Worker v. Employer, 2025 CanLII 111682

20250038

REPRESENTED by:

HEARD by:

DATED:

FEBRUARY 25, 2025

ISSUES

The worker objects to the Case Manager (CM) decision dated November 10, 2022:

denying entitlement to benefits under the Chronic Mental Stress (CMS) policy, and
denying entitlement to benefits under the Traumatic Mental Stress (TMS) policy.

The worker seeks initial entitlement to benefits under either the TMS policy or the CMS policy.

BACKGROUND

On March 21 and 22, 2022, the worker was punched in the abdomen and arms by a Grade 4 student. The worker was working as an Educational Assistant (EA) at the time of injury, and she had worked with the employer for approximately 16 years. The incidents were reported to the employer immediately, and the worker stopped working. The worker sought medical attention from their primary care physician on April 4, 2022, and she was diagnosed with anxiety, depression, and Posttraumatic Stress Disorder (PTSD).

As per the Worker’s Report of Injury (Form 6), the worker submitted she experienced physical and psychological trauma as a result of the workplace incidents, and it triggered memories of numerous violent workplace incidents as well as memories of personal trauma.

The decision letter dated November 10, 2022, communicated there was no entitlement to benefits under the TMS policy or the CMS policy. The worker objected to the denial of benefit entitlement for her mental stress injury. The reconsideration letters dated July 17, 2023, and September 9, 2024, upheld the

decision to deny initial entitlement to benefits. The worker continued to object to the denial of benefit entitlement for a mental stress injury, and this is now the issue before the Appeals Services Division.

AUTHORITY

Workplace Safety and Insurance Act (WSIA), 1997, as amended

Operational Policy Manual

Published

15-02-03 Pre-existing Conditions

15-03-02 Traumatic Mental Stress 15-03-14 Chronic Mental Stress

November 3, 2014

January 2, 2018

ANALYSIS

I have carefully considered all of the available information, legislation, relevant operational policies and testimony in reaching this decision. For the reasons that follow, I find entitlement is in order under the TMS policy.

It should be noted my review and assessment does not include an all-inclusive summary of all the evidence submitted to the record, and there has been no attempt to reference every document in the claim file. I have included a summary of the pertinent evidence submitted to the record in relation to the issues in dispute.

Review of the Evidence

The worker testified she had worked as an EA since 2006. She indicated the job duties of an EA had changed over the years, citing when she had first started, her role was helping special needs students academically and later the focus became providing support for students with behavioural issues.

The Worker’s Report of Injury/Disease (Form 6), indicates the worker suffered physical and psychological trauma while supporting a student on March 21 and 22, 2022. The worker submitted the physical assault she endured 2 days in a row triggered memories of “numerous violent incidents from my past working as an Educational Assistant as well as personal trauma that was experienced.”

The worker indicated that since 2018 she had submitted over 40 violent incident reports and safety school forms combined. Prior to 2018, the worker did not keep track of the incidents, as the system had changed from a paper reporting system to an online reporting system. The worker advanced that throughout her career as an EA, she has been physically assaulted by students by punches, kicks, pushes, and she was spat on and bitten. The worker indicated she also witnessed numerous violent incidents, including a teacher being punched so hard in the head their glasses flew off and had sustained a concussion, a teacher who fractured their wrist trying to block a chair that was thrown at them, and witnessed classrooms being destroyed, and students being evacuated for their safety. The worker indicated she had seen other EAs be attacked physically and emotionally, citing verbal abuse was a daily occurrence at times.

The worker clarified she had completed 26 safety school reports between from 2018 to March 2022, which were in keeping with student-to-student violence. The worker indicated that while she was not the target of those incidents, she had dealt with the situations and felt the emotional impact of them. The

worker testified the safety school reports are not reported to the school board, rather they are filed at the school.

The worker advanced throughout her career as an EA she worked in many classrooms from Kindergarten to Grade 8, with students with many different exceptionalities and a wide range of physical, mental and emotional needs. The worker indicated that while working at her previous school, she experienced trauma after a student she had provided support to committed suicide, and she suffered emotionally following the murder of 2 students and their mother. She indicated there were times she had to wear a Kevlar® vest to protect herself from being stabbed, and she had experienced being kicked and punched by students in her efforts to protect other students from getting hurt. The worker submitted she felt she was able to cope with these traumatic events, along with the numerous other violent incidents she experienced, because she always felt supported by the staff and administration. The worker explained she felt listened to, acknowledged, and she felt part of a team that did exceptional work. The worker testified she felt she was valuable member of a team at her previous school, and this allowed her to cope and work through these difficult experiences. The worker explained the Principal at her previous school was very supportive and would tell the students “I’m not going to let you hurt my staff.” She indicated her strong support system allowed her to continue working, citing she did not miss time from work following any of those previous violent incidents.

The worker indicated she had started a new school in 2021 at a time she was grieving the loss of her stepfather. The worker was informed by the Principal at the new school that the students had a hard time trusting new educators, and the worker was determined to help these students. The worker spent most of her time working with one student whose behaviour was difficult to manage. She indicated the student engaged in a lot of problematic behaviours such as breaking things, smashing windows, jamming things in the paper shredder, and demonstrated violence toward other students. She indicated it was a difficult environment to work in because she did not feel she had the support of the Principal or administration.

The worker indicated she felt dismissed when she offered her perspective, and this left her feeling unheard.

March 21, 2022, Incident

The worker described a fellow EA asked the student to clean up the mess they had made (chunks of clay thrown around the room, broken pencils thrown on floor); and the student left the room. The worker arrived at the room when the student had just returned. The worker asked the student to clean up so they could proceed to gym class. The student begrudgingly cleaned up. Before leaving for gym class, the other EA indicated to the student they wanted to review expectations of working in the room. The worker explained the student immediately “exploded” and started punching the other EA in the abdomen. The worker yelled “STOP!” but the student continued to physically assault the other EA. The worker stepped in slightly between them and yelled “STOP!” again. The worker testified the other EA had recently undergone a mastectomy, which compelled the worker to step in. The student punched the worker multiple times in the abdomen and arms before they stopped. The Principal was called via walkie-talkie, and they came to the room. The worker testified the Principal treated the incident as though it was not a big deal, as the student did not receive any consequences for their actions, and they proceeded to gym class.

March 22, 2022, Incident

The worker was providing support to the same Grade 4 student in the classroom. They had just finished their free choice time and they were transitioning to work time. The student was refusing to do their work and they refused to get off the laptop. The worker indicated that in situations such as these, she had been instructed by the Principal to start a stopwatch on her phone, and when the student gets back on schedule, the time lost is deducted from their incentive time at the end of the day. The worker provided 2 verbal prompts to the student to get to work, and then backed off. The worker then contacted the Principal via walkie-talkie to let them know they started the stopwatch protocol, as the student was

refusing to work. The Principal replied they were in a meeting and appeared to be in agreement with the plan. After 15 minutes passed, the student closed the laptop and began walking between a row of students holding a tube-like accordion toy that made a loud noise. The student was activating the toy in other students’ ears while the teacher was teaching. At one point, the student gave the toy to a fellow student. The worker asked the other student for the toy, and they gave it to her. The worker walked out of the classroom with the toy with the intention of locking it in the empty classroom next door. While in the hallway, she noticed the student was watching her, and they suddenly charged toward her and screamed “give it back!” The worker advanced she did not have time to unlock the classroom door before the student started punching her hard in the abdomen, arms, and chest, while trying to grab the toy from her hand. The student pushed the worker to the point where she almost fell over. The worker was unable to access her walkie-talkie because she was trying to block punches with her arms, and she asked the classroom teacher to call the Principal. The worker released the toy to the student. The worker stated the student “got up into my face and shouted, ‘stupid b*tch’ at me.” The worker testified she felt unsafe because the student kept coming after her. The incident was reported to the Principal. The worker indicated she completely broke down crying and was shaking afterward. The Principal asked if the worker was ok, to which she replied, “I don’t know, I should be able to handle this because I have been through much worse.” The Principal advised the worker to take some time off. The worker submitted that these violent incidents brought back past violent incidents as well as previous personal traumatic events. The worker testified she had been sexually assaulted in her 20s. She explained she did not deal with the trauma of that experience and blocked it out of her mind. Through tearful testimony the worker explained she was triggered by these violent incidents to the point where her past trauma “all came up again.”

The worker attempted to return to work on March 24, 2022, at which time the student offered an insincere apology. The worker told the student she was not mad at them, which was met with rolling eyes and a sigh of disinterest. The worker indicated she was fine for a few minutes, but then left the room because she fell apart emotionally, and she was unable to cope. The worker went home and did not return to work.

Employer Position

The Employer’s Report of Injury (Form 7), indicated the worker reported experiencing mental stress related to (2) incidents that occurred on March 21 and 22, 2022, while working in the capacity of an EA. The employer advanced the worker’s role is provide support to students with special needs, including instructing and encouraging proper student behaviour and coping with extreme behaviour disorders. The worker’s assignment included working with the Grade 4 student for half the day, and for intermittent periods throughout the day. The employer representative submitted the Grade 4 student would outline potential signs of escalated behaviour, possible triggers and interventions for escalated student behaviours. They also submitted the worker had access to a walkie-talkie to call for support if needed.

The employer indicated they appreciated assisting and supporting a student with special needs is stressful and difficult; however, these are part of the normal job expectations of an EA. The employer representative acknowledged that while the student demonstrated unpredictable and escalated behaviours, safety measures were in place as per the Behavioural Safety Plan, and they are the position entitlement criteria would not be met under WSIB policies.

The employer representative submitted a report dated July 29, 2022, indicating the following:

The student was in Grade 4, and was of average size for their age group, but slim.
The student was on a Behavioural Safety Plan. The safety plan served as a crisis-response plan that outlines the roles and responsibilities of the staff in dealing with specific problem behaviours. The components of a student safety plan include a description of the observable behaviour concerns, triggers and antecedents, prevention and intervention strategies, communication procedures, and emergency communication procedures.
The Principal indicated the student was not in crisis and they were using interventions on the March 22, 2022, incident.
The worker had been at the school since September 2021. The worker had reported a total of (3) violent incidents related to the student:

o October 29, 2021 – two handed push, no physical injuries sustained

o March 21, 2022 – student became aggressive with a staff member, and the worker intervened, and the student hit her on the arms, chest and sides.

o March 22, 2022 – the worker removed a toy from the student when he became aggressive. He pushed her, used a curse word, and hit her again in the arms, chest and side.

The Principal reported that none of the above incidents resulted in any physical injuries to the worker.

Correspondence from the Durham District School Board (DDSB) dated November 3, 2022, indicated the worker had reported (8) violent incidents from 2018 to March 2022:

2018 to January 2020 – 4 incidents at former school – Kindergarten student hit to arms, toy thrown in face, hit to stomach
March 2020 – 1 incident at former school – Grade 2 student hit to arms
October 2021 to March 2022 – 3 incidents at current school – Grade 4 student push to chest, hit to arms and chest, used a curse word

It was noted that of the 8 incidents reported, none resulted in a WSIB reportable physical injury. The 2 most recent incidents (March 21 and 22, 2022) were reported as a mental stress injury.

Medical Evidence

Following the March 2022 incidents, the worker commenced counselling through an Employee Assistance Program (EAP) provider, which she did not find helpful. The worker sought medical attention from her family doctor because she wanted to access better therapy.

On April 4, 2022, Dr. T. Varathalingam, the worker’s primary care physician, assessed the worker and completed a Health Professional’s Report (Form 8). The report indicated the worker was attacked by a student on March 21 and 22, 2022, and she was diagnosed with PTSD, anxiety and depression. It was noted the worker had a history of panic attacks. The worker’s antidepressant medication was increased. The chart note for April 4, 2022, visit indicated the worker was attacked by a student wherein she was punched in the stomach and arms. The worker presented as anxious, tearful, and unable to cope. Dr.

Varathalingam indicated the worker had dealt with worse things in her past, including a rape in her early 20s, that she had never dealt with. The worker had been taking citalopram 20mg, and her dose was increased to 30mg.

The worker testified she had been taking antidepressants since the sexual assault in her 20s. She indicated she never had issues with working or managing stressful situations whatsoever. The worker described her general health prior to the March 2022 incidents was good, citing she was functioning and coping well. The worker explained she had never participated in any type of counselling or therapy up to that point.

A chart note from Dr. Varathalingam dated August 16, 2022, indicated the worker was still feeling anxious and she did not feel ready to return to work. It was noted the worker had sprained her knee and she was using crutches. Dr. Varathalingam indicated the worker’s knee injury exacerbated her anxiety. Dr.

Varathalingam’s chart note dated December 13, 2022, indicated the worker osteoarthritis (OA) of her knee and back. The worker’s main issues were noted to be anxiety and depression.

Dr. Varathalingam completed an Attending Physician’s Statement for the worker’s Long Term Disability claim dated December 17, 2022. The worker’s primary diagnoses were anxiety and depression. The worker’s secondary diagnosis was arthritis and multiple joint pain. The worker was noted to be taking citalopram and she was awaiting a rheumatology assessment for multiple joint pain. The worker’s symptoms included low mood, anxiousness, fatigue, insomnia, low energy, reduced concentration, reduced appetite, multiple joint pain severely affecting hands, knee and spine. It was noted the worker had a limited walking ability due to pain. The worker testified she had injured her knee in the summer of 2022, and she was subsequently diagnosed with OA. The worker indicated her multiple joint pain never presented a barrier in her being able to carry her job duties prior to March 2022.

The worker testified she experienced a severe knee sprain in the summer of 2022, and she was diagnosed with moderate osteoarthritis (OA) in both knees and degenerative disc disease (DDD) in her spine. She indicated she had difficulty walking far distances and negotiating stairs. The worker advanced her physical impairments have added to her anxiety.

K. Garrity, Registered Psychotherapist, submitted a report dated April 4, 2023. K. Garrity indicated the worker began receiving support February 2023 following an assault that occurred at work. The worker had been diagnosed with PTSD and she was struggling with anxiety symptoms, depressive symptoms and panic related issues. The worker advanced she was in a constant state of panic, experienced intrusive thoughts, and she was unable to sleep. The worker experienced high anxiety about leaving her home. The worker appeared to be guilt ridden and ashamed she was injured at work. She indicated her shame and confusion about the incident were increased by the way people spoke to her about the incident and the comments they made to her. The report indicated the worker had a past history of being

assaulted, and she endorsed having an ongoing fear of men. It was noted the worker also had arthritis in her disc and chronic pain on top of the emotional trauma from the assault. K. Garrity indicated she was attending weekly sessions for cognitive behavioural therapy (CBT) and dialectical behavioural therapy (DBT). K. Garrity submitted a report dated April 13, 2023, indicating the worker had been diagnosed with PTSD, anxiety and depression by Dr. Varathalingam. The worker had been previously diagnosed with anxiety 20 years ago as she was experiencing panic attacks; however, she had managed this condition with medication without issue.

Dr. Varathalingam submitted a report dated May 8, 2023, indicating the worker was suffering from PTSD and Generalized Anxiety Disorder (GAD) due to an assault that took place at work in March 2022. The worker had not been able to work until such time, and they continued to suffer from low mood, increased anxiety and stress, poor sleep, reduced energy and concentration as well as social anxiety to the point she is afraid to leave her house. The report indicated the worker experienced trauma in her past at the age of 20, and the incidents that took place in March 2022 triggered those emotions, which contributed to her symptom presentation and made it difficult for her to cope. The worker was taking citalopram, and she was seeing a therapist every 2 weeks. Dr. Varathalingam indicated a referral was made for the worker to be assessed at Facility A; however, the wait time was noted to be 6 to 12 months.

On January 5, 2024, Dr. E. Bradley, Psychiatrist, and C. Mueller, Nurse Practitioner, assessed the worker at Facility A. The report indicated the worker had been off work and in receipt of long-term disability (LTD) benefits since the workplace incidents in March 2022. The worker indicated she was struggling with panic, and she had trouble leaving her home due to anxiety. It was noted the worker was previously very social and they now avoided going out with friends and did not attend social gatherings. The worker endorsed having flashbacks, nightmares and trouble sleeping. The report indicated the worker endorsed having nightmares of both the prior sexual assault and the more recent violent incidents at work. The worker was noted to be seeing a psychotherapist, and they were continuing to take 30mg of citalopram. With respect to diagnostic impression, the report states, in part:

[The worker] was seen in Facility A on January 5, 2024. She has been experiencing symptoms of anxiety, depression and panic since enduring a workplace related assault in March 2022. She has been very limited in her ability to leave her home following this incident and is experiencing insomnia and intrusive symptoms. This assault occurs on a background of a prior assault in her 20s. Based on her assessment, she meets criteria for post traumatic stress disorder and will be referred for Cognitive Processing Therapy with Ontario Structured Psychotherapy. She also meets criteria for Major Depressive Disorder and Panic Disorder. However, the depression and panic may likely be secondary to the PTSD and with treatment of post traumatic stress such symptoms will hopefully remit.

Assessment of the Evidence

In order to decide this appeal, I must determine if the worker’s situation falls within the legislative and policy requirements for acceptance of a mental stress injury. The appropriate starting point for this discussion is section 13 of the WSIA, which governs entitlement to mental stress injuries. This section, as amended on January 1, 2018, notes the following:

Insured injuries

13(1) A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan.

Mental stress

(4) Subject to subsection (5), a worker is entitled to benefits under the insurance plan for chronic or traumatic mental stress arising out of and in the course of the worker’s employment.

Personal injury

(4.1) The worker is entitled to benefits under the insurance plan as if the mental stress were a personal injury by accident.

Same, exception

(5) A worker is not entitled to benefits for mental stress caused by decisions or actions of the worker’s employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.

Operational policies 15-03-02 and 15-03-14 state that for entitlement to be considered, there must be a diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM) which may include, but is not limited to,

acute stress disorder
posttraumatic stress disorder
adjustment disorder, or
an anxiety or depressive disorder.

In review of the medical reporting submitted to the record, I acknowledge the worker was diagnosed with PTSD, anxiety and depression by Dr. Varathalingam. As such, I find the worker has met the threshold requirement of having an appropriately diagnosed mental stress disorder by a regulated health professional.

1. Traumatic Mental Stress

Operational policy 15-03-02 states, in part:

In order to consider entitlement for mental stress related to one or more traumatic events, the WSIB decision-maker must identify that one or more traumatic events occurred. A traumatic event may be a result of a criminal act or a horrific accident, and may involve actual or threatened death or serious harm against the worker, a co-worker, a worker’s family member, or others. In most cases a traumatic event will be sudden and unexpected.

In all cases, the event(s) must arise out of and occur in the course of the employment, and be

clearly and precisely identifiable, and
objectively traumatic.

The policy further states, in part:

Cumulative effect

Due to the nature of their occupation, some workers, over a period of time, may be exposed to multiple traumatic events. If a worker experiences traumatic mental stress because of the most recent traumatic event, entitlement may be in order even if the worker may experience these traumatic events as part of the employment and was able to tolerate the past traumatic events. A final reaction to a series of traumatic events is considered to be the cumulative effect.

The WSIB recognizes that each traumatic event in a series of events may affect a worker psychologically. This is true even if the worker does not show the effects until the most recent event. As a result, entitlement may be accepted because of the cumulative effect, even if the last event is not the most traumatic.

The evidence supports the worker had worked as an EA for approximately 16 years, and throughout her career she experienced and witnessed numerous traumatic events, including but not limited to, violent behaviour toward herself, other staff and students, verbal abuse, suicide of a student, the murder of 2 students and their mother, and the most recent physical attacks she endured on March 21 and 22, 2022.

I find the violent incidents that occurred on March 21 and 22, 2022 are clearly and precisely identifiable and are objectively traumatic given she was the object of physical violence wherein her personal safety was at risk. I have placed significant weight on the fact the worker experienced an immediate emotional breakdown following the March 22, 2022, incident and promptly sought counselling support through EAP followed by medical attention soon thereafter. I accept the March 2022 incidents more likely than not triggered the worker’s emotional breakdown leading to the PTSD diagnosis. Put another way, I am persuaded by the immediate temporal nexus between the violent workplace incidents and the ensuing mental stress injury.

The worker representative submitted the March 2022 incidents were “the straw that broke the camel’s back,” in that the worker was no longer able to manage and cope from a psychological perspective because she had experienced the cumulative effect of her past traumatic experiences. I agree with the worker representative on this point. I accept the worker likely experienced a cumulative effect of having been exposed to multiple traumatic events throughout her career, as the March 2022 incidents appear to

be the impetus for her psychological decompensation and appears to have triggered her past trauma.

For all intents and purposes, the evidence supports the worker has a pre-existing mental health condition. As enumerated in operational policy 15-02-03:

A pre-existing condition is any condition that existed prior to a work-related injury/disease, and may include injuries, diseases, degenerative conditions, and psychiatric conditions.

The existence of the condition must be confirmed by pre-injury or post-injury clinical evidence and may have been evident prior to the occurrence of the work-related injury/disease or it may become evident afterwards.

The evidence before me supports the worker was taking citalopram for panic attacks, and she had been taking this medication for many years following a remote sexual assault she experienced in her 20s. The worker submitted she was able to function in her daily life and work without any issues prior to the workplace incidents.

In review of the facts and circumstances of this case, I find the presence of the worker’s pre-existing mental health condition would not negate her entitlement to benefits under this claim. As per operational policy 15-02-03:

Consistent with the “thin skull” doctrine, the fact that a worker may have a pre-existing condition that could increase susceptibility to injury/disease is not considered during the initial determination of entitlement in a claim. In such cases, workers are compensated for the work-related injury/disease and the claim is not denied due to the existence of a pre- existing condition.

I find the presence of the worker’s pre-existing mental health condition did not overwhelm the impact of the cumulative effect of the traumatic workplace events. In my view, the March 2022 incidents were the clear catalyst for the worker’s psychological decline. While it could be argued the worker is a “thin skulled” individual, in that she may have been more vulnerable to developing a psychological impairment given her past personal trauma, the policy supports entitlement would not denied on this basis. I find the March 2022 workplace incidents significantly contributed to the development of the worker’s PTSD, anxiety and depression, which I find are in keeping with a cumulative effect of the numerous traumatic events she experienced throughout her career.

In summation, I find the worker is entitled to benefits under the TMS policy. The worker was diagnosed with PTSD, anxiety, and depression by Dr. Varathalingam following the March 2022 workplace incidents wherein the worker was the object of physical violence at the hands of a Grade 4 student. I accept the worker’s psychological diagnoses are clearly and directly related to the cumulative effect of being exposed to multiple traumatic workplace incidents throughout her career as an EA. I find the impetus for the worker’s psychological decompensation appears to be the March 2022 workplace incidents. This finding is supported by the fact that immediately following the March 22, 2022, incident, the worker experienced an immediate emotional breakdown, and she could not continue working. I find the March 2022 incidents are clearly and precisely identifiable and I accept they are objectively traumatic with regard for the cumulative effect of having endured similar and worse traumatic events throughout her career. I find the worker’s pre-existing psychological condition did not overwhelm her mental stress injury, as the evidence supports she was functioning well prior to March 2022 incidents. I find the presence of her pre-existing mental health condition does not negate her entitlement to benefits under this claim.

Based on the foregoing, I find entitlement to benefits is in order under the TMS policy.

2. Chronic Mental Stress

For the reasons set out above in the previous section of this decision, I find that the worker satisfies the entitlement criteria enumerated in the TMS policy. Accordingly, it is not necessary to deal with the issue of whether the worker’s case is compensable under the legislation and CMS policy.

CONCLUSION

I conclude initial entitlement is in order under the TMS policy.

The nature and duration of benefits flowing from this decision will be returned to the WSIB for further adjudication, subject to the usual rights of appeal.

The worker’s objection is allowed.

DATED FEBRUARY 25, 2025

L. Mansueti

Appeals Resolution Officer Appeals Services Division