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 she is not entitled to wage loss benefits under The Victims' Bill of Rights (the "VBR"). A file review was held on February 3, 2021 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 October 8, 2019, the claimant filed an application for compensation under the Program in respect of an incident which took place on July 11, 2019. The claimant stated she was assaulted while assisting a neighbour. The police were called and the claimant was taken by ambulance to a local hospital, then transferred to another hospital for further treatment. The claimant provided a statement to the police.

On January 14, 2020, the Program notified the claimant that her application for compensation was accepted and certain benefits were approved. The claimant was advised, however that her claim for wage loss benefits was denied, as "…according to section 8(3)(b) of the Victims' Rights Regulation (the "Regulation"), compensation for loss of wages or earnings would only be payable until the victim reaches 65 years of age."

On March 11, 2020, the claimant wrote to the Program to advise that she disagreed with the decision to deny her wage loss benefits, noting that she missed eight weeks' wages because of the assault. On May 27, 2020, the claimant filed a Request for Reconsideration with the Program. The claimant submitted that while she was over the age of 65, she still had to work and required that income to pay her bills.

By letter dated July 8, 2020, the Acting Executive Director of the Program confirmed that the claimant was entitled to compensation under section 47 of the VBR, but advised that in accordance with the legislation, the Program was unable to provide compensation for wage loss past the age of 65.

On July 25, 2020, the claimant appealed the decision of the Acting Executive Director to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation

The claimant is seeking compensation for wages lost as a result of the July 11, 2019 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: 

… 

(c) if the victim is disabled by the injury, compensation for loss of wages;…

General provisions regarding compensation are set out in Part 3 of the Regulation. Section 8 in Part 3 of the Regulation addresses 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 

(c) is unable to return to work or obtain comparable employment as a direct result of that injury; 

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

…

Duration of compensation 

8(3) Compensation for loss of wages or earnings is payable until the earlier of the following: 

(a) the director determines that the victim is able to return to work or obtain comparable employment; 

(b) the victim reaches 65 years of age; 

(c) the director terminates the compensation payable under section 12.2.

Claimant's Position

The claimant was self-represented. The claimant's position, as set out in her Appeal of Victim Compensation Decision form dated July 25, 2020, was that:

I wish to file an appeal to this decision of no compensation is payable due to the duration of payment provision, which says payments end when the victim reaches 65 years of age.

At the time of this incident I was working full time…and had not even received my CPP or OAS. The additional income is needed. I am only asking for the 8 weeks following this incident as I was only able (sic) return to part time after that. These lost wages were never granted to me back in 2019. My age should not have bearing on the time of the incident.

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 that the claimant is eligible for wage loss benefits under the VBR and Regulation. The panel is unable to make that finding, for the reasons that follow.

The claimant has an accepted claim for compensation as a result of the July 11, 2019 incident. While certain benefits have been approved, the claimant's application for compensation for loss of wages as a result of her injuries has been denied.

Subsection 47(c) of the VBR provides that a victim who is injured as a result of an incident, and is disabled by the injury, is entitled to compensation for loss of wages in accordance with the regulations.

The amount and duration of wage loss benefits which are payable to a claimant are specifically addressed in the Regulation. Under subsection 8(3) of the Regulation, compensation for loss of wages is payable until the earlier of three events, the second of which is that "(b) the victim reaches 65 years of age."

The evidence shows that the claimant was injured as a result of the July 11, 2019 assault and that she missed time from work due to her injuries. The evidence further shows that the claimant was 65 years old when the incident occurred.

The claimant has submitted that she should be entitled to wage loss benefits regardless of her age, as she was working full-time at the time of the incident. The claimant has said that she lost eight weeks' wages following the incident which she counted on to pay her bills, and that she was only able to return to part-time work after that. The claimant has argued that her age should have not have any bearing on her entitlement to wages. The panel is unable to accept that argument.

In the panel's view, the wording of subsection 8(3)(b) of the Regulation is clear and unambiguous. The claimant has not pointed to, and the panel has been unable to identify, anything in the VBR or the Regulation which would allow wage loss benefits to be paid to a victim where the victim is 65 years of age or older.

The Appeal Commission and its panels are bound by the VBR and the Regulation. The panel acknowledges the claimant's concerns and difficulties, but is unable to find that she is entitled to wage loss benefits under the VBR or the Regulation as a result of the incident or her injuries.

Based on the foregoing, the panel finds that the claimant is not eligible for, or entitled to, wage loss benefits under the VBR and Regulation.

The claimant's appeal is therefore dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. MacKay, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 1st day of April, 2021