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 under NOC 1411, General Office Support Worker is appropriate; and 

2. Their wage loss benefits should be reduced by the post-accident deemed earning capacity effective February 28, 2023.

A hearing was held on February 24, 2026 to consider the worker's appeal.

Issue

1. Whether or not the vocational rehabilitation plan under NOC 1411, General Office Support Worker, is appropriate; and 

2. Whether or not the worker’s wage loss benefits should be reduced by the post-accident deemed earning capacity effective February 28, 2023.

Decision

1. The vocational rehabilitation plan under NOC 1411, General Office Support worker is not appropriate; and 

2. The worker’s wage loss benefits should not be reduced by the post-accident deemed earning capacity effective February 28, 2023.

Background

The worker has an accepted WCB claim for a psychological injury that occurred at work on July 13, 2016. In a Healthcare Service Request dated March 18, 2021, permanent restrictions were placed for the worker noting they could not return to their previous employment or "…in any employment with potentially violent youth or frequent stressful situations." On June 1, 2021, the employer was advised of the worker's permanent restrictions and on June 7, 2021, advised the WCB they could not accommodate the worker. The worker was then referred for vocational rehabilitation services.

On April 12, 2022, a Vocational Rehabilitation Plan (“VR plan”) was developed for the worker under National Occupational Classification (“NOC”) 1411, General Office Support Workers, with a start date of June 27, 2022, and ending on January 27, 2023. As part of the VR plan, it was noted the worker would undergo computer training from June 27, 2022 to August 5, 2022, followed by job search preparation and assistance until January 27, 2023. On July 25, 2022, the worker contacted the WCB to advise of an issue they were having with their computer software and that the software required by the educational institution was not compatible. The worker noted the issue had been resolved but they would be required to redo some of the course work they had already completed.

The worker’s WCB vocational rehabilitation specialist spoke with the worker on January 3, 2023, to discuss their claim. It was noted that the worker had been active in their job search activities and that their vocational rehabilitation plan would be ending January 27, 2023, at which time, their wage loss benefits would be reduced. On February 10, 2023, the worker was provided with a letter from the WCB advising their vocational rehabilitation plan was completed as of January 27, 2023, and effective January 31, 2023, it was determined they were capable of earning minimum wage within NOC 1411, General Office Support Workers, and their wage loss benefits were reduced accordingly. On February 23, 2023, a Deem Recommendation was placed to the worker’s file by their vocational rehabilitation specialist confirming the WCB’s decision that the worker was capable of obtaining employment within NOC 1411, General Office Support Workers.

The worker requested reconsideration of the WCB’s decision to the Review Office on March 10, 2023. In their submission, the worker noted they believed the impact of their compensable psychological injury and their age had not been taken into consideration by the WCB when developing their VR plan. In addition, the worker noted that they had expressed an interest in Information Technology when initially working with the WCB to develop a plan but had been encouraged by the WCB to continue with the plan, under NOC 1411 General Office Support Workers, and noted they had been successful in finding work. As well, the worker noted they had discussed their ongoing psychological difficulties with their treating psychologist, who agreed they would be unable to function in a busy or noisy environment so a work from home position would likely work best.

The Review Office determined on May 5, 2023, the worker’s VR plan, under NOC 1411 General Office Support Workers, was correct and the worker was considered employable under it as of February 28, 2023. The Review Office accepted and agreed with the WCB that the duties under NOC 1411 fall within the worker’s permanent restrictions and that the worker had been provided training which, combined with their job skills, would make them employable within that NOC. However, the Review Office found that the worker had an issue with their computer training, which caused a delay and required the worker to redo work already done. As such, the Review Office determined the timeline for the worker to complete the VR plan should be extended to February 28, 2023 to allow the required time for the worker to complete the computer training.

The worker’s representative filed an appeal with the Appeal Commission on October 7, 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 ("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 VR 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.

Worker’s Position

The worker was present at the hearing, represented by a representative from the Worker Advisor Office. The worker’s representative relies on their previous submission and made an oral presentation to the appeal panel. The worker answered questions posed by their representative and by members of the appeal panel.

The worker’s position is that the WCB failed to help the worker achieve a return to sustainable employment in an occupation. The worker states that the occupation did not take into consideration the worker's post-injury capacity, skills, and aptitudes. The worker argues that the WCB did not conduct an adequate assessment of their abilities or provide adequate services to the worker.

The worker states that their treating psychologist noted that the worker would benefit from continued therapy in the context of vocational rehabilitation and recommended that the WCB contact the psychologist once the worker had progressed in their vocational rehabilitation. The worker’s position is that there is no medical evidence that supports they were psychologically capable of working full-time when the VR plan was implemented on June 27th, 2022.

The worker further notes that the WCB did not follow up on a recommendation from the WCB psychiatric advisor who opined that it would be advisable to reassess whether ongoing therapy is appropriate after the remaining sessions were completed. The worker states that this did not occur. The worker’s position is that the decision to move forward with the plan should not have occurred until after the worker's treatment provider was notified, treatment was reinstated with a VR goal in mind, and the worker's psychological status was reviewed by a WCB medical advisor. The worker states that participating in the VR plan is not the same as being capable of competitively finding, competing for, obtaining and keeping employment.

The worker’s position is the assessment of the plan was inadequate, and the vocational goal was not realistic. The worker’s psychological functioning was not adequately assessed. The worker argues that their transferable skills were not adequately assessed. The worker’s keyboarding skills were minimal, and this was not reviewed despite being crucial skills for general office work positions.

The worker acknowledges that they were provided with computer program upgrading, however the job search period was implemented before the worker had completed the training. The worker’s evidence is that they only completed three out of the four courses. The worker states that WCB never did confirm whether the worker had completed the basic bookkeeping. The worker argues that the job search period was implemented before the worker had the education and skills to competitively find, compete for, obtain and keep employment as required by the Deeming Policy.

The worker argues that they had been out of the workforce for nearly seven years, had no experience as a general office clerk and no relevant experience related to that occupation. The job postings required keyboarding skills and/or data entry skills, of which the worker had minimal skills and had not completed their training.

The worker’s position is that the vocational rehabilitation plan under NOC 1411, General Office Support Workers, was not appropriate and as a result, their wage loss benefits should not have been reduced.

Employer’s Position

The employer did not participate in the hearing.

Analysis

The panel notes that there is no dispute the worker sustained a compensable psychological injury and that, as a result, they have permanent restrictions which preclude a return to their pre-accident employment or to work involving potentially violent youth or frequent stressful situations.

The central questions in this appeal are whether the VR plan developed under NOC 1411 was appropriate in light of those restrictions and the worker’s overall vocational profile, and whether the WCB properly determined that the worker was capable of earning income within that occupation such that a deemed earning capacity should be applied.

Issue 1: Whether or not the VR plan for the National Occupational Classification (NOC) 1411 – General Office Support Worker is appropriate

For the worker's appeal on this issue to be successful, the panel must find that the VR plan for employment was appropriate for the worker. The panel was not able to make that finding, for the following reasons:

With respect to the appropriateness of the VR plan, the panel is guided by the requirements of the VR Policy, which mandate that any plan be based on a realistic vocational goal that reasonably considers the worker’s post-injury physical and psychological capacities, skills, aptitudes, and, where possible, interests. The VR plan must also follow adequate assessment and be designed to establish sustainable employment.

In this case, the panel is not satisfied that these requirements were met.

The evidence establishes that the worker had been out of the workforce for approximately seven years at the time the VR plan was implemented. The panel accepts the worker’s evidence that they had no prior experience in general office work and possessed only minimal keyboarding and computer skills. While the WCB provided some computer upgrading, the panel finds that the assessment of the worker’s transferable skills and skill gaps was limited and did not adequately account for the foundational competencies required for employment within NOC 1411. In particular, keyboarding proficiency and familiarity with office software are core requirements of such positions, yet the evidence indicates these skills were not sufficiently developed prior to the commencement of the job search phase.

Further, the panel places significant weight on the worker’s ongoing psychological condition. The medical evidence, including the permanent restrictions and the recommendations of the treating psychologist and WCB psychiatric advisor, supports that the worker required continued therapeutic intervention and monitoring in the context of any return-to-work planning. The panel finds that the WCB did not adequately follow up on recommendations to reassess the worker’s psychological status or to integrate ongoing treatment into the VR process before advancing the plan.

The panel accepts the worker’s submission that participation in a VR plan does not, in itself, establish capacity for competitive employment. On the evidence, the panel is not persuaded that the worker had the psychological capacity to sustain full-time employment in a general office environment at the time the plan was implemented or completed. The worker’s need to avoid stressful environments, combined with evidence that busy or noisy settings would be problematic, raises further concern regarding the suitability of typical office roles within NOC 1411.

The panel also notes the evidence that the worker encountered technical issues during the training component which required them to redo coursework and contributed to the incomplete training. While the Review Office extended the timeline to account for some delay, the panel finds that the evidence supports the worker’s position that not all required training components were completed prior to transitioning to job search activities. As such, the worker was not adequately prepared to competitively seek or obtain employment in the identified occupation.

The panel finds that the VR plan was not based on a sufficiently thorough assessment, did not fully consider the worker’s psychological limitations, and did not provide the worker with the necessary skills to realistically achieve sustainable employment within NOC 1411. Accordingly, the panel concludes that the VR plan was not appropriate.

Issue 2: Whether or not the worker’s wage loss benefits should be reduced by the post-accident deemed earning capacity effective February 28, 2023.

For a deemed earning capacity to be applied, the evidence must establish that the worker completed the training component of the VR plan, received reasonable job search assistance, and that the plan was based on reliable and current labour market information.

In this case, the panel is not satisfied that these conditions have been met. As noted above, the worker did not complete all aspects of the training required to equip them for employment within NOC 1411. In addition, given the deficiencies in the plan and the worker’s ongoing psychological limitations, the panel finds that the worker was not, on a balance of probabilities, capable of competitively obtaining and maintaining employment in that occupation at the relevant time.

The panel therefore finds that the WCB’s determination that the worker was capable of earning minimum wage within NOC 1411 as of February 28, 2023 is not supported by the evidence. As the foundation for the deemed earning capacity is not established, it follows that the reduction of the worker’s wage loss benefits on that basis was not appropriate.

The worker’s wage loss benefits should not be reduced by the post-accident deemed earning capacity effective February 28, 2023. The worker's appeal on this issue is allowed.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 24th day of April, 2026