The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The claimant is appealing the decisions by the Manitoba Compensation for Victims of Crime Program (the "CVCP") denying reimbursement of certain expenses under The Victims' Bill of Rights (the "VBR"). A videoconference hearing was held on February 11, 2021 to consider the claimant's appeal.

Issue

Whether or not there should be reimbursement of funeral expenses in excess of the amounts paid, or of the cost of a headstone;

Whether or not there should be reimbursement for hotel expenses; and

Whether or not responsibility should be accepted for massage therapy treatments or doctors' notes.

Decision

That there should not be reimbursement of funeral expenses in excess of the amounts paid, or of the cost of a headstone;

That there should not be reimbursement for hotel expenses; and

That responsibility should not be accepted for massage therapy treatments or doctors' notes.

Background

On August 20, 2019, the claimant filed an application for compensation under the CVCP in respect of an incident where a family member was struck by a vehicle and killed. The claimant reported having incurred funeral expenses and costs for counselling as a result of the victim's death.

By letter dated October 4, 2019, the CVCP advised that benefits received from any other program that were directly related to the compensable incident must be taken into consideration, and compensation might be reduced or denied based on such information. The CVCP noted that given the nature of the incident in this case, another compensation program would be the first payor on the claim.

The CVCP noted that they recognized counselling support had been received from the other compensation program, but that all of the counselling funding through that program had been exhausted. The CVCP advised that recognizing the importance of support through the ongoing criminal/court process, they were exercising their discretion and offering further grief counselling support, the legislated maximum for which was $4,000 per eligible family member.

On October 22, 2019, the claimant requested that the CVCP reconsider the decision to deny part of their application for compensation. The claimant requested a breakdown of costs deducted from their claimed items and compensation for items which were not compensated by the other program, including remaining funeral costs, a headstone, doctors' notes, a hotel stay and massage therapy.

By letter dated September 2, 2020, the Acting Director of the CVCP responded to the reconsideration request, noting decision emails had been sent on October 28, 2019 and November 12, 2019, copies of which were attached. The Acting Director confirmed in particular that the funeral expenses paid by the other compensation program were in excess of the amount the CVCP paid, and the director was required under the legislation to deduct the amount paid by another compensation plan from the amount payable by the CVCP. The October 28, 2019 email had also indicated that doctors' notes and massage therapy could not be reimbursed, as they were not eligible benefits under the legislation, and that the CVCP would require further information to assess the reimbursement request for hotel expenses.

On October 2, 2020, the claimant appealed the Acting Director's decision to the Appeal Commission and a videoconference hearing was arranged.

Following the hearing, the appeal panel provided the claimant with additional information for comment. On September 13, 2021, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation

The VBR creates a mechanism for victims of crime and others to apply for compensation under the CVCP for injuries resulting from the commission of an offence.

The Appeal Commission and its panels are bound by the VBR and regulations made under the VBR, and consider the policies established and approved by the CVCP.

Subsection 48(1) of the VBR provides for compensation to family members of deceased victims, as follows:

48(1) If a victim dies as a result of an incident described in subsection 46(1), the spouse or common-law partner of the victim and a parent, child or sibling of the victim are entitled, in accordance with the regulations, to

(a) reimbursement for expenses prescribed by regulation that were incurred as a result of the death; and

(b) compensation for related counselling services.

Subsection 48.2(2) of the VBR also provides for compensation for funeral expenses, as follows:

48.2(2) A person who incurs funeral expenses in respect of a victim's death is entitled, in accordance with the regulations, to reimbursement of those expenses.

Subsections 7.1(1) and (2) of the Victims' Rights Regulation (the "Regulation") address coverage under other compensation programs, and provides:

7.1(1) Subject to subsection (2), no compensation is payable under this Part in respect of eligible products or services if a person is or would be entitled to receive those products or services under

(a) an accident, sickness or other insurance policy or other private compensation scheme; or

(b) another program operated by any level of government.

7.1(2) If a person has exhausted his or her entitlement to eligible products or services under an insurance policy or other private compensation scheme or another government program, the director may, in his or her discretion, cover the cost of additional eligible products or services for that person.

Section 14.1 of the Regulation addresses compensation to family members of a deceased victim, and states, in part, as follows:

14.1 If a victim dies as the result of any accident, the spouse or common-law partner of the victim and the parents, children and siblings of the victim are entitled to the following:

(a) counselling services required as a direct result of the death of the victim, to a maximum of $2,000, unless the director is satisfied that exceptional circumstances exist and a reasonable treatment plan is in place, in which case the director may approve additional counselling to a further maximum of $2,000;

(b) compensation for travel and accommodation expenses incurred in order to attend the victim's funeral or counselling sessions, at rates established by the director….

Section 16 of the Regulation addresses compensation for funeral expenses, as follows:

16 If a victim dies as the result of an incident, compensation is payable to the person who paid for the victim's funeral, to a maximum of $5,400.

The CVCP has established a Policy Manual which outlines specific policies and procedures for the application and consideration of claims made under the VBR. Policies addressing compensation and benefits, as they relate to the issues in this case, include:

• 1.0 – Benefit Entitlement; 

• 6.1.1 – Benefits Payable upon the Death of a Victim (General); 

• 6.1.2 – Funeral and Related Expenses; 

• 6.1.3 – Travel and Accommodation Costs for Immediate Family Members of a Deceased Victim to Attend the Funeral; 

• 6.4.6 – Massage Therapy and Acupuncture; 

• 6.5.3 – Accommodation Provisions & Meal Allowance Rates.

Claimant's Position

The claimant was represented by two immediate family members of the deceased victim, who provided a written submission in advance of the hearing. The representatives made an oral presentation at the hearing and responded to questions from the panel.

The claimant's position was that in addition to the loss of a family member, they have incurred significant financial costs as a result of their family member having been struck by a vehicle and killed, for which they are entitled to be compensated.

The representatives submitted that although the CVCP has said that another compensation program has paid for the items for which they are seeking reimbursement or compensation, that is not the case. The representatives acknowledged they were paid certain amounts by the other compensation program, but submitted that they are not seeking duplication of payments or benefits they received from that program. Rather, they are asking to be reimbursed or compensated for items that were not paid for or covered by the other program, some of which had not yet even been purchased.

The representatives referred to subsection 7.1(1) of the Regulation and submitted that the CVCP was mistaken in its interpretation of the legislation. The representatives noted that as it related to coverage under other programs, subsection 7.1(1) refers to payment a person is entitled to receive for "those" products or services, not "any" products or services. The representatives submitted that the section is intended to prevent duplication of payments for the same item. They further submitted that this "protocol" of avoiding duplication of benefits is consistent with all provincial government programs. They noted, however, that what they are requesting is not duplication of payments, but compensation for other items for which they have not been paid.

With respect to funeral expenses, the representatives stated that they had received the maximum amount for funeral expenses from the other compensation program and applied that amount to those expenses. Actual expenses, however, exceeded that amount by approximately $3,500. They had asked the CVCP to provide a breakdown of costs deducted from their claimed items, but this was not provided. The representatives submitted that they were entitled to compensation for additional claimed expenses which were not covered by the other program.

The representatives went on to state that the most important and biggest item for which they were seeking compensation was a headstone. They submitted that this was a separate expense, and did not form part of, but was in addition to, the funeral expenses. They stated that in fact, they had not yet purchased a headstone, and had therefore clearly not been reimbursed by, or received any offer of compensation from, the other benefit program for such an expense. In their view, this was obviously not a duplication of payments, and funding for a headstone should be approved.

The representatives noted that although the CVCP is described as a program that gives compensation to victims who have been injured, physically or emotionally, various other requests for compensation were denied, including their requests for reimbursement of hotel expenses and acceptance of the costs of massage therapy treatments. With respect to hotel expenses, the representatives noted that they had been unable to remain in their home overnight right after their family member was killed, and had therefore stayed in a city hotel, where they were also able to meet with numerous extended family members who lived in the city. The representatives therefore asked that they be reimbursed for one night's stay at the hotel.

With respect to massage therapy treatments, the representatives acknowledged that the other compensation program had provided some money for counselling for family members and the CVCP had offered further funding for counselling. One of the representatives stated she had seen several counsellors using the money from the other program, but this had not helped, and she had not touched any of the money which the CVCP had offered her for counselling. The representative noted that different things help different people, and her doctor had told her to go for something that would relax her. She therefore chose massage therapy, instead of further counselling. She stated that the massage therapy had helped her as a stress reliever, and she intended to continue going for such treatment. She was therefore asking for reimbursement of her current massage costs and that additional massage sessions for her be approved.

Finally, the representatives indicated that they had been seeking to be reimbursed for certain doctors' notes. Noting that they understood this cost might be reimbursed by other means, they had indicated in their written submission that they were withdrawing this request. The representatives later filed copies of five doctors' notes prior to the hearing, and explained at the hearing that this cost had not been reimbursed. The representatives therefore asked that the request that they be reimbursed for the doctors' notes also be included in the appeal and approved.

Analysis

The claimant and its representatives are seeking compensation for various expenses incurred as a result of the incident which resulted in the death of a family member. For the appeal to be successful, the panel must find that the application for such benefits satisfies the requirements of the VBR and the Regulation. The panel is unable to make that finding, for the reasons that follow.

As indicated previously, the panel is bound by the VBR and the Regulation made under the VBR. The CVCP and the panel are limited in terms of the benefits or expenses which can be awarded, to those which are prescribed and allowed by the legislation. Based on a careful review and consideration of all of the evidence and the submissions of the claimant, on file and as presented at the hearing, the panel is satisfied that the claimant's requests for further benefits or compensation exceed what is prescribed and allowable under the legislation and are therefore not acceptable.

With respect to the request for further funeral expenses, the panel notes the evidence shows the representatives, who paid the funeral expenses, were reimbursed by the other compensation program to the maximum allowable amount under that program. There is no dispute that the other program was the first payor, and that the amount which was paid by that program exceeded $5,400, being the maximum amount which is specified under section 16 of the Regulation.

Subsection 48.2(2) of the VBR provides that a person who incurs funeral expenses in respect of a victim's death is entitled, in accordance with the regulations, to reimbursement of those expenses. Section 16 of the Regulation goes on to provide that "…compensation is payable to the person who paid for the victim's funeral, to a maximum of $5,400." The panel finds that the wording of those sections is clear, with the maximum overall dollar amount payable for funeral expenses being $5,400. The panel further finds that the CVCP was required under the legislation to offset the amount which had been paid by the other program in respect of funeral expenses against the amount which was payable under the VBR, and as that amount was in excess of the maximum amount payable under the Regulation, the CVCP was unable to pay or reimburse any further or other funeral expenses incurred.

The representatives have argued that what they are requesting is not duplication of payments, but compensation for items or funeral expenses for which they have not been paid. The panel is unable to accept that argument. The panel notes that while a detailed list of actual funeral expenses had been provided by the claimant and is on file, the evidence indicates that compensation under the other compensation program was based on the overall dollar amount which was payable for funeral expenses, as opposed to individual items or expenses on that list. The panel is satisfied that the $5,400 maximum under the CVCP similarly relates to overall funeral expenses. The panel notes that this is consistent with the CVCP's Policy 6.1.2, Funeral and Related Expenses, which lists various types of expenses which may be eligible for compensation under that program, while expressly noting that "All funeral and related costs that are eligible for compensation are subject to the legislated maximum of $5400.00."

While the representatives also specifically argued that funding or compensation should be provided for a headstone as a separate expense which had clearly not been reimbursed, having not yet been purchased, the panel is unable to accept that argument. The panel notes that the CVCP's Policy 6.1.2 lists an expense for a grave marker as an expense which may be considered for compensation as a funeral and related expense. However, given the panel's finding that an amount in excess of the maximum allowable amount for funeral expenses under the VBR and Regulation had already been paid, the panel is unable to find that a further expense for a headstone is eligible for reimbursement.

In arriving at our conclusion on this point, the panel also considered subsection 7.1(2) of the Regulation. The panel was satisfied, however, that to the extent that subsection 7.1(2) may allow for an exception for additional coverage, it would not be appropriate to cover such an additional expense in the circumstances. The panel was further unable to identify any other provision under the VBR or Regulation that would entitle the claimant or the representatives to be compensated for a headstone or grave marker.

The panel is also unable to accept the representatives' position that they should be entitled under the CVCP to be reimbursed for one night's stay in a hotel when they felt unable to remain in their home overnight following the incident. The panel notes that subsection 14.1(b) of the Regulation entitles immediate family members to compensation for travel and accommodation expenses in certain specified circumstances only, namely to attend the victim's funeral or counselling sessions. The panel finds that the wording of this section is clear, and is unable to find that the hotel expenses for which the representatives are seeking reimbursement are eligible for compensation under the VBR or Regulation.

The representatives have also sought reimbursement for massage therapy sessions, as well as approval for further such sessions for an immediate family member of the deceased victim. The panel is again unable to find that such treatment is authorized or allowable under the VBR or the Regulation. The panel notes that the evidence shows the CVCP authorized further counselling for family members, in addition to that which had been provided by the other compensation program, to the maximum allowable amount of $4,000. The panel acknowledges the representative's position that while she had attended counselling through the other compensation program, it did not help her; that her doctor told her to go for something that would relax her; that she chose to go for massage therapy instead of counselling; and that massage therapy had helped her by relieving stress. The panel notes that subsection 11.1(2)(i) of the Regulation provides that compensation may be paid for massage therapy in relation to the treatment of a victim's injuries, but there is no such provision in respect of massage therapy treatment for the family member of a deceased victim. In the circumstances, the panel is unable to find that the representative was entitled to substitute or be compensated for massage therapy treatments in lieu of, or in addition to, counselling under the legislation.

The panel also considered the representatives' request that they be reimbursed for the cost of five doctor's notes which they were obliged to obtain in applying for insurance from a third party insurer due to their being unable to work for a considerable period of time. The representatives noted that the insurance was eventually approved, but the doctors' notes were not covered. Based on the evidence which is before us, the panel is unable to find that such costs are eligible for coverage under the VBR and Regulation.

Based on the foregoing, the panel finds that the claimant's application for reimbursement or approval of expenses incurred as a result of the incident does not satisfy the requirements of the VBR and the Regulation. The panel therefore finds that there should not be reimbursement of funeral expenses in excess of the amounts paid, or of the cost of a headstone; that there should not be reimbursement for hotel expenses; and that responsibility should not be accepted for massage therapy treatments or doctors' notes.

In closing, the panel would note that the CVCP has developed a number of policies which address compensation and benefits, including those which are listed above as relating to the issues in this case. Unfortunately, those policies did not appear to have been made available or accessible to the claimant or the representatives in this case prior to the hearing of the appeal on February 11, 2021. Copies of the policies were provided to the claimant's representatives by the panel following the hearing, for their comment. The panel is of the view, however, that had those policies been made available or provided to the representatives or family members from the outset or at least earlier in the process, it might have helped clarify the issues and lessen some of the stresses and feelings of frustration arising out of an already unfortunate and very difficult situation.

The claimant's appeal is 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 12th day of October, 2021