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 their application for compensation under The Victims' Bill of Rights (the "VBR"). A videoconference hearing was held on October 27, 2021 to consider the claimant's appeal.

Issue

Whether or not the application for compensation is acceptable.

Decision

The application for compensation is acceptable.

Background

On December 13, 2017, the claimant filed an application for compensation under the Program for an incident that took place on August 20, 2011 in which the claimant was assaulted, found by passersby, and taken to the hospital by ambulance.

On December 19, 2017, the Program determined that the claim was not eligible for compensation under s 51(1) of the VBR on the basis the incident occurred more than six years before the application and was therefore outside the one-year timeframe for application required by the VBR.

On May 13, 2021, the claimant submitted a Request for Reconsideration noting that since the incident, they had been experiencing ongoing difficulties as a result of the surgeries they had undergone as a result of the assault.

On June 2, 2021, the Executive Director of the Program confirmed the prior decision to deny the claimant's application noting “…excessive delays make it impossible for the program to reasonably determine the extent of the original injury” and that almost ten years had passed since the incident, exceeding the one-year application time limit in the VBR.

On July 8, 2021, the claimant appealed the decision to the Appeal Commission and a videoconference hearing was arranged for October 27, 2021.

Following the hearing, the appeal panel requested additional information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On January 6, 2022, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

Applicable Legislation

The panel is bound to apply the provisions of The Victims’ Bill of Rights and the regulations under that Act.

The question for determination is whether the claimant’s application for compensation under the provisions of the VBR 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 47 of the VBR provides that a victim who is injured as a result of such an incident is entitled to reimbursement for expenses prescribed in the regulation that were incurred as a result of the injury, compensation for related counselling services, compensation for loss of wages if the victim is disabled by the injury and compensation for impairment if the victim is permanently impaired by the injury.

The VBR requires, in s 51, that an application for compensation must be made within one year after the date of the incident that results 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. The VBR also allows an extension of the time to bring an application under s 51 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.

The Victims’ Rights Regulation, Manitoba Regulation 214/98 (the “Regulation”) provides in s 4 that for the purpose of s 46(1)(a) of the VBR, an application for compensation may be made in respect of the offences under the Criminal Code (Canada) listed in Schedule A to the Regulation.

Claimant’s Position

The claimant appeared before the appeal panel on their own behalf and outlined to the panel why they believe their appeal should be granted. The claimant also provided testimony through answers to questions posed by the members of the appeal panel.

The claimant’s position is that they should be eligible for compensation under the VBR as they were injured as a result of a criminal assault that took place on August 20, 2011 and further that they continue to experience the effects of that injury in terms of ongoing mental health impacts, two recent surgeries and loss of sight in their left eye.

The claimant described the circumstances of the assault to the panel and indicated that the perpetrator of the assault was someone they were seeing or dating at that time. The claimant confirmed that they testified against the perpetrator in a trial and that the perpetrator was convicted of aggravated assault.

The claimant described to the panel how they began to experience vision problems in 2020 and sought medical attention as a result. The claimant was referred to specialists and ultimately was assessed by a surgeon who determined that the claimant’s vision difficulties were caused by a fragment of metal from the initial surgical repair in 2011. The claimant testified to losing vision in that eye and that there was no chance of regaining it. As a result, the claimant indicated they are unable to drive their children to school and their appearance is affected. The claimant also stated they suffer from post traumatic stress disorder and anxiety as a result.

The claimant stated that they did not make any claim to the Program regarding their eye in 2017 as it was not an issue at that time, but after the surgery in 2021, reapplied to the Program by appealing the initial refusal. The claimant indicated that although they received supports from the Victim Services Program in relation to the trial, they were not advised of the existence of the Program at that time.

Analysis

The issue before the panel is whether 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 they were the subject of an aggravated assault carried out by the person they were involved with at that time. The assault took place in Winnipeg in August 2011 and resulted in the perpetrator being charged and convicted. The claimant provided testimony in the trial that resulted in that conviction. The file documents include the arrest report which confirms the perpetrator of the assault was charged with aggravated assault, among other charges, on August 20, 2011 in relation to this incident and convicted on January 15, 2013. The arrest summary details that the perpetrator and claimant were involved in a relationship for the previous 5 months and that in the early morning hours of August 20, 2011 the perpetrator severely assaulted the claimant in the face and head and subsequently pushed the claimant out of a moving vehicle onto the street.

The panel notes that aggravated assault is a specified offence under the VBR regulation. As a result of the assault, the claimant testified they were injured and required surgery. In April 2020, the claimant began losing vision and sought medical attention and was ultimately referred to a specialist in January 2021. The specialist determined a metal artifact from the initial surgical repair 2011 had broken off and was causing damage to the claimant’s eye. The claimant has had two subsequent surgeries to repair that damage and indicated that there is no chance that they will regain vision in that eye.

The claimant further testified that they sought counselling on a few occasions after the incident and continue to experience panic attacks as a result of the assault.

The medical information on file confirms the nature and extent of the claimant’s physical injuries, including the 2021 surgical procedures undertaken to address the damage caused by the movement of the artifact from the initial surgical repair in 2011.

Based upon the information on file and the claimant’s testimony, the panel finds that the claimant is eligible to make an application as they were 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 their claim under s 51(2) of the VBR.

Although not binding upon us, the panel considered the provisions of the Compensation for Victims of Crime Policy (the “Policy”) in this regard. The Policy specifically contemplates, in part 3.1 Statute of Limitations (Time Limit to Apply) that there is no timeline expectation applicable in cases of an assault that was sexual in nature, or where the victim had an intimate relationship with the offender or where the victim was financially, emotionally, physically or otherwise dependent on the offender. Thus, the Policy allows for an application to be made outside the statutory application period in such cases. The Policy further sets out that claimants have a right to make an application upon first learning of the nature or impact of an injury even if this occurs many years post-incident and in these cases an exception form is not required. 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 defines “nature of the injury” as referring to the physical or emotional symptoms that can be directly attributed to the compensable event and “effect of the injury” as referring to the impact that the injury has had on the physical and mental wellbeing of the claimant.

The Policy also 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, and requires that a police report must be filed, and the victim must be prepared to proceed with charges if these actions have not already occurred. The Policy further provides that if an extensive amount of time has passed since the criminal injury, the claimant may only be eligible for counselling benefits.

The evidence before the panel is that the injury to the claimant occurred on August 20, 2011 but that the claimant continued to experience ongoing effects of the injuries, both physical and psychological, that continue to the present. When the claimant first made application to the Program for compensation on December 12, 2017, more than 6 years had passed since the incident occurred. The claimant indicated on that application that they were assaulted by their boyfriend at the time and did not make any application sooner out of fear of repercussions. The claimant described multiple serious injuries including a punctured lung, surgical plate in their left cheek, abrasions, concussion, shattered nose, and indicated their eye was still painful and bothering them continuously, their neck was painful and they were experiencing continuous nightmares and were fearful of being alone or living alone. Despite the information that the claimant was assaulted by an intimate partner, the initial application was refused on the basis it was out of time. On May 13, 2021, the claimant made a further application to the Program, by appealing the initial decision to the Director of the Program soon after becoming aware of the further effects arising out of the initial surgical repair from 2011 that caused permanent damage to the claimant’s left eye, including loss of vision in that eye.

The medical reports obtained confirm that the claimant would only have become aware of the ongoing nature and effect of the assault on their left eye at some point in time after the MRI study of March 24, 2021. It was this imaging that confirmed the surgical repair undertaken on August 20, 2011 resulted in portion of the surgical plate penetrating into the vitreous body near the lens of the claimant’s left eye. The claimant underwent surgery on March 25, 2021 to remove the metallic foreign body, and subsequently required further corrective surgery that took place on August 25, 2021.

The panel also received and reviewed clinical chart notes from the claimant’s treating medical practitioners from 2017 through to 2021 which confirm the worker’s reporting of symptoms of anxiety and post-traumatic stress disorder during that time period, although it is unclear from those records whether these symptoms arose out of or are related to the incident in 2011.

The panel also noted that the claimant made a report to police arising out of the incidents in August 2011, resulting in multiple charges against the perpetrator, including criminal negligence in the operation of a motor vehicle cause bodily harm, aggravated assault, assault and uttering threats (cause death or bodily harm). Ultimately the perpetrator was convicted of aggravated assault, following a trial in which the claimant provided testimony.

The primary consideration applied by the Program on appeal 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 determining whether an extension can be granted under s 51(2) of the VBR, although it may be appropriate to consider on an adjudication under s 52(1) as to whether compensation is payable and in what amount.

Although aware of their initial injuries arising out of the incident in 2011, the claimant in this case did not come to understand the lasting impact of the incident upon their vision until March 2021. Upon learning of the reason for their left eye difficulties, the claimant again made application for compensation, appealing the 2017 decision to the Program Director within weeks of learning the full extent of the damage to their left eye resulting from the assault.

In the circumstances and applying the provisions of the Policy that create an exception to the time limit in cases of assault by an intimate partner, the panel is satisfied that in these circumstances it is appropriate to exercise discretion to extend the time for the claimant’s application for compensation and permit the application to be accepted.

Upon determining that an application is acceptable, the next step in the adjudication of a 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, following the initial determination by the Program that the claimant’s application was out of time, 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 any 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 Director that although the claimant was out of time in making application, they were 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 comment 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 time for application should have been extended to permit it to be accepted, 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. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 13th day of January, 2022