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") denying the application for compensation under The Victims' Bill of Rights (the "VBR"). A teleconference hearing was held on June 30, 2020 to consider the claimant's appeal.

Issue

Whether or not the application for compensation is acceptable.

Decision

That the application for compensation is not acceptable.

Background

On December 15, 2019, the claimant filed an application under the Program for an incident which took place on January 20, 2018, when he was robbed at gunpoint while delivering food.

On January 17, 2020, the Program advised the claimant that his application for compensation was approved, but due to the length of time that had passed since the incident occurred, he was only entitled to funding for counselling therapy.

On January 27, 2020, the claimant asked that the Program reconsider its decision that he was only entitled to coverage for counselling. The claimant noted that he was not aware of the Program, and was on lengthy waitlists of up to 12 months for two counselling services while off work. The claimant requested that the Program reconsider the decision that he was not entitled to compensation for loss of wages.

On March 3, 2020, the Acting Executive Director of the Program confirmed the decision to deny the claimant's entitlement to wage loss benefits. The Acting Executive Director noted that subsection 51(2) of the VBR gave the Acting Executive Director the ability to extend the time for making an application under the Program. The Acting Executive Director went on to note, however, that under the Program's current policy, extensions were only granted where the applicant "…was mentally or physically unable to file an application or was a minor at the time of the incident."

On April 8, 2020, the claimant appealed the Acting Executive Director's decision to the Appeal Commission and a teleconference hearing was arranged for June 30, 2020.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the claimant for comment. On October 26, 2020, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

Applicable Legislation and Policy

The issue before the panel is whether or not the application for compensation is acceptable.

Provision for the compensation of victims of crime is set out in Part V of the VBR.

Subsection 51(1) of the VBR provides that an application for compensation must be made within one year after the date of the incident resulting in the victim's injury or within one year after 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 making an application for compensation where it is considered appropriate.

The Program has developed a policy (the "Policy") which sets out practices and procedures for granting an extension of time to apply for compensation. The Policy provides that each application is to be reviewed on a case-by-case basis to determine if an extension is warranted.

The Policy notes that factors which may support the granting of an extension include cases where the applicant was a minor or mentally incompetent, or where the applicant was medically or psychologically incapable of filing an application.

Claimant's Submission

The claimant's position, as set out in his Appeal of Victim Compensation Decision form dated April 5, 2020, was that:

I was mentally and physically unable to make my application in time, due to a pre-existing medical condition & PTSD that causes isolation and difficulty with daily tasks.

I was off work for 2 years due to PTSD, and have gone through exceptional losses & burdens.

In his oral submission at the hearing, the claimant indicated that the police had let him know about Victim Services after he filed his police report, and shortly after that he received a pamphlet or pamphlets in the mail from Victim Services. The claimant said he opened the envelope and tried to concentrate, but was not able to read what he had received. He said he did not know what happened, but he had become very disorganized, was very frustrated and upset, and threw the papers out.

The claimant said that he went to see a psychologist about four to five months after the incident, to speak about what he was experiencing. He said the discussion was brief, that he did not feel comfortable speaking with the psychologist and did not see her again. He subsequently applied to see a second psychologist, and first saw her on January 20, 2020. The claimant said he had seen this second psychologist seven or eight times since January 2020, and started a gradual return to work about two weeks before the hearing. The claimant indicated he was doing better, but still struggling a little, especially with evening work.

In his submission, the claimant relied heavily on correspondence from his treating psychologist dated March 31, 2020, which had been filed in support of his appeal. The claimant quoted the psychologist's report as stating, in part, as follows:

I am writing to provide some background information that will hopefully shed some light on [the claimant's] delayed request for wage compensation. He reported that in 2011 a psychiatrist diagnosed him with Psychotic Disorder Not Otherwise Specified. By 2012 he was on a stable dose of an antipsychotic medication, and was able to function well by sticking to a routine and focusing on self-care. Following the incident in January 2018, he was experiencing headaches that negatively impacted his ability to go out, which in turn led to isolation and difficulty engaging in his typical daily tasks. [The claimant] also reported some ongoing difficulties with executive function, including difficulty with planning, thinking ahead, and considering consequences of his actions. In this case, it resulted in him not understanding or realizing that there may be wage compensation available to him. [The claimant] indicated that when financial issues became more pronounced about a year and a half after the incident, and headaches were starting to improve, he began doing some searching which is when he came across the information about wage compensation. Overall, it is likely that a combination of [the claimant's] pre-existing mental health history, as well as headaches that limited his ability to function at his normal capacity, impaired his ability to realize that this aid may be available to him. Therefore, he did not take steps to pursue the application in the year that followed the incident.

The claimant also noted in his submission that he had recently met with a psychiatrist, who had provided a report to his family physician and was "starting him up on post-traumatic stress disorder medication." The claimant stated that he had not been able to get a copy of the psychiatrist's report in time for the hearing, and urged the panel to obtain and consider that report in our deliberations.

Analysis

The issue before the panel is whether or not the claimant's application for compensation is acceptable. For the appeal to be successful, the panel must find, on a balance of probabilities, that the claimant is entitled to compensation under the provisions of the VBR. The panel is unable to make that finding, for the reasons that follow.

In considering the claimant's application, the panel must apply subsections 51(1) and (2) of the VBR which deal with time limits for applying for compensation.

Subsection 51(1) sets a time limit for the filing of an application for compensation of one year after the date of the incident which results in the victim's injury or one year after the date the victim becomes aware of or knows or ought to know the nature of the injuries and recognizes the effects of the injuries.

The panel is satisfied, based on our review of all of the evidence which is before us, that the claimant did not meet the one-year time limit for filing an application for compensation as set out in subsection 51(1) of the VBR.

The panel finds that although the incident occurred on January 20, 2018, the claimant did not file his application for compensation until December 15, 2019, or almost two years after the incident occurred. The panel is further satisfied that the evidence shows that the claimant knew, or ought to have known, the nature of his injuries and recognized the effects of his injuries at the time of the incident, or shortly after thereafter.

In arriving at this conclusion, the panel notes that the claimant spoke at the hearing of becoming frightened after the incident, of withdrawing from friends and self-isolating in his house. The claimant talked about experiencing panic attacks at the grocery store and having to leave the store, or having panic attacks while driving around or in certain areas.

The claimant further indicated that he took six to eight weeks off work after the incident, returned to working on a gradual basis between March and May 2018, then ceased work entirely in June 2018. In response to a question from the panel as to whether he had a medical note to be off work, the claimant said that as a subcontractor, he did not need a medical note and it was his own decision or choice as to when or whether he worked.

Asked whether his symptoms were different from what he had experienced previously, the claimant said that they were very different, including that he would have a breakdown when making a delivery, or would have to call in to work to say he could not do any more deliveries. The claimant indicated that there were days he was driving and actually getting panic attacks, which resulted in visits to hospital emergency rooms on two occasions.

Relying on subsection 51(2) of the VBR, the claimant argued that he was mentally and physically unable to make his application in time. The panel is unable to accept that argument.

Although subsection 51(2) allows the panel to grant an extension of time where the panel considers it appropriate, the panel is of the view that this should be done in rare cases, with very compelling reasons to do so.

The panel notes that the claimant acknowledged at the hearing that he had been made aware of the Program within a couple of weeks of the incident when he spoke to the police and subsequently received a pamphlet from Victim Services, although he said he threw the pamphlet out. In the panel's view, the clear intent of the legislation 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 those rights in a reasonable time period. The claimant did not do so.

The claimant stated at the hearing that he had been seeing his family physician regularly, every two to three months between January 2018 and the present. The claimant indicated that it was his family physician who was monitoring the antipsychotic medication for his previous diagnosis of Psychosis Not Otherwise Specified and was refilling his prescription monthly. The claimant said he mentioned the January 20, 2018 incident to his family physician, but he did not discuss or raise any concerns with his physician with respect to this incident. When asked whether he raised concerns with respect to his functioning and the incident, the claimant said he raised concerns with respect to headaches, but did not raise or discuss concerns with respect to his "post-traumatic stress disorder experiences."

Following the hearing, the panel obtained and reviewed chart notes from the claimant's family physician dating from January 20, 2018 forward. In reviewing those chart notes, as well as copies of applications for disability benefits included with those notes, the panel found references to issues with respect to headaches and not feeling able to work, without mention of the January 20, 2018 incident.

While the claimant relied on the March 31, 2020 report of the treating psychologist, the panel is unable to attach much weight to that report. The panel notes that the report was prepared to provide some background information that would "hopefully shed light on [the claimant's] delayed request for wage compensation." The psychologist indicated that she first saw the claimant in January 2020. The panel finds that the psychologist's report is based on what she had been told by the claimant, and that her reasoning as to why the claimant did not take steps to pursue his application is speculative.

In response to a question from the panel as to why he believed he was unable to make an application to Victim Services, the claimant said that he thought the answer was in the statement from the treating psychologist, noting that the psychologist indicated that shortly after the incident, he reported some ongoing difficulties with executive function.

The panel further obtained and reviewed the psychiatrist's report to the family physician dated June 22, 2020, but is again unable to attach much weight to that report. The panel notes that the report indicates the psychiatrist assessed the claimant over the telephone for 45 minutes on June 10, 2020, well over two years after the January 20, 2018 incident. While the psychiatrist provided a diagnostic impression of PTSD, the panel finds that this was based on a history and symptoms as reported by the claimant during that attendance.

In conclusion, the panel is unable to find that the claimant was totally disabled or incapable of filing an application for compensation within the one-year limitation period as set out in the VBR, and is unable to identify any other compelling reason which might justify the granting of an extension of time for filing an application for compensation in this case.

The panel would further note that even if the claimant's application for wage loss or other benefits was not barred by the limitation period under the VBR, given the length of time that has elapsed and the medical information on file, we are unable to relate the symptoms or conditions the claimant has reportedly experienced to the January 20, 2018 incident.

The panel recognizes that the Program provided the claimant with funding for counselling to deal with the emotional trauma he was experiencing. The panel notes that this is consistent with the provision in the Policy 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 as indicated above, the panel is not satisfied that the claimant is eligible for or entitled to any other benefits than counselling.

In light of the foregoing, the panel finds, on a balance of probabilities, that the claimant is not entitled to compensation under the provisions of the VBR. The application for compensation is therefore not acceptable.

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 20th day of November, 2020