The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appealed the Workers Compensation Board ("WCB") decisions that:

1. They are not entitled to full wage loss benefits from August 7, 2014 to September 5, 2014; 

2. It is appropriate to suspend the worker’s wage loss benefit entitlement after September 5, 2014; and 

3. It is appropriate to implement a post-accident deemed earning capacity equal to provincial minimum wage for a 40-hour week effective July 15, 2018.

A hearing to consider the worker's appeal took place on September 16, 2025.

Issue

1. Is the worker entitled to full wage loss benefits from August 7, 2014 to September 5, 2014? 

2. Is it appropriate to suspend the worker’s wage loss benefit entitlement after September 5, 2014? 

3. Is it appropriate to implement a post-accident deemed earning capacity equal to provincial minimum wage for a 40-hour week effective July 15, 2018?

Decision

1. The worker is entitled to full wage loss benefits from August 7, 2014 to September 5, 2014. 

2. It is not appropriate to suspend the worker’s wage loss benefit entitlement after September 5, 2014. 

3. It is not appropriate to implement a post-accident deemed earning capacity equal to provincial minimum wage for a 40-hour week effective July 15, 2018.

Background

The WCB accepted the worker's claim they injured their low back and right shoulder at work on July 27, 2013 when they slipped and fell backwards while working. On August 1, 2013, the worker was treated and diagnosed with soft tissue contusion with tendinitis in the right shoulder and soft tissue contusion to the lumbar area. On assessing the worker on August 2, 2013, the physiotherapist diagnosed right rotator cuff tendonitis/contusion and lumbar strain/sprain. At follow-up, the treating family physician questioned a right rotator cuff tear and referred the worker for an MRI study. The MRI of October 15, 2013 indicated a full-thickness, full-width tearing of the supraspinatus tendon and partial thickness tearing of the subscapularis tendon as well as moderate acromioclavicular joint osteoarthritis. At follow-up on October 22, 2013, the family physician referred the worker to an orthopedic surgeon and reported the worker could return to work at sedentary duties.

An orthopedic surgeon assessed the worker on February 19, 2014 and recommended surgery, which took place on March 14, 2014. After surgery, the worker received physiotherapy beginning on April 23, 2014. When the worker advised the WCB that their physiotherapy was only related to their shoulder and they continued to experience low back difficulties, the WCB confirmed that although the claim was also accepted in relation to a low back strain, this would be resolved nearly 9 months after the accident.

On July 31, 2014, the worker attended a call-in examination with a WCB medical advisor. The medical advisor noted the initial diagnosis of lumbar soft tissue contusion by the treating family physician, and of lumbar sprain/strain by the treating physiotherapist and outlined that the natural history of recovery for a lumbar contusion was between 2-8 weeks, and recovery from a lumbar sprain/strain was between 3-8 weeks. As the accident was more than one year earlier, the medical advisor concluded the worker's current low back symptoms were not related to the workplace accident. The medical advisor also stated the worker was not totally disabled and recommended ongoing physiotherapy and workplace restrictions of no work over shoulder height and no lifting greater than 15 pounds with the right upper limb.

When the WCB advised the employer of the restrictions on August 6, 2014, the employer confirmed they had modified duties available, and they would ask the worker to come in the next day to "vet" those duties. The worker advised the WCB on August 7, 2014 that they would not return to work at the offered modified duties as they continued to experience back and shoulder difficulties and were still seeking medical treatment for those injuries. The WCB advised the worker that the medical information supported their return to work on light duties, which the employer had available, and that their ongoing back difficulties were not related to the workplace accident. The WCB also advised the worker that because they decided not to return to work, their wage loss benefits may end, pending receipt of further medical information from their treating healthcare providers. As the worker did not return to work, the WCB reduced the worker's wage loss benefits based on the accommodated position offered by the employer as of August 7, 2014.

The WCB wrote to the worker on August 26, 2014 confirming it decided the worker's current back difficulties were not related to the workplace accident. The WCB suspended the worker's wage loss benefits on October 1, 2014, effective September 5, 2014. The employer advised the WCB on October 9, 2014 that the worker agreed to return to alternate duties on October 21, 2014. On October 22, 2014, the worker advised the WCB they would not continue with the alternate duties due to pain in their back and shoulder. The employer confirmed to the WCB on October 23, 2014 that there were no other alternate duties available for the worker.

The treating orthopedic surgeon saw the worker on October 27, 2014 and noted the alternate duties offered by the employer were within the scope of the worker’s current restrictions.

The WCB wrote to the worker on November 17, 2014 outlining the decision to suspend wage loss benefits, as the medical evidence indicated the worker could return to work on light duties, but after the attempted to return to work on October 21, 2014, the worker discontinued working and had not returned since that time and as such, their benefits remained suspended.

On January 14, 2015, the worker’s representative requested Review Office reconsider the WCB’s decision. Review Office determined on February 24, 2015 that the worker was entitled to partial wage loss benefits from August 7, 2014 to September 5, 2014 and it was appropriate to suspend the worker’s benefits after September 5, 2014 as the medical evidence indicated the worker was capable of a return to work on modified duties by August 7, 2014. As the worker refused to return to work, the WCB’s decision to reduce the worker’s wage loss benefits based on the wages of the modified duties was appropriate. Review Office also found that the WCB correctly suspended the worker’s wage loss benefits after September 5, 2014 as the worker refused to participate in the reasonable modified duties offered by the employer.

On March 25, 2015, the worker attended a functional capacity evaluation at the request of the WCB, but did not attempt the activities of the evaluation due to symptoms in their shoulder. A WCB medical advisor reviewed the worker's file on April 24, 2015 and concluded the worker was likely at maximum medical improvement and that their restrictions were permanent. When the WCB advised the employer of the permanent restrictions, the employer confirmed on May 26, 2015 that they could not accommodate the worker. The WCB reinstated the worker’s wage loss benefits as of May 20, 2015 and referred the worker for vocational rehabilitation ("VR") services.

The WCB VR specialist assessed the worker on August 18, 2015, noting the worker's limited English language skills and referred the worker for benchmark testing to determine their level of functioning. After the benchmark testing, the VR specialist recommended English language upgrading for the worker. The WCB received regular updates on the worker’s language training, included a June 6, 2016 report from the VR specialist indicating the worker’s upgrading had not reached the standard of English language ability required to meet employability standards. The VR specialist also noted the worker was “…well below educational standards…for basic entry level occupations” and recommended further English training, along with educational training.

The WCB prepared a VR Plan for National Occupation Classification ("NOC") 6651- Security Guard for the worker, with a start date of October 30, 2016 and an end date of July 14, 2018, allowing for 33 weeks of job search time. When the VR specialist met with the worker and members of their family on May 24, 2017, to discuss the plan, the worker and their family members noted their belief the worker could not work in that occupation, and the worker stated they felt they were totally disabled. The VR specialist advised the worker and their family that positions within that occupation included positions that fit within the worker’s permanent restrictions and the worker advised they would continue their English and academic upgrading.

On September 12, 2017, the WCB advised the worker by letter of a one-week security training program, following which the 33-week job search period would begin. The WCB also advised the worker that their wage loss benefits would be reduced to reflect the earning capacity within NOC 6651 as of July 15, 2018. On July 10, 2018, the WCB advised the worker that as of July 14, 2018, they were deemed capable of earning $500 per week under NOC 6651 and their wage loss benefits would be reduced based on that earning capacity.

On October 29, 2018, the worker’s representative requested Review Office reconsider the WCB’s decision. Review Office determined on December 20, 2018 that the VR plan under NOC 6651 – Security Guards and related services was not appropriate but that the worker should be deemed to have an earning capacity equivalent to provincial minimum wage for a 40-hour work week effective July 15, 2018

The worker’s representative filed an appeal with the Appeal Commission on March 25, 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. The applicable provisions of the Act and policies are those in effect as of the date of accident.

Section 4(1) of the Act provides for compensation to be paid by the WCB where a worker has sustained personal injury by accident arising out of and in the course of employment. Under s 4(2) of the Act, a worker injured in an accident is entitled to wage loss benefits for the loss of earning capacity that results from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens. If the WCB determines that a worker has a loss of earning capacity, an impairment or requires medical aid because of an accident, compensation is payable under s 37 of the Act. Section 39(2) of the Act sets out that wage loss benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years.

Section 22 of the Act requires workers to take reasonable steps to reduce or eliminate impairment or loss of earnings resulting from an injury, to seek out, co-operate in and receive medical aid that will promote their recovery, and to co-operate with the WCB in developing programs for return to work, rehabilitation, disability management or other programs that promote their recovery. If a worker fails to comply with s 22, the WCB may reduce or suspend their compensation.

The Act provides in s 27(20) that the WCB may provide academic or vocational training, or rehabilitative or other assistance to a worker when the worker could experience a long-term loss of earning capacity or require assistance to reduce or remove the effect of a handicap resulting from the injury as a result of a workplace accident.

The WCB established Policy 44.10.30.60, Co-operation and Mitigation in Recovery (the "Mitigation Policy"). The Mitigation Policy sets out the expectations for workers in terms of their responsibilities under s 22 of the Act, which include the following:

a) Reasonably participating in any return to work or disability management program the WCB considers necessary to promote the worker’s recovery; 

b) Reasonably co-operating with the WCB in developing and carrying out a rehabilitation program designed to promote the worker’s return to work; 

c) Demonstrating to the WCB an ongoing reasonable effort towards the successful completion of a rehabilitation program; 

d) Reasonably avoiding any activity which would result in a slower recovery from the worker’s injuries or negatively impact the worker’s medical ability to return to work; 

e) Reasonably participating in all programs that the WCB believes will encourage a timely and sustainable return to health and work

The Mitigation Policy also outlines the responsibilities of the WCB in relation to the obligation of a worker to mitigate under s 22, including the following:

1. The WCB must advise an injured worker of his or her responsibilities under s 22 of the Act and under the Mitigation Policy and explain what those responsibilities mean in the individual circumstances of the worker's claim. 

2. The WCB must assist the injured worker in mitigating the effects of a workplace injury by helping to identify and address impediments to the worker's safe return to health and work. 

3. The WCB must advise the worker of the possible consequences of a failure to comply with s 22 and their responsibilities under the Mitigation Policy including reduction or suspension of compensation.

The WCB also established Policy 43.20.25, I (the “Return to Work Policy”) to outline the WCB’s approach to return to work of injured workers through modified or alternate duties with the accident employer. The Return to Work Policy encourages employers to provide modified or alternate work to injured workers as part of a process of safely returning those workers to work and helping them to regain their earning capacity, and provides that if a worker refuses to participate in suitable work, wage loss benefits will be reduced or eliminated by the amount the worker would have earned in the suitable work. This policy sets out that:

Suitable work is that which the worker is medically able to do, does not aggravate or enhance the injury, and will provide benefits to both the worker and the employer. Suitable work is permanent or transitional employment that takes into account the worker’s pre-accident employment, aptitudes, skills, and what work is available. It also considers any safety concerns for the worker or co-workers. To determine if the worker is medically able to perform suitable work, the WCB will compare the worker’s compensable medical restrictions and capabilities to the demands of the work.

The WCB also established Policy 44.80.30.20, Post-Accident Earnings - Deemed Earning Capacity (the “Deeming Policy”) which outlines how the WCB determines a worker can earn more than they are earning and deems an amount that the worker could earn which is then included in calculating their post-accident earning capacity as if it were earned. The Deeming Policy outlines what the WCB must demonstrate to deem a worker capable of earning income, including, as noted in paragraph 3 of the Policy, the following:

a) The WCB must demonstrate (through adequate vocational assessment, plan development, and documentation) that the worker is capable of competitively finding, competing for, obtaining, and keeping employment in the occupation or group of occupations on which the earning capacity is based. 

b) The WCB must demonstrate that the worker has the physical capacity, education, skills, aptitudes, interests, and personal qualities needed to obtain and keep employment in the occupation or group of occupations in the labour market.

c) The WCB must demonstrate that work exists for the occupation or group of occupations on which the earning capacity is to be based. 

d) The WCB will use the Individualized Written Rehabilitation Plan (or similar format) as described in WCB policy 43.00, Vocational Rehabilitation, as the basis for collecting and weighing information about the worker's earning capacity.

The Deeming Policy also outlines expectations of a worker and sets out, in paragraph 8 of the Policy, that:

a) Deemed earning capacity will be used under the WCB's broader policy on mitigation…when:

i. The worker voluntarily leaves the workforce by expressing that he or she is not interested in looking for any work. In this case, the deemed earning capacity will be the worker's earning capacity at the time of leaving, unless it is demonstrated that the worker is capable of, through rehabilitation, a higher earning capacity. The WCB must be prepared to undertake this rehabilitation (i.e., must offer it to the worker). 

ii. The worker refuses to cooperate in or complete a program of vocational rehabilitation. In this case, the deemed earning capacity will be the earning capacity expected on completion of the vocational rehabilitation plan. 

iii. The worker refuses to participate or cooperate to a degree that it is impossible to undertake adequate vocational assessment/plan development and reasonably/accurately determine an anticipated earning capacity. In this case, it will be presumed that the worker has no loss of earning capacity until the worker demonstrates a willingness to cooperate in the development of a plan.

Worker's Position

The worker appeared in the hearing represented by a worker advisor and supported by an interpreter as well as members of their family.

The worker advisor outlined the worker's position that in determining that the worker was capable of a return to the specific modified duties offered by the employer to the worker in August and October 2014, the WCB failed to consider the worker as a whole person, including not only their compensable injury and related restrictions, but also their non-compensable physical limitations and their skills and abilities. Further, the WCB failed to provide appropriate notice to the worker of the discretionary changes to their benefit entitlements and failed to inquire as to the details of the proposed modified duties to ensure these were appropriate to the worker's abilities. In addition, the WCB did not adequately consider the medical evidence in determining that the worker could return to work at the offered modified duties. For these reasons, the worker should be entitled to full wage loss benefits from August 6 to September 5, 2014 and beyond September 5, 2014.

In respect of the WCB decision to deem the worker capable of earning minimum wage for 40-hours weekly as of July 15, 2018, the worker advisor outlined the worker's position that following the Review Office decision that the VR plan for NOC 6651 was not appropriate, the WCB should have extended the worker's job search period beyond July 15, 2018 and provided further wage loss benefits through that period. In other words, the worker's position is that it was not appropriate to deem the worker capable of earning minimum wage for 40-hours weekly as of that date.

Employer's Position

The employer did not participate in the appeal.

Analysis

Each of the issues in this appeal relates to the worker's readiness to return to work, initially in 2014 at modified duties with the accident employer, and then again, in 2018, upon completion of the VR plan established by the WCB and which Review Office later overturned, and to the means by which the WCB determined if the worker was eligible for wage loss benefits and their earning capacity. The panel considered each of the questions on appeal in turn, as detailed below.

Entitlement to full wage loss benefits from August 7, 2014 to September 5, 2014 

For the worker's appeal to succeed in relation to their entitlement to full wage loss benefits from August 7, 2014 to September 5, 2014, the panel would have to determine that the worker mitigated the extent of their loss of earning capacity or that the WCB failed to comply with the Act and applicable policies in reducing the worker's wage loss benefits. As detailed below, the panel was able to make such findings and therefore the worker's appeal on this question is granted.

The panel noted the claim file outlines that the WCB decision to reduce the worker's wage loss benefits to partial wage loss as of August 7, 2014 was based on the employer offering alternate duties, which the WCB determined were suitable, and the worker refusing to undertake those duties. As set out in s 22 of the Act, a worker has an obligation to participate in and cooperate with a return-to-work program and the WCB may reduce or suspend a worker's benefits if they fail to do so. The panel therefore reviewed the evidence to consider whether it was appropriate to reduce the worker's benefits based on their refusal of the offered alternate duties. In considering this question the panel reviewed the provisions of both the Mitigation Policy and the Return to Work Policy.

The panel noted the evidence that the employer proposed to the WCB on August 6, 2014, that the worker should come in the next day to be "vetted" for specific alternate duties that involved scanning and electronically filing various documents with no margin of error permitted. While these duties appear to fall within the medical restrictions established by the WCB following the call in examination of July 31, 2014, the panel noted the duties described are unlikely to be appropriate to this worker considering their pre-accident employment, aptitudes and skills. As noted in the August 2015 assessment of the worker for the purposes of developing a VR plan, this worker had no related prior work experience, "poor English language skills", minimal educational background and "no tangible transferable skills or abilities that could lead to any form of employment or employability." The assessor at that time concluded that "Based on my assessment of the worker's transferable skills, education and physical abilities, it is evident [the worker] is currently suffering a loss of earning capacity due to [the] compensable injury." While it is also true that the worker did not agree to even attempt those duties, the panel finds that the offered duties were plainly not within the worker's employment capabilities. Further, we noted that while the employer proposed only that they would see if the worker could do this work, and indicated this was the only option available, there is no evidence that the WCB made any additional inquiries of the employer as to the technical job requirements or the appropriateness of those duties for this worker. We do not find that the evidence indicates that the offered duties were suitable to this worker and find there were no other modified or alternate duties proposed by the employer or inquiries made by the WCB as to other options when the worker refused this offer.

Considering the medical reporting and opinions, the panel finds that the WCB's determination that the worker was physically capable of a return to work as of August 7, 2014 was premature. The panel noted that the July 7, 2014 assessment report from the treating surgeon contains no comment on the worker's ability to return to work but recommends continued physiotherapy with a focus on increasing the worker's range of motion. The July 29, 2014 physiotherapy report outlines that the worker's recovery is not satisfactory, noting onset of lower back pain and an upcoming CT scan as complications, and indicates the worker remain disabled from work. The July 31. 2014 call-in examination findings also note a pending lumbar spine CT but concluded that the worker's low back complaints were unlikely to be related to the initial low back contusion or strain injury, and that the worker was not "totally disabled". The WCB medical advisor outlined restrictions that were appropriate to the compensable shoulder injury and noted that lumbar spine restrictions may also be required, although not related to the accident. A narrative report from the treating physiotherapist of August 13, 2014 confirms the worker's slow progress in relation to their shoulder injury with only minimal improvements in their right shoulder range of motion, and the physiotherapist comments that "As far as I am aware, there is no return to work plan in place yet". We find that this indicates the WCB did not consult with the treating physiotherapist in determining the worker's restrictions or that they were capable of a return to work. The panel also considered the reports from the treating family physician who saw the worker on August 11, 2014 and advised the worker not to participate in light duties, noting the worker's ongoing low back pain and a potential relationship of that concern to the workplace accident. There is also no evidence that the WCB sought any opinion from the treating physician in relation to the worker's work readiness. At that time, the WCB did not have any information as to the recent lumbar spine CT, and those findings were not reviewed by a WCB medical advisor until October 2, 2014, at which time they concluded that the worker's low back symptoms may require accommodation or preventive restrictions. The panel is satisfied that regardless of whether the WCB determined that the worker's ongoing low back concerns were compensable, as of early August 2014, the worker's continuing low back complaints were an impediment to their safe return to health and work. This is supported by the medical reporting and the opinions of the WCB medical advisor. While the WCB was aware of these concerns, the panel is not satisfied that the WCB met its obligation under the Mitigation Policy to assist the injured worker in mitigating the effects of a workplace injury by helping to identify and address impediments to the worker's safe return to health and work.

Further, the panel finds that the WCB did not provide sufficient and timely notice to the worker of the discretionary decision to implement change in benefits as of August 7, 2014. While there was verbal communication, by voicemail and telephone, about the available alternate duties on the afternoon of August 6, 2014, which is documented as including detailed information as to the impact on their benefit entitlement if they did not return to work the next morning, there is ample evidence on file that this worker has limited English language ability and as such we find it was not sufficient to verbally communicate this important information about expectations and mitigation and potential benefit reduction or suspension without ensuring there was translation available. Furthermore, while there was a telephone call about this subject less than 24 hours before the worker was expected to return to work to attempt the alternate duties, the WCB did not communicate the decision to reduce their wage loss benefits to the worker in writing until November 17, 2014. More than 3 months passed before the WCB formally advised the worker that there had been a "decision to pay partial wage loss for four weeks…made in good faith, with the expectation that [the worker] would begin to participate in the alternate duties during that time period." The panel finds that this is inadequate and untimely communication, without due consideration for the communication barriers this worker experienced.

Based on the evidence and on the standard of a balance of probabilities, the panel is satisfied that the modified duties available on August 7, 2014 were not suitable for this worker, taking into consideration their pre-accident employment, aptitudes and skills, and further, were not medically appropriate given the ongoing treatment and investigation into the worker's continuing low back symptoms. As such, we are satisfied that the worker appropriately sought and followed the medical advice of their treatment providers, and appropriately refused to undertake the alternate duties offered as of August 7, 2014 and in doing so, the worker mitigated the effects of their injury as required under the Act. Further, we find that the WCB has not met its obligations to the worker under the Mitigation Policy in relation to this return-to-work effort. For all these reasons, we find the worker is entitled to full wage loss benefits from August 7 to September 5, 2014. The worker's appeal on this question is granted. 

Suspension of the worker’s wage loss benefits after September 5, 2014 

For the worker's appeal to succeed in relation to the WCB's suspension of their wage loss benefits after September 5, 2014, the panel would have to determine that the worker mitigated the effect of their injury on their loss of earning capacity or that the WCB failed to comply with the Act and applicable policies in suspending the worker's wage loss benefits. As detailed below, the panel was able to make such findings and therefore the worker's appeal on this question is granted.

The panel considered whether there was any change in the worker's medical status in September 2014 such as would impact our findings in relation to the worker's readiness to return to work in August 2014. The treating orthopedic surgeon confirmed on September 10, 2014 that the worker could return to modified work with restrictions, but that report does not address any issues related to the worker's lower back complaints. The panel noted the treating family physician provided a medical note on September 19, 2014 removing the worker from work until October 3, 2014, and that the WCB medical advisor, on reviewing the lumbar spine CT scan findings on October 2, 2014 outlined the probable need for accommodation or preventative restrictions in relation to the worker's low back condition. While the panel accepts that the worker was likely capable of some modified duties related to the compensable injury after September 5, 2014, we also accept that the worker's non-compensable low back condition continued to impact their physical capabilities and ability to take on certain kinds of job duties. As such, we find that the worker's low back condition remained an impediment to the worker's successful return to work.

On October 1, 2014, the WCB wrote to the worker advising that their benefits were suspended due to a refusal of alternate duties beginning August 7, 2014. As noted above, the panel finds that this was not sufficient notice of a suspension of benefits effective some four weeks earlier on September 5, 2014, and in fact this letter makes no reference to that date, and again, is provided after the fact rather than in advance of this discretionary decision. In fact, the details and rationale for the WCB's decision to suspend benefits as of September 5, 2014 was not communicated to the worker in writing until November 17, 2014. This is not in keeping with the spirit and requirements of the Mitigation Policy in terms of the WCB's responsibilities to workers. Our comments above in relation to the specific needs of this worker, in terms of communication, are relevant here as well.

Further, the panel noted that the WCB did not advise the worker of any other offers of modified duties appropriate to this worker between August 6, 2014 and October, 2014. In early October 2014, the employer proposed the worker could take on some vehicle inspection work, taking breaks as needed, to accommodate both the worker's shoulder restrictions and their low back complaints. We note that the worker attempted these duties on October 21, 2014, over the course of a half-day, and then advised the employer that the job duties were too physically demanding and requested both reduced hours and an indoor job. The panel accepts that the employer had no other such duties available. In their October 27, 2014 report, the treating orthopedic surgeon confirmed their view that the offered duties were within the worker's physical capabilities but noted "…it might be reasonable …to return to work on gradual hours for the time being and working up to a full day…". The panel noted the WCB did not accept the recommendation for reduced hours, although by this point, the WCB had identified the worker's low back condition as an impediment to the return to work. Having identified that impediment, even though it was not considered a compensable condition, the panel finds that the WCB had an obligation to address it as required under the Mitigation Policy but failed to do so.

Based on the evidence and on the standard of a balance of probabilities, the panel is satisfied that the worker appropriately sought and continued to follow the medical advice of their treatment providers, and further, attempted the alternate duties offered as of October 20, 2014 and in doing so, the worker acted to mitigate the effects of their injury as required under the Act. Further, we find that the WCB did not meet its obligations to the worker under the Mitigation Policy in relation to their return to work after September 5, 2014. Therefore, we find the worker is entitled to wage loss benefits after September 5, 2014 and the appeal on this question is granted.

Implementation of post-accident deemed earning capacity effective July 15, 2018 

For the worker's appeal to succeed in relation to the implementation of a post-accident deemed earning capacity as outlined, effective July 15, 2018, the panel would have to determine that the worker was not capable of earning an amount equivalent to the provincial minimum wage for a 40-hour week as of that date or that the WCB did not appropriately deem the worker able to earn such income at that time. As outlined in the reasons that follow, the panel was able to make such findings and therefore the appeal on this question is granted.

The panel noted that the WCB initially deemed the worker capable of earning an income in relation to NOC 6551 - Security as of July 15, 2018, upon the conclusion of the VR Plan developed for the worker. After Review Office determined that this VR Plan was inappropriate to the worker, it then determined that the worker should instead be deemed capable of earning a minimum wage as of that same date.

The panel is not satisfied that this was appropriate, based upon the provision of the Deeming Policy in relation to the obligations of the WCB. The Deeming Policy outlines that to deem a worker capable of earning income the WCB must demonstrate through adequate vocational assessment, plan development, and documentation that the worker is capable of competitively finding, competing for, obtaining, and keeping employment in the occupation or group of occupations on which the earning capacity is based, that the worker has the physical capacity, education, skills, aptitudes, interests, and personal qualities needed to obtain and keep employment in the occupation or group of occupations in the labour market and that work exists for the occupation or group of occupations on which the earning capacity is to be based. Further, the Deeming Policy requires that the WCB must use the Individualized Written Rehabilitation Plan as the basis for collecting and weighing information about the worker's earning capacity.

Here, the file evidence does not demonstrate that the deeming decision by Review Office complied with these requirements. The panel finds that upon Review Office determining that the VR Plan for NOC 6551 was inappropriate, the worker's claim ought rather to have been returned to Compensation Services for development of a new plan. This finding is supported by the file evidence from the VR specialists who indicated multiple times that worker was functionally unemployable. It is further supported by the absence of any evidence that the worker's language and other capabilities were reassessed upon conclusion of the training provided. We note that the language training reports outline that during the program, the worker's English language skills were insufficient even for most minimum wage employment. We noted there is no medical evidence to confirm the worker's abilities or restrictions as of July 15, 2018, although permanent restrictions were established in April 2015. As such, the panel finds that the WCB failed to comply with its own responsibilities under the Deeming Policy.

Based on the evidence before the panel, and applying the standard of a balance of probabilities, we are satisfied that it was not appropriate to implement a post-accident deemed earning capacity equal to provincial minimum wage for a 40-hour week effective July 15, 2018. The worker's appeal on this question is therefore granted.

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 9th day of October, 2025