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 her application for compensation under The Victims' Bill of Rights (the "VBR"). A teleconference hearing was held on September 15, 2020 to consider the claimant's appeal.

Issue

Whether or not in addition to discretionary counselling services, the application for compensation is acceptable.

Decision

The application for compensation is acceptable.

Background

The claimant filed an application for compensation under the Program on June 25, 2019 for incidents that took place when she was young. She reported repeated physical and sexual abuse by a family member that took place in Winnipeg when she was in her teens between 1976-78.

On September 23, 2019, the Program determined that the claim was not eligible for compensation under s 51(2) of the VBR as her application for compensation was made "…well beyond the one year time limit for filing an application with [the] program" and as she had not assisted law enforcement authorities in the apprehension and prosecution of the perpetrator.

On November 26, 2019, the claimant submitted a Request for Reconsideration to the Program providing a detailed chronology of the events that had occurred since she was a teenager and the effects those incidents have had on her life.

The Acting Executive Director of the Program confirmed the decision to deny the claimant's application on December 9, 2019 due to the extensive amount of time that had passed since the incidents; however, the Acting Executive Director also advised the claimant that due to the impact of the incidents on her, the Program would provide counselling benefits to her.

On January 19, 2020, the claimant appealed the decision to the Appeal Commission and a teleconference hearing took place on September 15, 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 interested parties for comment. On November 9, 2020, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

Applicable Legislation

The issue for determination is whether the claimant’s application for compensation under the provisions of The Victims Bill of Rights is acceptable. The VBR provides in s 46(1) that for purposes of determining compensation, a person is a victim if he or she is injured or dies as a result of an incident that occurs in Manitoba that is caused by an act or omission of another person that is an offence under the Criminal Code (Canada) as specified in the regulations. Section 46(2) clarifies that it is not necessary that a person be charged with or convicted of an offence in respect of the incident resulting in the injury or death.

Section 72(3) of the VBR confirms that for applications for compensation made relating to an incident that occurred prior to January 4, 1999 when the VBR came into effect, but after July 12, 1970, the application is subject to a two year time limit set out in The Criminal Injuries Compensation Act and that such an application is nonetheless deemed to be an application under the provisions of the VBR.

The VBR allows an extension of the time to bring an application under s 51(2) where it is appropriate to do so. Section 52(1) of the VBR requires that on receipt of an application for compensation, the director must determine whether compensation is payable and if so, in what amount.

Claimant’s Position

The claimant’s position is that the application for compensation should be accepted although it was made after the time required for such applications under the VBR.

In the application received by the Program on June 27, 2019, the claimant outlined that as a result of sexual assault by a family member she developed post-traumatic stress disorder (“PTSD”) and anxiety and suffers sleep disturbance due to nightmares. In that application she requested compensation relating to dental treatment, prescription drugs, counselling, transportation expenses related to seeking treatment, loss of income, cosmetic surgery, chiropractic treatment, massage therapy and an impairment award relating to scarring and PTSD. The applicant provided contact information for her physician, psychotherapist and dentist and gave her authorization to the Program to collect information needed to assess her eligibility for compensation.

In her submission to the panel, the claimant stated that she began to make a connection between her psychological and physical condition and the assaults that occurred in her teens when she heard a lawyer speaking on television about the impact of such assaults on victims. Upon reaching out to that lawyer, she learned that she may be entitled to some compensation arising out of her injury through victim compensation programs in the province where the injuries took place.

As set out in a letter from her treating psychotherapist dated August 28, 2017, on file, in April 2017 the claimant was referred to the psychotherapist by her physician. At that time, the claimant sought treatment for panic attacks triggered by seeing a person who reminded her of the family member who had abused her. The psychotherapist assessed and worked with the claimant over the next several months and arrived at a provisional diagnosis of post traumatic stress disorder with panic attacks, based upon the claimant’s report of traumatic memories relating to physical and sexual abuse by a family member that took place over the course of several years when she was a teen in the 1970s. The psychotherapist’s letter to the claimant’s physician described the evidence-based treatment undertaken to that date and noted the claimant did not respond favourably to it. The psychotherapist also noted the impact of the claimant’s symptoms on her ability to earn income and the resulting financial stress.

In her testimony, the claimant outlined to the panel the circumstances of the incidents of abuse she was subject to beginning when she was 13 years of age. She described to the panel other incidents in the years that followed and the impact of the assaults on her later life. She noted that she was assessed by a psychiatrist in 2004 arising out of another situation, but that she did not appreciate the impact of the assault on her mental health until 2017 when she began to see the psychotherapist.

The claimant explained to the panel that she did not pursue charges against the perpetrator of the assaults against her during her teens as a result of a distrust of police that arose in the intervening years through some negative experiences. On questioning by the panel, the claimant indicated she was not sure if she would be willing to participate in any police investigation at this time, noting that she had learned earlier this year that the perpetrator died in March 2020.

The claimant confirmed to the panel that with her application for compensation she is seeking acknowledgement of the harm done to her, as well as compensation for dental treatment, transportation costs for travelling to and from therapy, cosmetic surgery expenses relating to addressing scarring that arose of out the assaults, chiropractic care and lump sum compensation for wage loss over the intervening period.

The claimant described feeling broken, guilty, and ashamed, leading to mental incapacitation, because of the physical and sexual assaults that occurred when she was a teen. She described feeling revictimized by the process of seeking compensation.

Analysis

The issue before the panel is whether, in addition to discretionary counselling services, the application for compensation is acceptable. For the claimant's appeal to succeed, the panel must find, on a balance of probabilities, that the claimant is eligible for benefits under the provisions of the VBR and that the application was made on time. The panel was able to make such findings for the reasons that follow.

Is the claimant eligible to make a claim under the VBR?

When an application for compensation is received, the Program must determine whether the claimant is eligible to make an application. Eligibility is based upon the whether the applicant meets the definition of victim under s 46(1) of the VBR which sets out that a person is a victim if they are injured or die as a result of an incident that occurs in Manitoba that is caused by an act or omission of another person that is a specified offence under the Criminal Code (Canada) as set out in the VBR regulations.

Here, the claimant testified that she was the victim of multiple physical and sexual assaults by a family member that took place in Winnipeg beginning in or after 1976 and continuing until 1978. She described these facts in her 2019 application for compensation. She also set out these facts in her 2005 communications with police. There were no criminal charges arising out of her allegations, but that is not required as set out in s 46(2) of the VBR. Sexual assault is a specified offence under the VBR regulation. As a result of these assaults, the claimant testified, she was injured and continues to experience the effects of that injury. The August 28, 2017 letter from the claimant’s treating psychotherapist supports the claimant’s position that she experienced a psychological injury arising out of the criminal incidents that occurred during her teens.

Based upon the information on file and the claimant’s testimony, the panel finds that the claimant is eligible to make an application as she was injured as a result of an incident that occurred in Manitoba caused by an act of another person that is an offence under the Criminal Code (Canada) as specified in the regulations.

Was the claimant’s application made on time?

Determining eligibility also requires that the claim be made within the time required under the applicable legislation. The panel therefore considered whether the application was made on time, and if not, whether the claimant should have been granted an extension to make her claim under s 51(2) of the VBR.

Although not binding upon us, the panel considered the provisions of the VBR Policy in this regard. The Policy specifically contemplates, in part 3.1 Statute of Limitations (Time Limit to Apply) that an application may be made outside the statutory application period in cases of historical sexual assault and sets out that in such a case, an extension may be provided and the application allowed after the one-year time frame taking into account that in such cases, the injury may remain latent or unknown until the victim is well into adulthood. For this reason, information as to when the claimant learned of the nature or effect of an injury is relevant, even if it occurs many years after the incident. The Policy sets out that that the primary consideration in exercising this discretion should be on the impact the delay may have on the Program’s ability to properly investigate and adjudicate a claim. The Policy also sets out that a police report must be filed, and the victim must be prepared to proceed with charges if these actions have not already occurred. Further, the Policy notes that claims submitted for an incident that occurred after July 12, 1970 and prior to January 4, 1999 are subject to a two-year limit.

The evidence before the panel is that the injury to the claimant occurred beginning in or after 1976 with ongoing effects that continue to the present. The claimant made her application for compensation to the program in June 2019 but testified that she did not become aware until the summer of 2017 that the psychological symptoms she was experiencing related to the assaults perpetrated upon her in 1976-1978.

The claimant’s testimony as to when she learned of the nature and effect of the assaults on her psychological health is supported by the August 28, 2017 report from the claimant’s psychotherapist to her family physician. At that time, the psychotherapist provided a provisional diagnosis of PTSD related to the trauma the claimant described arising out of these assaults.

When the claimant made application to the Program for compensation in June 2019, more than 40 years had passed since the incident occurred, but less than two years had passed since the claimant learned the nature, impact and extent of her psychological injury resulting from the criminal incidents.

After the hearing, the panel sought and obtained further information from the Program as to how it applied the Policy provisions in adjudicating the claimant’s application. The Acting Director advised that the key areas for consideration under the Policy provisions were whether any exceptions to the limitation period applied, noting that “Given [the claimant] identifies childhood sexual abuse as one of the criminal offences, she would qualify for an exception to the time limitation....” Further, the Program considered what impact the delay in applying may have had on its ability to properly investigate and adjudicate the claim and the option of awarding only counselling benefits “...if an extensive amount of time has passed since the criminal injury....”

The panel noted that the claimant made a detailed report to police arising out of these incidents as early as June 2005, resulting in an occurrence report. That report noted that the claimant was not at that time interested in pursuing the investigation of the historical sexual assaults but also noted that she was informed that if she wished “...to pursue the historical sexual assault at a later time that she could contact the writer.” Eleven days later, on speaking with the police on another matter, the claimant indicated again she did not wish to pursue the historical sexual assault at that time and the investigation was then “suspended.”

The panel finds that the evidence does not support the initial determination that the claimant was not cooperative in the apprehension and prosecution of an accused person. Indeed, on reconsideration, the Acting Director noted that the police investigation had been suspended and that the claimant would need to contact the police to pursue the criminal matter, and did not reference this consideration in addressing the rationale behind the reconsideration decision.

The primary consideration applied by the Program in determining the claimant’s application was not acceptable was that the Program did not have the ability to determine the claimant’s eligibility for the specific benefits claimed as a result of the significant period of time between the criminal incident and the claim. While this is consistent with the Policy provisions, the panel does not agree that this is an appropriate consideration in considering whether an extension can be granted under s 51(2) of the VBR; rather, this may be an appropriate consideration on adjudication under s 52(1) as to whether compensation is payable and in what amount.

Although she brought these incidents to the attention of police as early as 2005, the claimant did not come to understand the impact of the incidents upon her mental health until the 2017 provisional diagnosis of PTSD as arising out of those assaults. She then brought her application for compensation within two years of learning of the extent of the injury she sustained. Even if she had not done so within that time period, the panel is satisfied that in these circumstances it is appropriate to exercise its discretion to extend the time for the claimant’s application for compensation and permit the application to be accepted.

Is the claimant entitled to additional compensation?

Upon determining that an application is acceptable, the next step in the adjudication of the claim is for the Program to determine, under s 52(1) of the VBR whether compensation is payable and if so, in what amount. In this case the claimant requested compensation for expenses related to dental treatment, prescription drugs, counselling, transportation expenses related to seeking treatment, loss of income, cosmetic surgery, chiropractic treatment, massage therapy and an impairment award relating to scarring and PTSD.

While there is some evidence of expenses provided by the claimant to the Program, there is no indication that the Program made any further inquiries or sought to gather any additional information from the claimant as to the details of her claimed expenditures or made any inquiries of the treating medical professionals as to the extent of the claimant’s impairment, if any, relating to the injury sustained.

The Program did determine on reconsideration by the Acting Executive Director that although the claimant was out of time in making her application, she was nonetheless entitled to discretionary counselling benefits under the provisions of the program policy. As the provision of those benefits is not under appeal, we make no decision with respect to that determination.

Given the absence of evidence that any determination was made by the Program with respect to the claimant’s specific benefit entitlements beyond the discretionary counselling benefit, the panel directs the Program to consider whether the claimant is entitled to additional benefits and if so, in what amount.

Having concluded that the claimant is eligible to make application for compensation under the VBR and that the application was made within the required time period, the panel finds on a balance of probabilities that the application for compensation is acceptable and directs the Program to consider whether the claimant is entitled to additional benefits and if so, in what amount.

The appeal is allowed.

Panel Members

K. Dyck, Presiding Officer
J. MacKay, Commissioner
S. Briscoe, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 26th day of November, 2020