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 their wage loss benefits have been correctly calculated. A hearing was held on June 1, 2023 to consider the claimant's appeal.

Issue

Whether or not the claimant's wage loss benefits have been correctly calculated.

Decision

The claimant's wage loss benefits have been correctly calculated.

Background

The claimant applied for compensation under the Program on May 28, 2013 for an incident that took place on May 25, 2013 in which they were assaulted. The claimant sought treatment at a local hospital, which included surgery to repair an injury to their left eye. On May 30, 2013, the Program determined that the claimant was eligible for compensation; however, as the claimant was convicted of certain prescribed offences within the previous 5 years, some of their benefits, including wage loss, were reduced by 25%.

Due to ongoing issues with their left eye, the claimant required further surgery. After receiving notice their income replacement benefits would be exhausted in January 2023, the claimant applied to the Program for wage loss benefits in December 2022. The Program initially advised the claimant of an amount of their wage loss benefit entitlement, and then, on December 21, 2022, advised of a revised, reduced entitlement amount.

During a meeting with the Program on January 24, 2023, the claimant requested the Program reconsider the decision to reduce their wage loss benefit. The Director provided a decision in writing on February 13, 2023 confirming the decision to reduce wage loss benefits from the amount initially approved to the maximum allowed by legislation.

The claimant appealed the decision to the Appeal Commission on March 1, 2023 and a hearing was arranged.

Reasons

Applicable Legislation

The appeal panel is bound by The Victims’ Bill of Rights (“VBR”) and the regulations under that Act. The VBR creates a mechanism for victims of crime to make application for compensation for injury resulting from the commission of an offence.

Section 47 of the VBR allows a victim to be reimbursed for certain kinds of expenses incurred as a result of the injury, in accordance with the applicable regulations. As set out in s 47(c), this includes compensation for loss of wages if the victim is disabled by the injury. Section 49 of the VBR provides that compensation may be paid in a lump sum, by periodic payments or both, and may be subject to terms and conditions that the Director considers reasonable. Section 54.1 outlines that in certain specified circumstances, where a victim has been convicted of a prescribed or non-prescribed offence, the compensation may be denied or reduced.

Section 59 requires that the director must give written notice of their decision on determining an application for compensation under the VBR and provides that a claimant has the right to request reconsideration of that decision. A reconsideration decision may be appealed pursuant to s 60 of the VBR.

The Victims’ Bill of Rights Regulation, Manitoba Regulation 214/98, (the “Regulation”) sets out in s 8 that the amount of wage loss compensation is 55% of the victim’s gross reported wages or earnings for the 12-month period immediately before the incident, up to a maximum of $468 per week. The Regulation further provides in s 16.2 that the director may reduce compensation under s 54.1(4) of the VBR if the victim was convicted of two or more non-prescribed offences within the 5-year period before the incident that resulted in the injury, or within any 5-year period around the time of the incident or after the incident, and s 16.2(2)(a) provides that compensation may be reduced by 25% when the victim is convicted of two such offences. Section 16.2(3) confirms that when compensation is reduced due to a victim’s prior convictions, the amount of compensation payable for loss of wages or earnings under s 8 of the Regulation is also reduced by the same percentage.

Claimant’s Position

The claimant appeared in the hearing on their own behalf and provided an oral submission to the panel. The claimant also provided testimony through their own presentation and through answers provided to questions posed by members of the appeal panel.

The claimant’s position is that they should be entitled to wage loss benefits as they were initially advised by the Program case manager, in the amount of $879 biweekly based on the amount that the claimant was receiving for employment insurance benefits at that time. The claimant submitted that they relied upon the information provided by the case manager as to the amount of their wage loss entitlement in making subsequent decisions, to their detriment, including setting a date for their further surgical repair in April 2023, and refusing a more lucrative job offer in the interim. The claimant submits that the Program should be bound by the information initially provided to the claimant.

The claimant described to the panel that they accepted and relied upon the information provided by the Program case manager on December 5 and confirmed on December 6, 2022 that they would be paid biweekly benefits of $879 based on the claimant’s weekly employment insurance benefits of $586 multiplied by two, less 25% in relation to the claimant’s prior convictions. The claimant confirmed that on December 14, 2022 they were referred for their surgery and on the same date, they declined the job offer received on December 2, 2022, which was to pay a starting salary of $46,000. The claimant noted that on December 21, 2022, the Program case manager again contacted them to advise that they made a calculation error and therefore the wage loss entitlement would be $702 biweekly based upon the program maximum of $468 per week reduced by 25%. The claimant stated to the panel that “…if I would have known, I would put the surgery off and got laid off this winter and had the surgeries done, but now I'm locked in with multiple hospital visits and surgeries. And I'm still not good. So I'm in it for the long haul, but the amount that they're telling me is way below the poverty line.”

The claimant noted their understanding that the maximum weekly wage loss compensation amount has not been reviewed since 1999. The claimant acknowledged in their submission that: “I know they didn't break no rules, they didn't break no legislations, but for decisions and for somebody to be not trained in their department and give out information in emails about dollar wise, isn't my fault and they should be held accordingly.”

The claimant submitted that in these circumstances, the panel should make an exception to award a greater amount of wage loss compensation based upon the information provided and on file.

Analysis

The question on appeal by the claimant is whether the claimant’s wage loss benefits have been correctly calculated. For the claimant’s appeal to succeed the panel would have to determine that the Director, on reconsideration, failed to appropriately apply the provisions of the VBR and the Regulation in determining the amount of the claimant’s wage loss benefit entitlement. As detailed in the reasons that follow, the panel was unable to make such a finding and therefore the claimant’s appeal is denied.

The panel noted that the VBR provides for compensation of wage loss to a victim of a crime to be determined according to the Regulation. The Regulation outlines that the maximum wage loss that will be paid by the Program is $468 per week, which may be reduced according to the Regulation, where the claimant has been convicted of a “non-prescribed” offence within a relevant time period.

In the present claim, the claimant was convicted of two non-prescribed offences in the 5-year period prior to the incident giving rise to their claim under the VBR. As outlined in the decision of May 30, 2013, the result is that although the claim was approved, the claimant’s benefits are reduced by 25%. That decision applied to the claimant’s entitlement to wage loss benefits as well as other benefits and was not appealed at that time.

The evidence before the panel confirms that the claimant’s income leading up to the date of their present application for wage loss compensation was based on employment insurance benefits of $586 per week. This exceeds the maximum weekly benefit of $468 as set out in the Regulation. While the Program case manager initially calculated the claimant’s entitlement based upon their actual income rather than the maximum benefit under the Regulation, the Program soon afterward acknowledged that this amount was calculated in error and provided the correct information to the claimant. The panel noted that the corrected information was provided to the claimant more than one month before any wage loss payment was provided or due to the claimant.

Although we are sympathetic to the claimant’s position that they were prejudiced by relying upon the incorrect amount they were advised of on December 5 and 6, 2022, the panel is bound to apply the provisions of the VBR and the Regulation. The VBR provides that on receipt of an application for compensation, the director “shall determine, in accordance with this Act and the regulations, whether compensation is payable, and if so, the amount.” Further, the Regulation sets out that the amount of wage loss compensation paid under the provisions of the VBR is subject to the weekly maximum of $468. The panel considered whether the provisions of the Regulation and the VBR allow any discretion to be exercised in determining the amount or in authorizing an amount above the weekly maximum set out in the Regulation. We find that the Regulation does not provide the panel with any discretion in relation to the weekly maximum wage loss compensation amount as set out in s 8(2) of the Regulation.

In the claimant’s case, this amount is further reduced by the application of s 16.2(2) of the Regulation which provides that the amount of compensation may be reduced by 25% if the victim was convicted of two non-prescribed offences within the 5-year period before the incident in question. Further, s 16.2(3) confirms that this reduction applies to the amount of compensation payable to a victim for loss of wages or earnings under s 8 of the Regulation. The panel noted that the claimant was notified of the application of this provision to their claim on May 30, 2013, and is satisfied that the Program correctly applied the reduction to the calculation of the claimant’s wage loss compensation amount.

On the basis of the evidence before us and on the standard of a balance of probabilities, the panel is satisfied that the claimant’s wage loss benefits have been correctly calculated. The claimant’s appeal is therefore denied.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 4th day of July, 2023