Worker v. Employer, 2025 CanLII 144148

20260012

REPRESENTED by:

VIDEOCONFERENCE – APRIL 15, 2025

HEARD by:

DATED:

APRIL 28, 2025

ISSUE

The worker is objecting to the March 15, 2023, decision of the Case Manger denying initial entitlement to traumatic mental stress (TMS) and chronic mental stress (CMS).

BACKGROUND

Two claims for mental stress injuries were established for the worker in August and September 2022. While only one of the claims is the subject this appeal, it is necessary for me to provide some information on both in order to place the issue before me in context.

Claim A was registered and established with an accident date of August 24, 2022, after the Operating Area received a Health Professional’s Report for Occupational Mental Stress (Form CMS 8) dated September 8, 2022, from the worker’s family doctor. The worker was then 59-years of age and had worked for the employer as an educational assistant since September 1, 1998. The Form CMS 8 had the diagnoses of anxiety and panic attacks and indicated the conditions resulted from the stress of having no fixed work schedule, working with high needs students, and worry about physical injury. After speaking with the worker about the Form CMS 8, the Case Manager denied initial entitlement to TMS and CMS in a September 12, 2022, decision. They denied entitlement to CMS because they could not identify a substantial workplace stressor. TMS was denied because the stressors identified by the worker were not considered objectively traumatic in nature.

The present claim (Claim B) was subsequently registered and established with an accident date of September 8, 2022. The family doctor completed a second Form CMS 8 dated December 1, 2022, that had the diagnosis of post-traumatic stress disorder (PTSD). The Form CMS 8 stated the worker had been struck in the nose and hit with a skipping rope by students.

The worker later submitted a Worker’s Report of Injury (Form 6) and a written statement describing multiple prior WSIB claims involving physical injuries she had sustained and interactions with students. In a decision dated March 15, 2023, the Case Manager denied initial entitlement to TMS and CMS.

With respect to TMS, the Case Manager determined that the interactions with students the worker described were part of her regular job duties and not unexpected events. The Case Manager also found that the behaviour of students with developmental and physical challenges which the worker had been exposed to could not be viewed as objectively traumatic in nature. As a result, the Case Manager denied entitlement to TMS. In regard to CMS the Case Manger determined the student behaviours to which the worker had been exposed did not rise to the level of a substantial workplace stressor.

The worker objected to the March 15, 2023 decision. The Case Manager later reconsidered and upheld the initial entitlement decision on June 9, 2023, and September 20, 2024, after receiving additional clinical information from a psychiatrist that confirmed the diagnosis of PTSD. Since initial entitlement for TMS and CMS remained denied after the reconsiderations, the matter was forwarded to the Appeals Services Division for review.

AUTHORITY

Operational Policy Manual

Published

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

January 2, 2018

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons explained below, I find the worker has initial entitlement to traumatic mental stress (TMS).

The Worker’s Position and Remedy Sought

The worker representative argued that over the duration of the worker’s career with the employer as an educational assistant, she suffered numerous physical injuries and a psychological injury from working with students. The representative noted that special needs students, in particular, can sometimes act out violently and cause injuries. She submitted the worker had been exposed to a number of workplace incidents over the years that were objectively traumatic.

The representative indicated that in May 2022 the worker was punched in the face by a student which triggered anxiety and nightmares. She submitted that by September 2022, the anxiety worsened, and the worker developed a fear work of working with overly aggressive students that she could not control.

The representative submitted the worker resides in the same community as many of the students which contributed to a worsening of her psychological symptoms.

The representative argued that when considering the evidence and the merits and justice of the case, the main contributing factor that resulted in resulted in a psychological injury was the worker’s exposure to highly abusive students and the fear of being attacked. She requested that the March 15, 2023, decision be overturned, and the worker be granted entitlement to CMS or TMS.

The Employer’s Position

The employer representative submitted that when the initial claim (Claim A) was filed, it was filed because of employment related issues and the worker’s perception of not being adequately accommodated for physical restrictions. She indicated the employer agrees with the Case Manager’s decision and argued that the claim does not meet the threshold for entitlement under either the TMS or CMS policies.

With respect to TMS, the employer representative argued initial entitlement cannot succeed because the incidents reported by the worker in the case file were not objectively traumatic events. In regard to CMS the representative submitted that working with special needs students with challenging behaviours is expected in the educational assistant job. She submitted the incidents described by the worker were not excessive in intensity and/or duration in comparison to the normal pressures and tensions experienced by workers in similar circumstances.

The representative argued that the mental stress which presented in September 2022 was focused on the worker’s concerns with respect to the employer’s management decisions relating to accommodations for prior claims and job assignments.

The representative indicated that while the worker provided information concerning 14 workplace incidents that had occurred during her tenure with the employer, a large number involved chance events that were minor in nature. She submitted this included a May 2022 incident where the worker was assessed at a hospital for a minor strike to the arm and nose. The representative also submitted that many of the incidents involved working with special needs students, whose actions were not intended to cause harm. She argued the nature of the incidents reported do not satisfy the TMS policy requirement with respect to a cumulative exposure to multiple traumatic events.

The employer representative argued more weight should be placed on the evidence contemporaneous to the time the worker stopped working. The representative submitted the sole reason the worker stopped working was because of the employer’s managerial decisions which are not considered substantial stressors or objective traumatic events under the CMS and TMS policies.

The Worker’s Testimony

The worker described her general job duties as an educational assistant which involved helping students with reading, speech and language and assisting them with mobility issues. She testified that she began working as an educational assistant in 1994 and regularly worked with students with multiple disabilities.

The worker testified that in November 2000 she was thrown into a table by a student which caused a significant injury. During the period from 2000 to 2004 she also worked with students with severe disabilities, and some of them would bite, pinch, kick and punch educational staff. During this period, she got punched and hit occasionally. During 2004 and 2005 she transferred to a different school because her chiropractor told her she needed to stop working with high school kids. The worker testified that she was assigned to work with students by the school administration. She was often assigned to work with challenging students because she would remain calm when behaviours escalated.

During the period from 2005 to 2020, the worker moved from working at high schools to elementary schools. She testified that in 2019 she worked with a student that repeatedly tried to stab her. The student also threatened to sexually assault her. She stated that students with special needs are often unpredictable with behavioural extremes. The worker also confirmed that she understood that special needs students do not have regular consequences for their behaviour.

In 2022 the worker testified that she had to work with a special needs student that required in-school learning during the Covid-19 pandemic. She stated the student would throw things across the room, get into her face, and try to slam her into lockers. She described the student as large and weighing approximately 250 pounds.

The worker testified that during another incident in May 2022, she was trying to separate two students when one of them punched her in the arm and the face. The worker described the student as female, 14-years old, approximately 5’10” tall and weighing around 140 pounds. The worker testified the student

that punched her in the face had a history of violence. She indicated the student was suspended because of the incident but was subsequently allowed to attend a high school orientation day in June 2022 which the worker did not expect.

During the period from June to September 2022, the worker testified that she went to see her doctor. Her doctor told her she had high blood pressure and he wanted to monitor it. The doctor set up another appointment to see the worker in September 2022. She indicated that during the summer months she could not relax and kept thinking about her eventual return to work with special needs students.

When questioned by her representative whether being punched in the face was the “straw that broke the camel’s back” the worker testified that it was. The worker testified that she couldn’t function normally after she was punched in the face and by August 2022, she began having panic attacks as she was worried about what would happen when she returned to school.

The worker testified that when she returned to school in September 2022, she was assigned to work with the same 250-pound student she had worked with earlier in the year. She explained she was informed she had to work with the student for the entire day when normally, staff were not expected to work with the student for more than three hours. After working for a couple of days, she returned to her family doctor and her blood pressure was high. He told her she could not return to work.

The worker explained she could not sleep and could not even walk past the school without having a panic attack. Her doctor prescribed Alprazolam and she went to see a mental health crisis team who referred her to a psychiatrist. The worker described the psychological and psychiatric treatment she received and confirmed she retired from the employer on March 31, 2025.

Under cross questioning, the worker testified that staff assignments are usually communicated at the end of August, but she found out about her fall semester 2022 assignment on September 4, 2022. The worker confirmed that as an educational assistant, she regularly received behavioural de-escalation training.

Also under cross questioning, the worker testified that she lost approximately 65 pounds over the summer months of 2022. She also stated her hair was falling out. She indicated she was not concerned about the weight loss but mentioned it to her doctor in September 2022. The worker testified there were no other significant non-work-related stressors that occurred during the summer months of 2022.

Entitlement to Traumatic Mental Stress

Policy 15-03-02 (Traumatic Mental Stress) states that a worker is entitled to benefits for TMS arising out of and in the course of employment. The policy describes specific criteria that must be met for a worker to be entitled to benefits for a TMS injury.

The worker must have direct exposure to one or more objectively traumatic events at work. This means that the worker must have suffered or witnessed the work-related traumatic event(s) firsthand or heard the work-related traumatic event(s) firsthand through direct contact with the traumatized individuals.

The event or events must be both clearly and precisely identifiable and objectively traumatic. Clearly and precisely identifiable means that the event(s) can be established through information or knowledge of the event(s) provided by co-workers, supervisory staff, or others. The term “objectively traumatic” generally means that the event must be traumatic when considered not from the worker’s unique perspective and experience, but from a perspective independent of the worker’s perception of the event, personal feelings, and experiences. The policy provides examples of objectively traumatic events such as witnessing a fatality, being the object of physical violence, being the object of threats of physical violence where the worker believes the threats are serious and harmful to self or others (e.g., bomb threats or confronted with a weapon), or being the object of workplace harassment that involves threats of physical violence or being placed in a life threatening or potentially life-threatening situation.

Policy 15-03-02 (Traumatic Mental Stress) also states that workers are not entitled to benefits for TMS caused by decisions or actions of the employer relating to a worker’s employment such as, demotions, transfers, discipline, termination, or changes in work hours, job assignments and productivity expectations.

The policy states that due to the nature of their occupation, some workers, over a period, may be exposed to multiple traumatic events. If a worker experiences TMS because of the most recent traumatic event, entitlement may be in order even if the worker experiences these traumatic events as part of the employment and was able to tolerate 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 of traumatic events, even if the last event is not the most traumatic. In considering entitlement for the cumulative effect, decision-makers rely on clinical and other information supporting those multiple objectively traumatic events led to the worker’s current psychological state. Also, there may be evidence showing that each event had some effect or life disruption on the worker, even if the worker was not functionally impaired by the effect or life disruption.

In all cases, a decision-maker must be satisfied, on a balance of probabilities, that the traumatic event, or the cumulative effect of a series of objectively traumatic events arose out of and during the worker’s employment and caused, or significantly contributed to, an appropriately diagnosed mental stress injury. An appropriately diagnosed mental stress injury means that the diagnosed psychological condition is made by a regulated health professional in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM).

After reviewing the evidence and hearing the worker’s testimony, I am satisfied that the worker was exposed to several traumatic events over the course of her employment with the employer. The record included a list compiled by the worker of workplace accidents (including claim numbers) and physical injuries she sustained between 2000 and 2022. I note that four of the accidents (November 20, 2000, February 17, 2009, February 8, 2018, and May 13, 2022) involved the worker being the object of physical violence.

The employer submitted none of the events reported by the worker were objectively traumatic, however, I disagree. The TMS policy lists being the object of physical violence as an example of a traumatic event. The policy does not stipulate that being the object of physical violence is not objectively traumatic if the worker is employed in an occupation where they may be routinely exposed to physical violence or have special training in dealing with violence. As the worker was exposed to several incidents where she was the object of physical violence, I am satisfied that one or more objectively traumatic events occurred.

With respect to the most recent event that occurred in May 2022, the worker testified she was punched in the arm and face by a 14-year-old student with special needs and a history of violent behaviour, whom she described as approximately 5’10” tall and weighing approximately 140 pounds. I found the worker’s testimony to be consistent with a May 13, 2022, emergency report that described the worker receiving medical attention after being punched in the nose by a student at school. In my view, being punched in the face by a 14-year-old student with special needs is objectively traumatic in nature, regardless of whether the worker is an educational assistant and accustomed to working with special needs children.

Having accepted that the worker was exposed to one or more objectively traumatic events during the course of her employment, I next considered whether the exposure caused, or contributed significantly to an appropriately diagnosed mental stress injury. I find on a balance of probabilities that the traumatic events to which the worker had been exposed, in particular the May 2022 incident of being punched in the face by a student contributed significantly to the diagnosis of PTSD.

The difficulty in this case is that Dr. Singh (the worker’s family doctor) completed two separate Form CMS8s. In the September 8, 2022, Form CMS8 he diagnosed anxiety and panic attacks and indicated his understanding of the work-related situation that resulted in the psychological condition was the stress of having no fixed work schedule, working with high needs students and worry about physical injury.

While establishing a work schedule and assigning work with specific high needs students would be employment related decisions that the TMS policy states do not warrant entitlement, I find it reasonable that the worker would experience anxiety and panic attacks given what had transpired near the end of the spring term in May 2022. The worker testified in a straightforward and credible manner at the hearing, and I accept her testimony that she was worried about what would happen when she returned to school in the fall.

In a November 3, 2022, chart note Dr. Singh documented that the worker’s anxiety and panic attacks continued. The worker expressed concerns with PTSD and advised Dr. Singh she experienced flashbacks when thinking about the incident where she was punched in the face. Dr. Singh questioned the diagnosis of PTSD, prescribed the worker medication for nightmares, and referred the worker to a psychiatrist. He subsequently completed the second Form CMS8 containing the diagnosis of PTSD. He also indicated the worker had co-existing severe anxiety related to being hit again and increased workload.

The worker was ultimately examined by Dr. Anago (psychiatrist) on December 5, 2022. In the report coinciding with his assessment, Dr. Anago indicated the worker recalled the November 2000 incident of being thrown into a table and numerous incidents thereafter of being punched, hit or having things thrown at her. He noted the 2022 incident where the worker was punched in the face and stopped working in September 2022. Dr. Anago also documented that the worker felt unsupported by the employer.

When providing his diagnostic impression, Dr. Anago indicated that the worker had suffered multiple traumatic events over the years from children who may hit her, throw things at her, and on one occasion, threw her into a table. He indicated the worker demonstrated increased anxiety, avoidance behaviours when thinking about school and the traumas she was exposed to. He confirmed the worker had hypervigilance, panic attacks, a startle response and flashbacks. The psychiatrist’s diagnostic opinion was that the worker had PTSD and an unspecified depressive disorder. PTSD is a DSM diagnosis.

After the initial psychiatric evaluation, Dr. Anago re-evaluated the worker on December 14, 2022, and March 6, 2023, and May 10, 2023. His reports describe nightmares, panic attacks and avoidant behaviour. He continued to endorse the diagnosis of PTSD in relation to traumatic experiences of working with students. In the May 10, 2023, report, Dr. Anago indicated the PTSD symptoms remained present.

I place the most weight on the reporting from Dr. Anago. He is a psychiatrist and a specialist in the field of mental health. In my view, as a psychiatrist, Dr. Anago was well positioned to provide a medical opinion on the cause of the worker’s PTSD. In his December 5, 2022, report Dr. Anago noted the worker had been exposed to traumatic events and specifically cited the worker being punched in the face in 2022 before she stopped working. There were no non-work-related traumatic exposures referenced in his reports. I acknowledge Dr. Anago’s initial report indicates the worker felt unsupported by the employer, which may relate to the work schedule and assignments documented by Dr. Singh. However, the question is whether the traumatic work exposures as an educational assistant made a significant contribution to the worker’s mental stress injury. As Dr. Anago related the PTSD diagnosis to traumatic exposures and specifically cited being punched in the face, I find it more probable than not that the clearly and precisely identifiable objectively traumatic events, and specifically the May 13, 2022, incident was the culminating event that contributed significantly to the PTSD diagnosis.

Therefore, I find on a balance of probabilities that the worker meets the entitlement criteria for TMS under Policy 15-03-02 (Traumatic Mental Stress). In my view, the evidence establishes that the worker has a mental stress condition arising out of and in the course of her employment as an educational assistant that resulted from objectively traumatic, clearly identifiable events. As such, I find the worker has initial entitlement to TMS. A determination on the nature and duration of any benefits flowing from this decision is remitted to the Operating Area for further adjudication, subject to the usual rights of appeal.

Since I find the worker meets the criteria for entitlement to PTSD under Policy 15-03-02 (Traumatic Mental Stress) it is not necessary for me to consider entitlement under Policy 15-03-14 (Chronic Mental Stress).

CONCLUSION

I conclude the following:

The worker has initial entitlement for PTSD under Policy 15-03-02 (Traumatic Mental Stress).

The nature and duration of any benefits flowing from this decision, is remitted to the Operating Area for further adjudication, subject to the usual rights of appeal.

The worker’s objection is allowed.

DATED APRIL 28, 2025

C. Goegan

Appeals Resolution Officer Appeals Services Division

Copy (mail): Worker

Worker Representative

Employer

Employer Representative```