The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that it was appropriate to implement a post-accident deemed earning capacity effective May 14, 2022. A hearing was held on September 9, 2025 to consider the worker's appeal.

Issue

Whether or not it is appropriate to implement a post-accident deemed earning capacity effective May 14, 2022.

Decision

It is not appropriate to implement a post-accident deemed earning capacity effective May 14, 2022.

Background

The worker has an accepted WCB claim for an injury to their left ankle that occurred at work on June 19, 2006, when they fell approximately 10 to 12 feet off a roof. The worker underwent an open reduction and internal fixation surgery on June 24, 2006. The WCB accepted the worker’s claim and the payment of various benefits commenced.

On July 10, 2007, temporary restrictions of no continuous walking over 30 minutes, no use of ladders, limited use of stairs and no repetitive crouching, kneeling or lifting and carrying weights over 20 pounds were put in place, and later became permanent. The employer advised the WCB on August 14, 2007 that they could not accommodate the worker. The WCB then referred the worker for vocational rehabilitation services. It was noted at the time of the referral, the worker required English language training, which was later completed by the worker.

The WCB’s vocational rehabilitation specialist prepared a Vocational Rehabilitation Plan for the worker on July 6, 2012 for National Occupational Classification NOC 2253, Drafting Technician. The Plan included various supports for the worker from the WCB and had an end date of March 3, 2015, including a job search period. Due to issues not related to the claim, the worker’s start date for a training program was delayed and the Plan was amended on February 13, 2013, with a new ending date of September 23, 2015. The worker reported ongoing difficulties with their left ankle and other non-compensable issues while attending the training program and as such, the Vocational Rehabilitation Plan was extended to June 27, 2016, and later extended further to December 2016.

The worker’s vocational rehabilitation plan and other services were placed on hold by the WCB due to the worker’s ongoing and increasing difficulties with their left ankle. In January 2017, the worker's vocational rehabilitation plan was placed on hold pending the worker's appointment with an orthopedic specialist for possible further surgery on their left ankle. The worker first met with the specialist on March 27, 2017, with conservative treatment recommended. After receiving a pain injection, the treating specialist noted the worker did not experience any relief and suggested the worker be referred to a pain clinic. A further referral to an orthopedic surgeon was made on December 6, 2017. The worker was seen by the surgeon on May 17, 2018, who noted the worker had peritalar osteoarthritis and referred the worker for a CT scan to investigate further. At a follow-up appointment on September 11, 2018, the treating surgeon noted the CT scan indicated "…significant osteoarthritic changes in the subtalar joint along with heterotopic ossification of the sinus tarsi and the posterior ankle" and recommended further surgery, which took place on April 1, 2019.

After the worker underwent post-surgery physiotherapy and other treatment, the worker's restrictions of no continuous walking over 30 minutes, no walking on rough or uneven ground, no ladders, limited use of stairs with handrail, no occasional lift or carry over 15 pounds and avoid repetitive crouch, squat and kneel activities were determined to be permanent by a WCB medical advisor on May 19, 2020, and the worker's file was returned to the WCB's vocational rehabilitation specialist.

On October 29, 2020, the WCB vocational rehabilitation specialist conducted a Transferable Skills Analysis - Stage 2 for the worker and recommend an extension of the worker's vocational rehabilitation plan under NOC 2253 Drafting Technician. It was noted the worker would need further upgrading and continuing education courses. A Vocational Rehabilitation Plan Amendment was completed on November 19, 2020, indicating a Plan end date of March 26, 2022, which included a job search period. The Plan was later extended to May 23, 2022. On May 16, 2022, the worker contacted the WCB to request a further extension to their job search period due to non-compensable health issues. The WCB advised the worker the job search period would not be extended.

The WCB vocational rehabilitation specialist arranged a Deem Committee meeting on May 19, 2022 to discuss the worker's claim. At that time, it was determined the worker was employable within NOC 2253 Drafting Technician and effective May 24, 2022, their wage loss benefits would be reduced by the deemed earning capacity within that NOC. On May 26, 2022, the WCB provided the worker with a formal decision letter advising of the decision of the Committee.

The worker requested reconsideration of the WCB's decision that they were employable in NOC 2253 and the reduction in the wage loss benefits on May 24, 2022 to the Review Office on May 3, 2023. The submission noted the deem summary prepared by the WCB vocational rehabilitation specialist indicated there was a positive labour market for NOC 2253 Drafting Technician in November 2020 but stated that a labour market survey was not conducted for May 2022 to determine the market at the time the worker was deemed employable in that NOC. As well, it was noted that the minimum amount of job search weeks was provided to the worker, noting, at the time of the job search, that the worker had not worked for over 14 years and should have been provided with a longer search period. It was submitted that the worker should have been provided with further full wage loss benefits until they secured employment or for a longer job search period.

The Review Office determined on July 6, 2023 that the worker's vocational plan was appropriate and the worker's wage loss benefits were correctly reduced effective May 24, 2022 based on the earning capacity of NOC 2253, Drafting technologists and technicians. The Review Office found the physical restrictions under that NOC were within the worker's permanent restrictions, and that there was a viable labour market within that NOC. The Review Office further found that while the worker's vocational rehabilitation plan was spread out over several years for various reasons, the WCB provided the worker with several services to assist the worker. In addition, the Review Office noted the worker was provided with 16 weeks of job search services and found that time was appropriate.

The worker's representative filed an appeal with the Appeal Commission on May 14, 2025 and a hearing was arranged. Following the hearing, the appeal panel requested additional information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On May 21, 2026, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation and Policy

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

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

The WCB has established a policy which describes post-accident earnings that may be included in benefit calculations, Policy 44.80.30.10, Establishing Post Accident Earning Capacity (the “Post-Accident Earnings Policy”). The WCB is a wage-loss model which means it 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.

Policy 44.80.30.20, Post Accident Earnings - Deemed Earning Capacity (the “Deeming Policy”), is a companion to the Post-Accident Earnings Policy. Usually, a worker’s post-accident earning capacity is the amount that he or she is actually earning. However, there are some circumstances in which the WCB will determine that a worker is capable of earning more than he or she is 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 describes:

1. When a worker will be deemed capable of earning an amount that he or she is not actually earning; and 

2. How the deemed earning capacity will be determined.

The Deeming Policy outlines requirements that the WCB must demonstrate for income to be deemed, which include, at paragraph 3 of the Deeming 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 considers changes in circumstances that occur during the course of the plan. It states as follows:

a) If the information on which the plan was based has changed, the deemed earning capacity will be based on the worker's new (changed) earning capacity and not the earning capacity originally anticipated by the plan.

b) If this change results in an earning capacity which is lower than first expected, the WCB may continue (i.e., where vocationally appropriate for the worker and cost-effective for the WCB) full or partial wage-loss benefits together with more vocational rehabilitation efforts.

Worker’s Position

The worker was present at the hearing, represented by a worker advisor. A submission was made to the panel, and it was noted that the worker was relying on their prior written submission sent to the Review Office in 2023. The worker provided testimony by way of responses to questions posed by their representative and by members of the panel.

The worker states that the VR plan that was originally implemented was appropriate however the labour market circumstances changed significantly since the implementation of the plan and the worker’s circumstances impacted their ability to competitively obtain employment within the job search period provided.

The worker submits that they should have been offered job search skills training following their training. The worker states that through no fault of their own the VR plan was delayed and amended multiple times. Once the worker’s health stabilized, the worker was granted additional drafting courses as it had been four years since they last used their drafting skills.

The worker notes that the Transferable Skills Analysis from September 2020 identified the job outlook as fair. The worker submits that this was less than ideal, as an older worker with limited Canadian employment experience seeking to re-enter the workforce after a 14-year absence.

The worker also notes that the reliance on labour market information from a 2020 Earning Capacity Assessment, was not appropriate. The Assessment asserted there was a viable job market in 2020. The Review Office quoted the Government of Canada's website which stated, "Although this occupational group has had a balanced market in recent years, projected job seekers are expected to be substantially higher to job openings, creating a surplus of workers over the 2022 to 2031 period." The worker states that this is contradictory as a surplus of workers does not create a viable market. The worker argues that the Deeming Policy directs the WCB to apply deemed earning capacity only after the worker has completed the training part of the VR plan, has been given reasonable job search assistance separate from the training part of the plan and the information the plan was based on (including the labour market analysis) has not substantially changed. The worker states those steps were not completed.

The worker submits that the labour market changed from balanced or fair in 2019 to a substantial surplus of workers in 2022 to 2031 which was a significant and unfavourable labour market change and therefore the deem was inappropriate. The worker argues that the Deeming Policy provides that the WCB may continue full or partial wage loss benefits in these circumstances. The worker also submits they were not provided with reasonable job search assistance.

The worker is seeking a determination that the decision to implement a post-accident deemed earning capacity was inappropriate.

Employer’s Position

The employer did not participate in the hearing.

Analysis

The question for the panel to determine is whether the WCB appropriately implemented a post-accident deemed earning capacity effective May 14, 2022. For the worker’s appeal on this question to succeed, the panel would have to determine that the WCB failed to comply with the requirements of the Act and applicable policies in deeming the worker capable of earning income at the level established for the occupational group selected. As detailed in the reasons that follow, the panel was able to make such a finding and therefore the worker’s appeal is granted.

The panel finds the requirements of the Deeming Policy were not met at the time the WCB implemented the deem.

The Deeming Policy requires the WCB to demonstrate not only that the worker has the capacity to perform the occupation but also that the worker is capable of competitively finding, obtaining and maintaining employment and that work exists within the selected occupation. The policy further recognizes that where the information upon which the vocational rehabilitation plan was based has changed, the deemed earning capacity must reflect the worker’s changed earning capacity rather than the earning capacity originally anticipated by the plan.

The evidence establishes that the worker’s vocational rehabilitation plan was significantly prolonged through no fault of the worker. Following the original plan, the worker experienced a deterioration in their compensable ankle condition, requiring further medical investigations and ultimately additional surgery in April 2019. These developments resulted in the vocational rehabilitation plan being suspended for several years before resuming in late 2020 with additional upgrading courses because the worker’s drafting skills had become outdated. The panel accepts that these delays substantially altered the circumstances that existed when the original vocational rehabilitation plan was developed.

The panel is also persuaded that labour market conditions had materially changed by the time the worker completed the amended vocational rehabilitation plan in 2022. While the WCB relied primarily upon labour market information gathered in 2020, the evidence before the panel, including the Government of Canada labour market information referenced by the Review Office, indicated that the occupation was expected to experience a surplus of job seekers relative to available positions over the 2022 to 2031 period. In the panel’s view, this represented a significant change from the assumptions underlying the earlier labour market assessment. The panel is unable to conclude, on a balance of probabilities, that the WCB demonstrated that suitable employment continued to exist in sufficient quantity to satisfy the requirements of the Deeming Policy at the time the deem was implemented.

The panel also places weight on the worker’s individual employment circumstances. By the conclusion of the vocational rehabilitation plan, the worker had been absent from the workforce for over 14 years through circumstances largely related to the compensable injury and subsequent medical treatment. The worker had no Canadian employment experience in drafting, was an older worker entering a new occupation, and had only recently completed refresher training. While the worker successfully completed the educational requirements of the vocational rehabilitation plan, the panel is not satisfied that this alone established that the worker was capable of competitively obtaining employment in the labour market.

In reaching this conclusion, the panel carefully reviewed the employment opportunities identified by the WCB. The panel notes that many of the available positions required previous drafting experience or practical industry experience that the worker did not possess. As a result, although jobs may have existed within the occupational classification generally, the panel finds that the worker was not realistically competitive for many of those positions. This undermines the requirement under the Deeming Policy that the WCB demonstrate the worker is capable of competitively finding, competing for, obtaining and maintaining employment within the selected occupation.

The panel further accepts the worker’s evidence that the job search assistance provided was insufficient considering the worker’s lengthy absence from the labour market and lack of practical drafting experience. While the worker received the minimum job search period contemplated by the vocational rehabilitation plan, the panel finds that the unique circumstances of this claim, including the lengthy interruption of the rehabilitation process and the changed labour market conditions, warranted further vocational rehabilitation efforts before a deemed earning capacity was implemented. This approach is specifically contemplated by the Deeming Policy where circumstances have changed, and the anticipated earning capacity is lower than originally expected.

For these reasons, the panel finds that the WCB did not establish that the worker was capable of competitively obtaining employment within NOC 2253 or that the labour market conditions existing in May 2022 supported implementation of a deemed earning capacity. Accordingly, on a balance of probabilities, the panel finds it was not appropriate to implement a post-accident deemed earning capacity effective May 14, 2022.

The worker’s appeal 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 9th day of July, 2026