, the panel is of the view that this should only be done in rare cases, where there are very compelling reasons, and/or supportive medical documentation, for doing so. The panel is unable to find that this is such a case.

The panel notes that in correspondence provided in support of the claimant dated December 14, 2018, the treating physician indicated that he had been dealing with a difficult depressive illness with elements of post-traumatic stress for the last 9 years, but the claimant had only recently disclosed he had been suffering from spousal abuse. While the physician went on to state that there was no doubt in his mind "clinically that this gentleman has significant morbidity attached to his abuse and the resulting mood disturbance that he has suffered," the panel notes that there is an absence of clinical evidence to support that statement. Information provided at the hearing further indicated that the physician would have been made aware of the alleged spousal abuse by at least 2016, but the application for compensation was not filed until March 22, 2018.

The Program allowed the claimant's application for compensation insofar as it related to funding for counselling therapy to deal with the emotional distress he was experiencing. The panel notes that this is consistent with the provision of the Program's Policy 3.1, Statute of Limitations (Time Limit to Apply), which provides that "At the Program's discretion, if an extensive amount of time has passed since the criminal injury the claimant may only be eligible for counselling benefits." Based on the evidence which is before us and in the circumstances of this case, the panel is not satisfied that the worker is eligible for or entitled to any other benefits than counselling.

The panel notes that even if the claimant's application for other benefits were not barred by the limitation period, given the length of time that has elapsed, we are unable to relate the worker's symptoms or conditions the claimant may be experiencing to the alleged assaults.

In this regard, the panel reviewed the four incidents which the claimant had identified in his police report as having caused his injuries. In his evidence, the claimant described an incident which occurred in August 2013 as being the worst incident and the one which had caused his brain symptoms and brain damage. The claimant said he did not recall the details and had very little memory of that incident. He said he had a memory of a lot of pain, at least some of which was probably related to anxiety. He indicated that it was plausible that he was hit in the head, but he was too far in shock and mentally unhinged to pay attention to where the pain was coming from. While the claimant went on to state that there was never anything else that he could correlate to such damage, the panel notes, as indicated above, that there is a lack of medical evidence to support a causal relationship between the worker's ongoing symptoms and conditions and the alleged criminal incidents.

With respect to the brain testing in particular, the panel notes that the letter from the claimant's treating neurologist indicated that the MRI on February 13, 2017 "revealed increased signal intensity in the left hippocampus without volume loss or obscuration of internal structure." The neurologist noted that the significance of this finding "is unclear. Sometimes this signal increase might be associated with recurrent seizures…" The neurologist further notes that the claimant's "jerks and spasms of different body parts…may be associated with anxiety, depression, and PTSD." The panel finds that these comments are speculative in nature, and do not meet the applicable standard of a balance of probabilities or support a causal relationship.

In light of the foregoing, the panel finds, on a balance of probabilities, that the claimant is not entitled to receive other benefits or compensation pursuant to the VBR or Regulations. The panel therefore finds that the claimant is not entitled to other benefits in addition to counselling.

The claimant's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 18th day of November, 2019