The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appealed the Workers Compensation Board ("WCB") decision that the implementation of a post-accident deemed earning capacity for the National Occupational Classification (NOC) 6411 – Sales and Account Representatives – wholesale trade (non-technical), effective August 6, 2022 was appropriate. On October 2, 2025, a videoconference hearing took place to consider the worker's appeal.

Issue

Whether the implementation of a post-accident deemed earning capacity for the National Occupational Classification (NOC) 6411 – Sales and Account Representatives – wholesale trade (non-technical), effective August 6, 2022 was appropriate.

Decision

The implementation of a post-accident deemed earning capacity for the National Occupational Classification (NOC) 6411 – Sales and Account Representatives – wholesale trade (non-technical), effective August 6, 2022 was appropriate.

Background

The WCB accepted the worker's claim for an injury to their right shoulder, neck and upper back that occurred when they fell off a ladder at work on September 24, 2018. After some time away from work following the accident, the worker returned to work on October 9, 2018 with restrictions. Further medical investigations followed and on January 16, 2019, the WCB approved surgical treatment, but the worker decided to rather proceed with more conservative treatment options.

After a call-in examination with a WCB medical advisor on May 30, 2019, the WCB determined the worker did not require further workplace restrictions, and therefore was not entitled to further wage loss benefits after July 26, 2019, as the worker stated they would return to work on July 29, 2019.

The worker requested Review Office reconsider the WCB’s decision. On June 22, 2020, at the request of Review Office, a WCB orthopedic consultant reviewed the worker's file and concluded that based on the worker's decision to pursue non-operative treatment for their rotator cuff injury, permanent restrictions were recommended as follows: no repetitive overhead tasks with the right upper limb; no repetitive vigorous resisted tasks with the right upper limb away from the side of the body; and no lifting, carrying, pushing or pulling more than 50 pounds. On June 23, 2020, Review Office determined the worker was entitled to further benefits and returned the claim to the WCB’s Compensation Services for further adjudication.

On October 16, 2020, the WCB referred the worker to vocational rehabilitation ("VR") services. The WCB VR specialist developed a VR plan under National Occupational Classification ("NOC") 6411 Sales Representative, which included educational upgrading, and a 14-week job search period set to begin in May 2021 and end in August 2022. The plan goal was that the worker would be capable of working within that NOC with an expected earning capacity of minimum wage at that time. The WCB amended the worker's VR plan on April 7, 2022 to fix the end date as August 5, 2022.

On August 4, 2022, a WCB Deem Committee supported a recommendation that the worker was capable of employment within NOC 6411 and earning the starting wage, being minimum wage. The same day, the WCB advised the worker that their wage loss benefits would be reduced based on the minimum wage of NOC 6411.

On August 9, 2022, the worker requested Review Office reconsider the WCB’s decision, noting their disagreement with the VR plan as they did not have experience in sales, making it difficult to gain employment within that field. On August 18, 2022, Review Office determined the implementation of a deemed earning capacity for NOC 6411 – Sales and account representatives – wholesale trade (non-technical) effective August 6, 2022 was appropriate.

The worker appealed to the Appeal Commission on January 9, 2025 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

In determining the worker’s appeal, the panel is bound to apply the provisions of The Workers Compensation Act (the “Act”) and regulations under that Act as well as the policies established by the Workers Compensation Board. The provisions of the Act in force at the time of the accident are applicable.

The Act provides in s 4(1) that when a worker sustains personal injury by accident arising out of and in the course of employment, they are entitled to compensation for their loss of earnings resulting from that accident. Section 37 provides that when a worker is injured as a result of an accident and sustains a loss of earning capacity, an impairment or requires medical aid, compensation is payable to them as medical aid, an impairment award and wage loss benefits.

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 as a result of a workplace accident.

The WCB established Policy 44.80.30.20, Post Accident Earnings - Deemed Earning Capacity (the “Deeming Policy”) which describes how and when the WCB can find that a worker is capable of earning an income greater than they are earning. In certain circumstances, the WCB deems an amount that the worker could earn and includes that amount as if earned when calculating a worker's post-accident earning capacity. The Deeming Policy outlines the requirements for the WCB to deem income, which include:

"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.

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.

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

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 WCB Policy 43.00, Vocational Rehabilitation, (the “VR Policy”) outlines the goals, terms, and conditions of academic, vocational, and rehabilitative assistance available to workers under s 27(20) of the Act. The VR Policy sets out, in part, that:

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 WCB 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. 

3. Vocational rehabilitation strives to return workers to the salary level they were earning before the injury or illness. 

4. To meet these objectives, the following solutions (hierarchy of objectives) will be considered and pursued in the sequence below: 

a. Return to the same work with the same employer. 

b. Return to the same work (modified) with the same employer. 

c. Return to different work with the same employer. 

d. Return to similar work with a different employer. 

e. Return to different work with a different employer. 

f. Retraining and re-education. 

… 

7. Return to work with the pre-injury employer involving the first three of the hierarchy of objectives is principally the responsibility of the Case Manager. When a Case Manager determines that return to work solutions with the pre-injury employer listed in paragraph 4 a, b and c above are not possible, then the worker may be assessed for vocational rehabilitation services by a Vocational Rehabilitation Consultant who will consider the solutions listed in paragraph 4 d, e, and f above.

The VR Policy goes on to describe when a worker is eligible for VR services, what kind of services are available and the requirements for development of an individualized VR plan, intended to help a worker build sufficient vocational potential to eliminate or minimize their loss of earning capacity. Such a VR plan will define overall vocational rehabilitation goals, describe the occupation or NOC group in which the worker can competitively pursue employment on achieving the VR goals, detail the steps to reaching the goal and methods by which the WCB will provide supports. The VR Policy sets out that the plan will be developed after adequate assessment of the worker’s skills and skill gaps and requires that the WCB reasonably ensure that the plan is based on a realistic goal, defined as a goal that is “…within the worker’s physical, intellectual, vocational, and emotional capacities” taking into account the worker’s vocational profile, medical aspects of their condition, the worker’s interaction with the environment and the effort and persistence the worker exhibits in the face of obstacles.

Worker's Position

The worker appeared before the panel on their own behalf and relied upon a written submission provided in advance of the hearing as well as oral submissions made in support of the appeal. The worker's position is that the VR plan for their retraining and re-education into NOC 6411 was never appropriate as it did not align with their interests, skills and experience, did not minimize the extent of their loss of earning capacity, and was not appropriate to their physical restrictions. The worker further submitted that the WCB failed to consider the occupational groups that the worker was interested in pursuing.

The worker's position is that because the VR plan was not appropriate for them given their limitations and strengths, upon conclusion of that plan, they were not capable of earning an income consistent with their pre-accident earning capacity and they have not been successful in employment within NOC 6411.

For these reasons, the worker's position is that implementation of the post-accident deemed earning capacity for the National Occupational Classification (NOC) 6411 – Sales and Account Representatives – wholesale trade (non-technical), effective August 6, 2022 was not appropriate.

Employer's Position

The employer did not participate in the appeal.

Analysis

The question for the panel to determine in this appeal is whether the WCB appropriately implemented a deemed earning capacity for the worker in NOC 6411 effective August 6, 2022. For the worker's appeal to succeed, the panel must find that the WCB did not establish the worker is capable of working in NOC 6411 or that, on conclusion of the plan, the worker was not capable of earning the post-accident deemed earning capacity, or that the WCB did not correctly implement the deemed earning capacity upon conclusion of the plan. As outlined in the reasons that follow, the panel could not make such findings based on the evidence before us, and therefore the worker’s appeal is denied.

While the worker did not appeal the WCB's decision in relation to developing and implementing the VR plan under NOC 6411, they maintain that this plan was not appropriate from the outset. As this question was also considered by Review Office in reaching the decision that gives rise to this appeal, the panel reviewed the provisions of the VR Policy in relation to how such a plan is developed. The VR Policy outlines that in developing a VR plan for a worker, the WCB will define the goals of the vocational rehabilitation program for the worker and describe the occupational group “in which the worker can competitively pursue employment....” The plan is to be developed after “adequate assessment” that identifies not only the worker’s skills but also considers those skills “in comparison to the labour market.” The Policy also requires that the WCB “will reasonably ensure that the plan is based on a realistic goal”, which the Policy defines as a goal “within the worker’s physical, intellectual, vocational, and emotional capacities.”

The panel noted that in the process of developing a VR plan, the worker expressed interest in other occupational categories, which the WCB VR specialist determined would potentially conflict with the worker's permanent restrictions. We find that this was an appropriate consideration and aligns with the VR Policy requirement that an occupational goal be within the worker's physical capacities. We further note that the WCB determined that the physical requirements in NOC 6411 were aligned with the worker's permanent restrictions.

The worker also submitted that they did not have the personal characteristics necessary to succeed in a sales environment. We note however the claim file documents that the WCB VR specialist, in developing this VR plan, gave due consideration to whether the goal of NOC 6411 was realistic in that it was within the worker's physical, intellectual, vocational and emotional capacities as required by the VR Policy. The panel is satisfied that the process of plan development complied with the VR Policy requirements and as such, the plan is appropriate.

In the hearing, the panel noted the worker's primary concern that the minimum earning capacity for NOC 6411 is not as high as their pre-accident earnings. On reviewing the VR plan development documents, including the April 22, 2021 Earning Capacity Assessment, we note that this is correct but that the maximum earnings in this occupation, as indicated in that assessment, exceed the worker's pre-accident earnings. As such, we are satisfied that the WCB considered how to minimize the worker's loss of earning capacity in developing their VR plan.

The panel further noted that the worker successfully completed the VR plan and within months after the end of the job search period, successfully obtained a position in that occupational group which they maintained for more than one year. We find that this supports our conclusion that the worker is capable of working within NOC 6411.

The evidence before the panel also confirms that the WCB advised the worker that upon conclusion of the 14-week job search period at the conclusion of the plan, they would be deemed capable of earning the minimum established wage for that NOC. This information was provided initially with the VR plan sent to the worker on May 17, 2021, and confirmed upon completion of the retraining, with the amended VR plan confirming an August 4, 2022 end date, sent on March 31, 2022. During the job search period, the WCB continued to offer supports and provide job listings to the worker, confirming multiple further times that upon conclusion of the job search period, the worker's wage loss benefits would be reduced to reflect their new earning capacity in NOC 6411. The panel is satisfied that the WCB met its obligations to the worker in relation to the deeming process that would follow completion of the VR plan.

Further, the file evidence confirms that the WCB undertook the appropriate steps upon completion of the worker's VR plan to deem the worker capable of earning an amount that is the minimum earning capacity for NOC 6411, as required under the provisions of the Deeming Policy. That Policy requires that the WCB use the VR Plan as the basis for collecting and weighing information about the worker's earning capacity, so as to demonstrate that upon completion of such a plan, the worker is capable of competitively finding, competing for, obtaining, and keeping employment in the relevant occupation group, that the worker has the physical capacity, education, skills, aptitudes, interests, and personal qualities needed to obtain and keep employment in that occupation group, and that work exists for that occupation group.

Based on the evidence before us and applying the standard of a balance of probabilities, we are satisfied that the WCB appropriately implemented a deemed earning capacity for the worker in NOC 6411 effective August 6, 2022. The worker's appeal is therefore denied.

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 23rd day of October, 2025