The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:

1. The vocational rehabilitation plan associated with the National Occupation Classification (NOC) 4412 – Home support workers, housekeepers and related occupations is appropriate; and 

2. The implementation of the deemed earning capacity effective January 9, 2023 is appropriate.

A hearing was held on July 8, 2025 to consider the worker's appeal.

Issue

1. Whether or not the vocational rehabilitation plan associated with the National Occupation Classification (NOC) 4412 – Home support workers, housekeepers and related occupations is appropriate; and 

2. Whether or not the implementation of the deemed earning capacity effective January 9, 2023 is appropriate.

Decision

1. The vocational rehabilitation plan associated with National Occupation Classification (NOC) 4421 – Home support workers, housekeepers and related occupations is appropriate; and 

2. The implementation of the deemed earning capacity effective January 9, 2023 is appropriate.

Background

The worker has an accepted WCB claim for a psychological injury, later diagnosed as Post-Traumatic Stress Disorder (PTSD), due to the cumulative effects of traumatic incidents they witnessed while at work. The worker stopped work as of April 1, 2014, with the WCB commencing payment of various benefits on April 2, 2014. The worker attended for treatment with their physician and a psychologist, with the WCB’s psychological advisor opining on May 18, 2017, “…the diagnosis of Post-Traumatic Stress Disorder does appear to be materially associated to [the worker’s] exposure to traumatic work events.”

At the request of the WCB, the worker attended for a call-in examination with a WCB psychiatric consultant on May 15, 2018. The consultant confirmed the worker's diagnosis of PTSD and noted the worker had non-compensable medical issues that were impacting their recovery but also found the worker's treatment with their psychologist had resulted in a significant decrease in the worker’s mood symptoms and the worker’s use of appropriate coping strategies to deal with their anxiety. Ongoing exposure therapy was noted to be appropriate as well. With respect to the worker being totally disabled, the WCB psychiatric consultant noted the medical evidence indicated the worker had possible cognitive dysfunction due to a non-compensable injury which was likely to leave the worker totally disabled, however, further medical information would be needed to confirm. The consultant went on to provide the worker's treating psychologist had found the worker was "…able to begin some work hardening in the form of volunteering and begin either a GRTW [graduated return to work] program to an alternate occupation or retraining" and noted this recommendation did not indicate a psychiatric restriction. A restriction related to the worker's PTSD diagnosis was that they not attend scenes of traumatic injuries. The employer was provided with the worker's permanent restriction not to attend scenes of traumatic injuries on September 5, 2018.

A December 13, 2018 progress report from the treating psychologist noted the worker's continued improvement and a recommendation from the psychologist that the worker not return to their pre-accident occupation, noting exposure to a traumatic situation may trigger a relapse in the worker's symptoms. In addition, the treating psychologist recommended ongoing monthly treatment to help the worker in a return to work program.

In April 2019, discussions took place between the WCB, the employer, the worker and the worker's union regarding the worker's restrictions and the employer's ability to accommodate the worker within those restrictions. It was agreed by the WCB and the employer, the worker would not be able to return to their pre-accident occupation due to their permanent restrictions. The employer provided the WCB with job descriptions for possible accommodated positions for the worker on July 9, 2019 and the WCB referred the worker's file to a WCB vocational rehabilitation specialist for an assessment. The assessment took place on November 14, 2019 at which time it was determined further academic testing/interest and aptitude testing would be conducted. On February 28, 2020, the WCB advised the employer the potential accommodated positions they could offer the worker were not appropriate and were outside the worker's restrictions and the worker was referred for vocational rehabilitation services.

The WCB and the worker engaged in discussions about vocational rehabilitation services in May 2020, noting that due to the COVID-19 pandemic, the worker would not be required to attend for educational upgrading as most schools were closed at that time. Further discussions took place on June 18, 2020, July 21, 2020 and September 10, 2020 noting the worker was gathering further information on possible retraining.

A September 8, 2020 progress report from the worker's treating psychologist was received by the WCB, which noted a deterioration in the worker's mental health since discussions with the WCB related to vocational rehabilitation had taken place. The psychologist indicated that given the length of time the worker had been off work, a very gradual return to work process was recommended, along with supportive treatment, and recommended they be involved with specific plans being developed for the worker.

In a discussion with the worker's spouse on October 5, 2020, the WCB advised the vocational rehabilitation plan would be put on hold due to the worker's increase in symptoms.

A December 13, 2020, report from the worker's treating family physician listed the dates the worker had been treated and noted a decrease in frequency in recent times, which the physician attributed to an improvement in the worker's symptoms. The physician indicated the diagnosis of PTSD remained unchanged but the worker "…seems to have this under much better control than five years ago." The treating physician went on to note their belief the worker should not be off work indefinitely and that the WCB should consider retraining the worker.

On December 22, 2021, the worker attended for a call-in examination with a WCB psychological consultant. After assessing the worker, the consultant opined that the worker should be permanently restricted from attending scenes of traumatic injuries; they would not be able to return to emergency medical services work or work in an acute medical setting; and they should be "…restricted from regular or anticipated exposure to significant medical adversity such as trauma, medical distress, or emergency medical situations in acute care environments, and [the worker] would be restricted from exposure to violence, threats of violence, or significant interpersonal conflict." Temporary restrictions of not working in the morning and working afternoon and/or evening shifts were also recommended. The worker was again referred for vocational rehabilitation services.

A Vocational Rehabilitation Plan with a primary target of NOC 4412 - Home support worker and a secondary target of NOC 6552 - Other Customer and Information Services Representatives was developed for the worker and scheduled to start on May 2, 2022 and end on January 9, 2023.

The WCB vocational rehabilitation specialist spoke with the worker on November 4, 2022 for an update. The worker advised they had obtained part time employment, not within the occupational classifications targeted under their vocational rehabilitation plan, and had started with that employment on September 4, 2022. The worker further advised there was another part-time position they were also considering accepting. The worker advised the WCB they were happy in their new position. The WCB advised the worker that their plan ended as of January 9, 2023, at which time they would be deemed capable of earning the provincial minimum wage. A Vocational Rehabilitation Deem Summary, dated December 5, 2022, was placed to the worker's file. The Summary noted that while the worker had obtained employment on their own, not within the NOC's selected by the WCB, they were considered fully employable within NOC 4412 - Home support worker and deemed capable of earning the minimum wage within that NOC effective January 9, 2023.

When speaking with the worker on December 7, 2022, the WCB reminded the worker their wage loss benefits would be reduced based on the minimum wage for NOC 4412 on January 9, 2023 and offered the worker further employment assistance. The worker advised the WCB they were happy in their current position and did not want to apply for other positions at this time.

In a discussion with the worker's spouse on December 19, 2022, the WCB was advised the worker's mental health had declined after speaking with the WCB on December 7, 2022 and being advised their wage loss benefits would be reduced January 9, 2023. The worker's spouse requested consideration be given to extending the worker's vocational rehabilitation plan until after the worker had a chance to speak with their treating psychologist in early January 2023.

On January 20, 2023, the WCB received a report from the worker’s treating psychologist indicating the worker had presented at an appointment on January 10, 2023 with a “…deteriorated state of mental health..." which the worker related to their dealings with the WCB on their vocational rehabilitation plan. The psychologist recommended the WCB re-assess the worker’s plan and that additional accommodations with respect to work frequency and duration be considered.

On April 25, 2023, the WCB spoke with the worker and their spouse. The worker’s spouse noted their belief the vocational rehabilitation plan was put in place by the WCB to see how the worker would respond to returning to work. The WCB advised the worker and their spouse that the intent of a vocational rehabilitation plan was to get a worker back to work in a full-time position, with the worker’s spouse responding that the worker was not capable of working full-time due to sleep issues and anxiety. The WCB advised the worker and their spouse that the vocational rehabilitation plan had ended and the worker’s wage loss benefits were reduced back on their deemed earning capacity within NOC 4421, being minimum wage.

The worker requested reconsideration of the WCB’s decisions to Review Office on November 4, 2023. The submission noted the worker’s struggles with their ongoing PTSD symptoms and their return to work. In addition, it was noted the worker had difficulties that they discussed with their WCB vocational rehabilitation specialist and felt those difficulties were not dealt with properly, as indicated by the medical information on their file.

Review Office determined on December 4, 2023, the worker’s vocational rehabilitation plan with the National Occupation Classification (NOC) 4412 – Home support workers, housekeepers and related occupations was appropriate and the implementation of a deemed earning capacity effective January 9, 2023 was correct. Review Office found the evidence on file supported a finding that the worker was provided with suitable vocational rehabilitation assistance, which would have resulted in the worker gaining full time employment within NOC 4412 had the worker so chosen. With respect to the worker’s deemed earning capacity, Review Office noted the evidence did not support the worker was not capable of earning the starting wage within NOC 4412 and as such, it was appropriate to implement the deem as of January 9, 2023.

The worker’s representative filed an appeal with the Appeal Commission on March 19, 2025 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act, regulations under the Act and the policies established by the WCB’s Board of Directors.

A worker is entitled to benefits under Section 4(1) of the Act where it is established that the worker was injured as a result of an accident at work. Under Section 37 of the Act, compensation is payable where the WCB determines that a worker has sustained a loss of earning capacity, an impairment, or requires medical aid as a result of an accident.

WCB Policy 43.00, Vocational Rehabilitation, provides, in part:

Section I, Goals and Objectives:

1. The goal of vocational rehabilitation is to help the worker to achieve a return to sustainable employment in an occupation which reasonably takes into consideration the worker’s post-injury physical capacity, skills, aptitudes and, where possible, interests.

2. The WBC will help the worker as much as possible to be as employable as she or he was before the injury or illness. Once this is done and when necessary, the WCB will provide reasonable assistance to the worker so that she or he actually returns to work. However, services may not always continue until the worker actually returns to work. …

Section V, Individualized Written Rehabilitation Plan (IWRP):

… 

3. When developing the IWRP, the worker, the worker’s representative, advisor or union representative, the WCB and the employer (when involved) may pursue the established hierarchy of objectives. The WCB will document the outcome(s) of this joint process. Ideally, the worker’s healthcare practitioner will also be involved in this process. The IWRP will: 

… 

b) Describe the occupation or occupational group in which the worker can competitively pursue employment upon achievement of the vocational rehabilitation goal. This will be based on recognized methods of job classification. Where applicable, the description will include any community-specific features of the occupation as determined through job analysis. 

…

4. The WCB will develop the plan after adequate assessment. This assessment is meant to identify the skills possessed by the worker and skills to be acquired by the worker. Further, the plan will establish the worker’s post-plan earning capacity through analysis of the worker’s skills in comparison to the labour market. 

5. The WCB will reasonably ensure that the plan is based on a realistic goal. A realistic goal is one which is within the worker’s physical, intellectual, vocational, and emotional capacities. In helping a worker establish a goal, the WCB will apply knowledge of the worker’s vocational profile, medical aspects of the worker’s condition, the worker’s interaction with the environment and the effort and persistence the worker demonstrates in the face of obstacles.

WCB Policy 44.10.30.60, Consequences of a Worker’s Failure to Mitigate, provides, in part:

1. If the WCB determines that the worker has not complied with section 22 of the Act and the requirements of this policy, it may reduce or suspend the worker's compensation. Before taking this step, the WCB will consider whether the worker has a reasonable explanation for non-compliance. If the WCB considers the worker's explanation for non-compliance to be reasonable, it will not suspend or reduce the worker's compensation.

Generally speaking, the WCB will deem an earning capacity in one of two situations: in the context of vocational rehabilitation or in the context of a recurrence following a voluntary reduction in earnings unrelated to the compensable injury.

WCB Policy 44.80.30.20, Post-Accident Earnings - Deemed Earning Capacity, provides, in part:

I. Vocational Rehabilitation: 

…

4. Deemed Earning Capacity Following Completion of a Plan: 

… 

(d) Deemed earning capacity will be based on the established actual earnings for a given occupation. This amount will be presumed to be the minimum of the range for an occupation as established at the time of the Individualized Written Rehabilitation Plan and as confirmed after completion of the Plan.

Worker’s Position

The worker was represented by a worker advisor at the hearing. The worker and their partner provided testimony by way of responses to questions posed by the advisor and members of the panel.

The worker testified that they continue to suffer the effects of PTSD, including sleep disturbances and panic attacks which are triggered by environmental exposures. The worker gave evidence at the hearing that they had initially been supportive of the VR plan but had come to have reservations by the time the plan was implemented due to their continued symptoms of PTSD and their resulting need for flexibility in their hours of work.

The worker’s position was that they were not able to work on a full-time basis as contemplated by the VR plan, and that the recommendation of the worker’s treating psychologist for a graduated return to work had not been followed by WCB. The worker, their partner and their representative also expressed concern at the hearing that the worker would be exposed to medical emergencies and other triggers in relation to their PTSD if they worked in home care settings, particularly since the home care settings would be located in the community in which the worker’s PTSD had developed.

The representative argued that the worker’s PTSD was not adequately controlled when the VR plan was established. They noted that no neurological testing had been conducted on the worker despite the suggestion of the WCB psychiatric consultant in their report dated May 15, 2018.

They argued further that no review of the worker’s medications had taken place prior to the implementation of the VR plan, despite the recommendation of the WCB consulting psychologist on three separate dates (February 2, 2020, October 18, 2020, May 9, 2021) and the report of the worker’s treating psychologist dated April 23, 2021 indicating that the worker’s medications and sleep schedule should be considered in any return to work plan.

As a result of these concerns, the representative submitted that the worker’s VR plan was not in compliance with the requirements of WCB Policy 43, section V, in that:

• it did not include community-specific features of the occupation as determined through job analysis (point 3(b)) 

• it was not completed “after adequate assessment” (point 4); and 

• it was not based on realistic goals (point 5).

Employer’s Position

The employer did not participate in the hearing.

Analysis

The first question before the panel is whether or not the vocational rehabilitation (VR) plan associated with the National Occupation Classification (NOC) 4412 – Home support workers, housekeepers and related occupations is appropriate. In order for the worker’s appeal to succeed, the panel must find, on a balance of probabilities that WCB failed to establish the worker was capable of working within NOC 4412.

With respect to the second question, whether the implementation of the deemed earning capacity effective January 9, 2023 is appropriate, the panel must find that the worker was not capable of earning the post-accident deemed earning capacity as of January 9, 2023 for the worker’s appeal to succeed.

For the reasons that follow, the panel was not able to make either finding.

The panel reviewed the VR plan prepared by WCB, which was created after completion of a vocational rehabilitation assessment, an earning capacity assessment, and an academic assessment for the worker.

The VR plan properly identified the duties of home support workers as set out in NOC 4412 as follows:

Home support workers provide personal care and companionship for seniors, persons with disabilities and convalescent clients. Care is provided within the client’s residence, in which the home support worker may also reside. They are employed by home care and support agencies, private households, or they may be self-employed. Housekeepers perform housekeeping and other home management duties in private households and other non-institutional, residential settings.

The VR plan specifically considered the previous training and qualifications of the worker in relation to NOC 4412, including transferable skills, and the restrictions put in place for the worker, which were that the worker would be:

i) permanently restricted from attending scenes of traumatic injuries, and would not be able to return to their pre-accident employment or work in acute medical settings;

ii) restricted from regular or anticipated exposure to significant medical adversity such as trauma, medical distress, or emergency medical situations in acute care environments, and would be restricted from exposure to violence, threats of violence, or significant interpersonal conflict;

iii) temporarily restricted from working in the mornings, and working afternoons and/or evening shifts would be most suitable in the meantime.

The detailed VR plan described the labour market within the worker’s region and the duties associated with NOC 4412. The VR plan concluded that the worker was able to perform the duties of a home support worker within their restrictions and that the labour market in the worker’s region was valid. The worker already had the required training for NOC 4412 and the medical evidence on file indicated that the worker’s symptoms had been stable for the last six months as of their treating psychologist’s report dated April 23, 2021. The treating psychologist was supportive of a return to work on a gradual basis.

The panel finds that after appropriate assessment, the VR plan set realistic goals for the worker’s return to employment within NOC 4412, in all of the circumstances.

The worker opted not to pursue employment within NOC 4412, choosing instead to take various positions which they said were casual in nature and did not require full-time hours or a specific time commitment from the worker. The worker was notified by the WCB that the positions the worker chose to accept did not fit within their designated NOC.

Of note, there was no medical opinion or restriction on file dated prior to January 9, 2023 which indicated the worker was unable to work on a full-time basis. The recommendation of the treating psychologist that the worker’s return to work occur gradually, over a long period of time, was considered and addressed by the VR plan in its determination that the worker would be allowed 36 weeks to complete the VR program before the deemed amount of earnings would be implemented. It was explained to the worker during the VR process on several occasions that the worker could increase their work hours to full-time over the allowed 36 weeks, essentially mirroring the type of formal gradual return to work plan that is sometimes offered to workers returning to work with their pre-accident employer.

There is no indication on the worker’s file that they explored whether there were employment opportunities within NOC 4112 that were offered on the casual or flexible basis that the worker preferred, although it is noted that home support workers are often offered afternoon or evening shifts, and shifts based on individual client needs.

With respect to the worker’s stated concern that employment as a home support worker within their community might trigger the symptoms of their PTSD, the panel notes that, unfortunately, the same could be true of most employment the worker might pursue within their community. The panel notes that the restrictions for the worker do not include avoidance of incidental exposure to environmental triggers.

With respect to the worker’s stated concern that a review of the worker’s medications ought to have been conducted prior to the implementation of the VR plan, the panel notes that the issue of medication review was discussed by the WCB psychological consultant in the report issued after they spoke with the worker on December 22, 2021, and with the worker’s treating physician and treating psychologist on December 23, 2021.

The WCB psychological consultant, aware of the medications then prescribed to the worker, concluded that the worker was able to return to work at that time, while temporarily restricted from working mornings “pending a psychiatric assessment on whether there are alternative medications that could treat [the worker’s] significant sleep onset problems”. The panel accepts the opinion of the WCB psychological consultant that the worker was able to return to work pending the medication review.

On the issue of neurological testing, the panel notes that the suggestion for same, made by the WCB psychiatric consultant on May 15, 2018, was related to non-compensable conditions. The worker was judged capable of a return to work by their treating health care professionals and by the WCB psychological consultant, which suggests they did not view neurological testing as necessary in the context of the VR plan.

With respect to the worker’s stated concern of exposure to medical emergencies or trauma while employed within NOC 4412, the panel notes that the VR plan identified a variety of roles for home support workers with far-ranging responsibilities, including situations which require only minor, or routine, non-emergency health care support, or even no health care support.

The panel notes that the worker is not restricted from providing medical assistance to clients. The worker’s treating psychologist indicated in their report dated April 23, 2021, that they “see no reason to restrict [the worker] from medical environments where [the worker] might practice non-emergency paramedicine, or similar medical involvement.” Even so, the worker opted not to explore any positions in a home care support role, regardless of the level, if any, of medical care required. 

For the reasons above the panel concludes, on the basis of the evidence before us and on the standard of probabilities, that the vocational rehabilitation plan within NOC 4412 is appropriate. The panel finds that the VR plan is well suited to the worker based on the worker’s previous training, work history and stated desire to continue working with patients. The worker’s appeal is therefore not granted on the first issue. 

The second question before the panel is whether or not the implementation of the deemed earning capacity effective January 9, 2023 is appropriate.

Having found that the VR plan established by the WCB was appropriate, the panel is also able to find that the implementation of the deemed earning capacity as of January 9, 2023 was appropriate. The worker was given sufficient time in which to reach the deemed income established by the VR plan, and was offered support from WCB in the form of job search assistance, if the worker wished, as well as psychological treatment. The worker has not provided a reasonable explanation for declining to pursue employment within NOC 4412. The worker’s appeal is therefore not granted on the second issue. 

The panel is sympathetic to the worker’s situation and recognizes that PTSD is a chronic condition. If the worker is of the view that their circumstances have changed since the implementation of the VR plan, or that further support is required, the worker may wish to make inquiries regarding the options available to them through WCB.

Panel Members

M. Murray, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 14th day of August, 2025