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 for the National Occupational Classification (NOC) 4031 – Teacher was not appropriate; 

2. The vocational rehabilitation plan for the National Occupational Classification (NOC) 6552 – Customer Service was appropriate; and 

3. It was appropriate to implement a deemed earning capacity for National Occupational Classification (NOC) 6552 – Customer Service effective April 6, 2024.

A hearing was held on October 21, 2025 to consider the worker's appeal.

Issue

1. Whether or not the vocational rehabilitation plan for the National Occupational Classification (NOC) 4031 – Teacher is appropriate; 

2. Whether or not the vocational rehabilitation plan for the National Occupational Classification (NOC) 6552 – Customer Service is appropriate; and 

3. Whether or not it is appropriate to implement a deemed earning capacity for National Occupational Classification (NOC) 6552 – Customer Service effective April 6, 2024.

Decision

1. The vocational rehabilitation plan for the National Occupational Classification (NOC) 4031 – Teacher is appropriate; 

2. The vocational rehabilitation plan for the National Occupational Classification (NOC) 6552 – Customer Service is not appropriate; and 

3. Given the panel's decision with respect to Issue #2, this issue is moot.

Background

The worker has an accepted WCB claim for injuries sustained as a result of a fall while at work on May 30, 2018. The accepted diagnoses were an L2 burst fracture, multiple rib fractures and a left pneumothorax. The worker underwent a posterior decompression and instrumented fusion spinal surgery, after which, they participated in physiotherapy and received ongoing medical treatment.

On September 24, 2019, the worker attended for a functional capacity evaluation and the WCB advised the employer of the worker’s permanent restrictions on October 9, 2019. On October 16, 2019, the employer advised the WCB they were unable to accommodate the worker and the following day, the worker was referred for vocational rehabilitation services. In an initial discussion with the WCB’s vocational rehabilitation specialist on January 8, 2020, the worker advised they had already begun education retraining on their own, starting with university courses towards an education degree.

A Vocational Rehabilitation Plan was developed for the worker on October 20, 2020. The WCB supported the worker in their goal to become a teacher and as such, the Plan was created with the Occupational Goal of NOC 4031 – Teacher, with a start date of September 2020 and an end date of October 2024. It was noted the worker had advised the vocational rehabilitation specialist they were fully committed to the Plan and had an end goal to become a secondary teacher. The Plan noted that when the worker completed the Plan, they would be considered fully employable and would likely be earning more than their pre-accident income. The Plan also noted the WCB may not authorize extensions to the Plan should the worker not complete the university program and an alternate plan under NOC 6552 – Customer Service would then be in place.

The worker continued to attend class and provide the WCB vocational rehabilitation specialist with regular updates on their progress. On March 16, 2023, the worker contacted the WCB to advise they were experiencing personal difficulties that made them unable to continue their schooling at that time. On April 24, 2023, the WCB learned the worker had been arrested, charged with an offence and was currently incarcerated. The worker’s wage loss benefits and vocational rehabilitation plan was suspended as of March 17, 2023 due to the worker’s inability to participate in the plan.

On August 21, 2023, the worker contacted the WCB to advise they had been released from custody on August 18, 2023. The WCB reinstated the worker’s wage loss benefits on that date. The worker contacted the WCB on August 29, 2023 to advise they had contacted their school and they would be continuing with their educational plan. On September 8, 2023, the worker advised the WCB they had spoken with their school and had been advised they could not be placed in a practicum until their legal difficulties had been dealt with, possibly at the end of the worker’s schooling. On November 16, 2023, the worker advised the WCB vocational rehabilitation specialist they believed they had approximately 2 years of schooling left. A discussion between the worker’s WCB case manager, sector manager, vocational rehabilitation specialist and manager took place on November 20, 2023 regarding the worker’s vocational rehabilitation plan. It was decided during that meeting that given the concerns regarding the worker’s ability to complete the vocational rehabilitation plan, a new plan for the worker should be developed with the intent of returning the worker to work. On December 19, 2023, the WCB sent the worker an amended Vocational Rehabilitation Plan under NOC 6552 – Customer Service and advised the purpose of the amendment was to develop a plan that would enable the worker to return to work in a timely manner. The Plan included a 13-week job search period, scheduled to end on April 5, 2024.

The worker requested reconsideration of the WCB’s decision to amend their vocational rehabilitation plan to Review Office on January 4, 2024. The worker noted concern with the change in the plan as they had been actively working towards their goal of getting an education degree for the past 3 to 4 years, with a goal to finish within 7 years. The worker noted they continued to be actively involved in their schooling and remained in good standing with the school and was working with the school to finish their program. In addition, the worker noted the physical requirements within NOC 6552 – Customer Service were likely outside of their current physical restrictions.

On January 16, 2024, the Review Office determined the worker’s vocational rehabilitation plan for NOC 4031 – Teacher was not appropriate and the vocational rehabilitation plan for NOC 6552 – Customer Service was appropriate. The Review Office found the evidence on the worker’s file indicated the worker had been advised by their educational institution they were accepted into the institution subject to the worker not having being involved with any further criminal activity. As such, the Review Office found the worker’s recent difficulties may render them unable to continue their education or be employable within their chosen field. The Review Office further found the vocational rehabilitation plan under NOC 6552 was more cost effective given the evidence on file from the worker their grades were low and they may be placed on academic probations. As well, Review Office found the duties within NOC 6552 would be within the worker’s restrictions, there was a viable job market for that NOC and given the worker’s skill set, it was a realistic employment goal. The worker filed a further request for reconsideration that NOC 4031 was not appropriate on February 28, 2024 and included a letter from their educational institution in support of the worker’s appeal. The institution noted the worker was a student in good standing and that the worker had disclosed to them their legal difficulties and a decision was made to allow the worker to continue with their studies, with the exception of a practicum. The institution noted that once the worker’s difficulties had been resolved, it was likely the worker would be able to complete their practicum requirement and earn their degree. On March 11, 2024, Review Office upheld their previous decision the worker’s vocational rehabilitation plan for NOC 4031 was not appropriate. Review Office considered the information provided by the educational institution and found the information indicated the worker may not be able to continue with the practical requirement of the course due to current legislation requiring people placed in school classrooms to have clear criminal record checks. In addition, Review Office noted the worker’s vocational rehabilitation plan under NOC 4031 would require a 2 year extension due to the worker’s legal difficulties and found that plan was not the most cost effective given the extension. Accordingly, Review Office found the alternate plan under NOC 6552 was appropriate.

On March 26, 2024, the WCB provided the worker with a decision letter advising that based on their vocational rehabilitation plan, their 13-week job search period was ending as of April 5, 2024 and as such, they were deemed employable within NOC 6552 – Customer Services and capable of earning the minimum wage within that NOC. On June 25, 2024, the worker’s representative requested reconsideration of the WCB’s to implement a post-accident deemed earning capacity for the worker effective April 6, 2024. The representative submitted the WCB relied on a functional capacity evaluation from September 24, 2019 to determine the worker would be physically able to work within NOC 6552. The representative noted the worker’s physical functioning had changed and as such, the physical duties within that NOC would not be appropriate. As well, the representative noted the WCB should have the worker’s functioning re-evaluated to determine their current level of functioning. The representative further submitted the worker had no prior history of working within the customer service industry and may not have the skills and/or personal qualities required for positions within that NOC. Also included with the submission was a May 1, 2024 report from the worker’s treating physician indicating the worker’s sitting tolerance had changed since the previous functional capacity evaluation and recommended the worker be reassessed. On July 4, 2024, Review Office returned the worker’s file to the WCB’s Compensation Services for further investigation. On July 18, 2024, the WCB provided the worker’s representative a decision letter advising there would be no change to the earlier decisions related to the implementation of a deemed earning capacity for the worker within NOC 6552 – Customer Service as it had been determined the new medical information submitted did not support a change in the worker’s functioning.

The worker’s representative again submitted a request for reconsideration of the WCB’s decision to Review Office on July 31, 2024. Again, the representative noted the worker’s functioning had changed since the 2019 functional capacity evaluation and the WCB should reassess the worker’s permanent restrictions prior to determining the worker capable of performing job duties within NOC 6552. The Review Office returned the worker’s file to the WCB’s Compensation Services on September 11, 2024 for further investigation into whether the worker’s permanent restrictions have changed and for the WCB’s rehabilitation specialist to provide specific jobs within NOC 6552 that the worker could perform within their restrictions.

The WCB’s vocational rehabilitation specialist placed a memorandum to the worker’s file on September 24, 2024, noting that NOC 6552 had been updated to a new category, now referred to as NOC 64409 – Other customer and information services representatives. A current labour market review of the local area indicated a large number of full time workers in that field and a related field of NOC 64100 – Retail Salespersons. The specialist noted these positions typically allowed for a variety of postures for workers within those positions, “With the majority of contemporary employers providing for and or allowing for flexible sit-stand workstations and sit-stand customer intake counter arrangements.” In the opinion of the WCB rehabilitation specialist, “…there are now likely a few thousand NOC 64100 labour market positions evolving towards more of a NOC 64409 type nature and work environment, inclusive of providing for the varying ergonomic needs (i.e. sit-stand) of the workforce.” On November 21, 2024, the WCB advised the worker and their representative the worker's permanent restrictions remained appropriate and the implementation of a deemed earning capacity under NOC 6552 - Customer Service also remained appropriate. It was also noted the WCB attempted to contact the worker's treating physician to provide further information regarding the worker's physical capabilities but was unsuccessful. On November 27, 2024, the worker's representative sent an email message to the WCB setting out their concerns with the information set out in the November 21, 2024 letter. A further decision letter was sent to the worker and their representative on December 12, 2024 clarifying the information in the WCB's previous letter and advising there would be no change to the earlier decisions.

On December 13, 2024, the worker's representative again requested reconsideration of the WCB's decision to Review Office. In their submission, the representative noted the May 1, 2024 report from the worker's treating physician indicated a significant decrease in the worker's sitting and standing tolerances but the WCB chose not to accept that information as the physician had not examined the worker and had based that opinion on the worker's reporting. The representative argued the WCB should have requested a reassessment of the worker's functional capabilities before determining they were capable of the physical requirements under NOC 6552 rather than use the results of the September 24, 2019 functional capacity evaluation. On February 11, 2025, Review Office determined it was appropriate to implement a deemed earning capacity for the worker for NOC 6552 - Customer Service. Review Office found, based on the evidence on the worker's file, the worker had the physical capacity, education, skills and personal qualities required to obtain employment within NOC 6552. Review Office further found the worker's revised restrictions would not have hampered the worker's ability to gain employment or work the job duties within that NOC and as such, the implementation of a deemed earning capacity effective April 6, 2024 was appropriate.

The worker's representative filed an appeal with the Appeal Commission on March 28, 2025 and a hearing was arranged.

Reasons

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act ("Act"), regulations under that Act and the policies established by the WCB's Board of Directors. The provisions of the Act in effect as of the date of the worker’s accident are applicable.

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. When 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, compensation is payable under s 37 of the Act.

The WCB Policy 43.00, Vocational Rehabilitation, (“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.

While retraining and re-education is one of the last options it may be provided as part of one of the other options. 

… 

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 can be provided and the requirements for development of an individualized VR plan, which is intended to help a worker establish sufficient vocational potential to eliminate or minimize their loss of earning capacity. Such a 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 attaining 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. Each plan must contain a financial implications report that indicates associated costs and that the plan is cost-effective as against no plan or other available options.

The WCB has also established Policy 44.80.30.20, Post-Accident Earnings - Deemed Earning Capacity (“Deeming Policy”) which provides when a worker will be deemed capable of earning an amount that they are not actually earning and how the deemed earning capacity will be determined. Since January 1, 1992 WCB has operated on a wage-loss model that pays a worker based upon the difference between the worker’s average earnings before the accident and what the worker earns, or is capable of earning, after the accident (“post-accident earning capacity”).

Usually, a worker’s post-accident earning capacity is the amount that they are actually earning; however, there are some circumstances in which the WCB will determine that a worker is capable of earning more than they are actually earning. In those circumstances, the WCB will deem the amount that the worker is capable of earning and will include it in the calculation of post-accident earning capacity as if it had, in fact, been earned. The Deeming Policy provides that deemed earning capacity will be used in calculating a loss of earning capacity when a worker has participated in a VR plan and:

i. The worker has completed the training part of the vocational rehabilitation plan designed to help the worker obtain new skills or improve current skills;

ii. The worker has been given reasonable job search assistance (i.e., separate from the training part of the plan); and,

iii. The information the plan was based on, including labour market analysis, has not substantially changed.

The Worker’s Position

The worker was represented by a worker advisor. The advisor provided an oral submission and relied as well upon the written submission provided in advance of the hearing. The worker provided oral submissions as well as testimony through answers to questions posed by their advocate and by members of the appeal panel.

The worker’s position as outlined by their representative is that the appeal should be granted as the evidence confirms that (i) the vocational rehabilitation plan within NOC 4031 – Teacher (“Teacher Plan”) is appropriate, (ii) the vocational rehabilitation plan for the National Occupational Classification (NOC) 6552 - Customer Service (“Customer Service Plan”) is not appropriate, and (iii) it is not appropriate to implement a deemed earning capacity for the Customer Service Plan effective April 6, 2024.

The worker’s advocate addressed the concerns raised by the Review Office involving the viability or suitability of continuing the Teacher Plan, the worker’s likelihood of being granted a teaching certificate, and the likelihood of employability if the worker was to be granted a teaching certificate. In particular, the worker and their advocate provided updated information on the worker’s current situation, their transcript, the fact that the worker was now placed in a practicum block, and that the institution where the worker was enrolled has continued to express support in the worker completing their educational training. 

With respect to the financial implications report (“FIR”), the worker and their advocate also raised concerns about the verifiability of the costs levied against the Teacher Plan. In particular, the FIR for November 20, 2023 has listed $50,500.00 as cost for Clothing/Equipment, Tuition/Books etc., while the prior FIR for October 2020, had the same line item at $33,000.00. The worker’s advocate expressed concerns as the costs appeared to increase while the requirements to complete the program were significantly less in 2023, than in 2020. The advocate also pointed out that the worker provided evidence that the worker’s First Nation band was covering the expenses related to the worker’s books, tuition, and school fees, and it was not immediately clear as to what actual expenses WCB was paying under the FIR.

The worker also gave evidence as to his current status as a practicum student, and how the worker is currently teaching kindergarten students. The worker gave evidence that they feel that by doing this work, the worker has “found their calling”, and that to be told to enter an occupation in customer service would negatively affect the worker “emotionally and spiritually”. The worker also gave evidence that in May 2025, they were acquitted of all charges, and at the time of the hearing, the worker was two years away from completing their teaching program.

With respect to the issue of whether the Customer Service Plan for the worker is appropriate, the worker’s advocate submitted that the plan is not appropriate as the physical demands are inconsistent with the worker’s physical restrictions arising from the compensable injury and because the job demands of a customer service representative do not align with the worker’s capabilities. The advocate pointed out that the functional capacity evaluation relied on by WCB was four and a half years outdated. A current May 2025 letter from the worker’s physician stated that the worker’s capacity for prolonged sitting and standing had reduced from one hour to “15 to 20 minutes at most”. The worker’s advocate outlined that the worker’s current physical limitations made the likelihood of working in a customer service setting an impractical option. The worker also gave evidence that they were not well suited to customer service work, and that they had no skills to apply to that occupation.

In sum, the worker’s position is that they have found an occupation that they feel passionate about, and are capable of physically, and mentally fulfilling the tasks it entails. The worker is receiving support from their First Nation band, their community, and their educational institution.

Employer’s Position:

The employer did not participate in the hearing.

Analysis

Issue 1: Whether or not the vocational rehabilitation plan for the National Occupational Classification (NOC) 4031 - Teacher is appropriate ("Teacher Plan")

For the worker's appeal on this issue to be successful, the panel must find that the Teacher Plan for employment was appropriate for the worker. The panel is able to make that finding, for the reasons that follow.

The evidence shows that the worker was previously a labourer. Due to his compensable injuries which required surgery on May 31, 2018, permanent restrictions were imposed on the worker. Prior to a VR Plan being developed, the worker, on their own volition, enrolled in an Educational Degree at a university. By the time that the VR Plan’s assessment was concluded on January 8, 2020, the worker had already completed four courses.

The WCB approved the Teacher Plan, and was it scheduled to be completed by July 2024, with the worker obtaining their Bachelor of Arts and Education, followed by WCB job search assistance from August to October 2024. The worker was advised "for whatever reason you are unable to complete the university program, please be advised that WCB may not authorize extensions" and an alternate plan for the NOC 6552 - Customer Service would be considered.

The worker was arrested, charged and subsequently incarcerated on March 17, 2023. Wage loss benefits were suspended effective March 17, 2023, given the worker's incarceration and inability to attend university.

On January 16, 2024, the Review Office denied the worker’s appeal to reinstate the Teacher Plan in part due to the worker’s grade point average being “possibly close to academic probation” and that the potential that the worker will not be able to acquire their teaching certification, “given the school-to-school request for a criminal record." Furthermore, the Review Office noted that the Teacher Plan was not cost effective as the latest FIR compared both VR Plans and their costs; with the Teacher Plan reported to cost - $288,621.28 and the Customer Service Plan was reported to cost only - $183,205.16.

On March 11, 2024, the Review Office again denied the worker’s appeal to reinstate the Teacher Plan in part due to the following reasons:

“The worker's current criminal record status makes it so he cannot complete his required practicum under the plan. His program has been delayed by two years, with the potential for further delays. Meanwhile, the NOC 6552 – Customer Service, which is the default plan, has no obvious barriers to completion, and is the more cost-effective plan.”

The panel notes that the WCB had an obligation to undertake a proper assessment to determine whether the Teacher Plan was suitable or appropriate in the circumstances. The panel also notes that as part of the VR Policy, the WCB must consider a variety of factors in implementing a VR Plan, including the following:

“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.” [emphasis added]

…

8 . Every IWRP will include a Financial Implications Report. This accounting of costs will be attached to and forms a part of the plan. The Financial Implications Report will indicate all the costs associated with the plan and when it is expected that these costs will be experienced. The report will also project the amount of post-plan wage loss benefits.

9. The WCB will demonstrate that the IWRP is cost-effective. The test of cost-effectiveness takes into consideration the costs which are expected without the plan versus with the plan. As well, it is necessary to compare costs against available options.

…

13. If the plan requires revision due to unforeseen developments in the vocational rehabilitation process, amendment of the plan will be acknowledged by all involved parties. All the requirements for developing the initial plan apply to the amendment.

14. The WCB will be flexible in its management of the plan and reasonably respond to change. The WCB will monitor the plan to determine if the plan is progressing as anticipated. Where this is not the case, adjustments will be made in consultation with the worker and the service providers involved in the worker's rehabilitation. The WCB will evaluate the plan at the attainment of identified outcomes in the plan.” [emphasis added]

The panel is not satisfied that a proper or sufficient assessment was done with respect to the worker's background, interest, capabilities, or legal eligibility to continue in their chosen program.

The panel notes, for example, that there appears to be no consideration given to the worker’s background, passion for teaching, nor the letters of support that they obtained from their educational institutions, spiritual advisors, and other school workers that the worker was involved in. For example, the worker presented a letter dated June 5, 2025 from the Manager of the Faculty of Education - Access Program which states:

“At a time when school divisions across Canada are facing teacher shortages, especially Indigenous teachers, [the Worker] has the opportunity for a very bright future and [they are] two short years away from becoming a teacher. Given the amount of money, effort and time invested by [the Worker] and the Workers Compensation Board of Manitoba, it would seem wrong to end [the Worker’s] funding now.”

The worker gave written evidence to demonstrate several obstacles that they faced in their life; the worker stated that they lived in a reserve, that they grew up in a poor family, that they spiraled downwards into a chaotic lifestyle, that they started drinking, gambling, as well as hanging out with the wrong types of people. The worker also gave evidence of overcoming those obstacles by working in construction, and when they become permanently injured, overcoming that obstacle by transitioning into education. The panel recognizes and commends the worker's fortitude and passion in overcoming the challenges that were presented in their life.

The panel also notes that the WCB outlines the difference in costs between both VR Plans and stated to the worker that the Teacher Plan was the less cost-effective option. However, the WCB’s calculation of costs in their November 20, 2023 FIR does not appear to factor in that the Worker’s First Nations band was supporting the worker in covering the costs involved in the worker’s tuition, and school fees, or the fact that the worker stated that they had applied for and obtained student loans. Furthermore, the FIR estimates the worker’s transportation costs at $6,000.00. however, when the worker was questioned about this, the worker explained that all he has been provided by the WCB is a monthly bus pass, which costs approximately $100.00 per month. Due to these discrepancies the panel was unable to verify the accuracy of the FIR.

The panel also notes that while reference was made to the worker having a prior criminal record, an offer was made by the Professional Certification Unit of Manitoba to have an assessment done on the viability of a person being granted a Teaching Certification based on criminal records and other factors. However, it does not appear that this offer was accepted, nor was this assessment done. Furthermore, there is no evidence that a more recent criminal record check was considered. It appears from the panel that once the worker was initially charged with a crime, the WCB did as little as possible in order to end the Teacher Plan and end the claim. The panel is of the opinion that given the workers Indigenous heritage and past circumstances that by the WCB not following through and at the very least attempting to validate that the worker could or would not receive their certification is not in line with the spirit the VR program and the spirit of the Truth and Reconciliation calls to action.

There does not appear to be any evidence on file that the WCB attempted to verify the worker’s eligibility to be placed in a practicum block, or to continue their educational program. Rather, it was the worker who provided documentary evidence that:

- The worker is a student in good standing; 

- The worker’s cumulative grade point average remains above the minimum 2.0; 

- Failed attempts in their transcript are not counted in assessing a student’s eligibility for graduation; and 

- That the worker has been absolved from all their criminal charges and are currently in a practicum block.

Lastly, the panel notes that what has occurred with the worker being charged and incarcerated, and then subsequently acquitted of the said charges can appropriately be seen as an unforeseen circumstance. The VR Policy states that in such circumstances, the Teacher Plan ought to have been revised and or adjusted. It was incumbent on the WCB to be flexible in its management of the plan and reasonably respond to change. Given the progress of the worker in their program, and the demonstrated willingness of the worker to overcome their legal barriers, and physical injuries, it was unreasonable for the WCB to terminate the Teacher Plan and relegate the worker to a customer service role. This would have resulted in the worker earning less than what they would have earned prior to their injury and destabilized the worker’s ability to remain employed.

In the circumstances, the panel is satisfied, on a balance of probabilities, that the vocational rehabilitation plan for employment in National Occupational Classification (NOC) 4031, Teacher was appropriate for the worker. The worker's appeal on this issue is allowed.

Issue 2: Whether or not the vocational rehabilitation plan for the National Occupational Classification (NOC) 6552 – Customer Service is appropriate.

In order for the Worker to succeed in their appeal on this point, they would have to demonstrate that the Customer Service Plan is not appropriate. The Panel is able to make that determination.

Under the Administrative Guidelines to the VR Policy - Vocational Assessment Services, the policy states:

“3. Adequate assessment is crucial to the development of a reasonable vocational rehabilitation goal. A goal can only be realistic if it reasonably takes into consideration the worker's functional capacity, education, work history, personal and occupational preferences or characteristics, vocational skills, transferable skills, etc.

…

5. As part of helping the worker through the assessment process, the WCB may use specific tools, techniques, and methods, including the following:

…

b. Functional Capacity Evaluation - This is an evaluation of a worker's physical capabilities based on performance in a real or simulated work environment. This evaluation should detail maximum weight capacities for lifting, pushing, pulling, limitations if any, in standing, sitting, kneeling, walking, reaching, and bending, overall musculoskeletal status and general conditioning level. This assessment provides guidelines regarding a return to work and vocational planning. It can be adapted for the purposes of evaluating general capabilities or capabilities specific to an identified vocational option.” [emphasis added]

The file information recorded the worker has permanent restrictions (placed in 2019) pertaining to his injuries, as follows: Avoid prolonged standing over 60 minutes, avoid prolonged sitting over 60 minutes, avoid use of ladders over three rungs, avoid crawl/kneel activities, avoid both arm lifts floor to waist over 25 pounds, avoid both arm lifts waist to shoulder over 30 pounds, avoid both arm lifts thigh to chest over 40 pounds, avoid both arm carry over 30 pounds and avoid continuous driving over 60 minutes.

The worker provided a letter from their family physician dated May 1, 2024, which provided updated information on the worker’s physical abilities:

“…physical tolerances have changed since…last assessed by WCB and I do not know if customer service jobs are possible ... cannot sit for an hour or stand for an hour any longer. While in class [they] will often sit for 15-20 minutes and then have to get up and stand for a while (sic) before needing to sit again. I am not sure which jobs will allow this flexibility.”

The Review Office provided reasoning that it has accepted the worker’s updated physical limitations but has reasoned that NOC 6552 – Customer Service contain a variety of tasks/jobs and the WCB relies primarily on the comments from the VR Manager dated September 24, 2024 regarding "the viability and suitability of the worker's current VRP in NOC 64409 (formerly NOC 6552)", reproduced as follows:

“For the NOC 64409 group of workers, it has been VR Services historical experience that these positions and work environments typically provide an advantageous amount of as required postural variation through the workday. With the majority of contemporary employers providing for and or allowing for flexible sit-stand workstations and sit-stand customer intake counter arrangements. Progressive advancements in labour standards and employee awareness have helped to optimize the varying ergonomic needs of the workforce for this occupational field.”

The panel gave careful consideration to the limited medical evidence on file, including the evidence from the worker’s family physician. All of the medical evidence indicated that the worker continued to experience ongoing physical limitations, and the panel accepts this evidence from the worker.

The panel finds however, that the comments from the VR Manager relied on by WCB is speculative; although such progressive accommodations from employers may exist, there is no evidence provided to support this opinion. The panel also notes that the WCB did not conduct a medical examination of the worker to assess their new physical limitations. It appears that the WCB merely accepted that the worker may be able to physically do the work under the Customer Service Plan but did little to demonstrate that the worker was actually physically capable of doing the said work.

Given the panel’s conclusion that the worker’s ongoing physical limitations would have made it difficult for the worker to find and maintain sustainable employment in customer service, the VR Plan in 6552 – Customer Service was not appropriate.

Issue 3: Whether or not it is appropriate to implement a deemed earning capacity for National Occupational Classification (NOC) 6552 – Customer Service effective April 6, 2024.

In light of our decision on Issue #1 and #2 above, the panel is unable to find that it is appropriate to implement a deemed earning capacity for National Occupational Classification (NOC) 6552 – Customer Service effective April 6, 2024

The worker's appeal on this issue is allowed.

Panel Members

R. Mamucud, Presiding Officer
J. Peterson, Commissioner
S. Magian, Commissioner

Recording Secretary, J. Lee

R. Mamucud - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 17th day of December, 2025