Frequent assaults by special needs student were traumatic and not an expected part of the job: Tribunal
Physical abuse from a special needs student is beyond what is expected in the job of an educational assistant who is entitled to benefits for mental stress, the Ontario Workplace Safety and Insurance Appeals Tribunal has ruled.
The worker was hired by an Ontario school board in 2001 and became an educational assistant (EA) for “intensive support for low incidence-high risk needs (developmental disabilities, physical disabilities” a year later. This category of EA qualified the worker to assist students with physical disabilities requiring assistive devices such as feeding tubes or catheters.
The worker was placed in a special education class with six students and one teacher around 2006. The classed included some violent students, including one who was moved to another school and one who remained in the class. The latter student sometimes acted violently towards students and adults, including scratching, kicking and “spraying snot,” according to the worker. Sometimes weeks went by without any violent behaviour, so it was considered manageable.
However, in January 2011, the student — who was eight years old at the time — began targeting the worker and going after her frequently. The worker claimed the student did something all day, every day, including:
• throwing objects at the worker, hitting her in the face
• biting her
• hitting her in the back to the point where she couldn’t turn her back on the student
• punching her in the breast, arms, abdomen, and face
• slapping her in the face
• chasing her to kick or punch her.
These incidents happened in the classroom where there were other children with special needs. The student’s behaviour was difficult to manage because there was usually no warning, unlike other students who would usually give some sign they were getting upset. In addition, the worker often couldn’t prepare for the attacks because she was helping the other students in the class, which was her job instead of the teacher’s.
The worker reported her concerns to the school’s principal, who advised her to take stress days when things seemed overwhelming. She was also given protective gloves. When she met with the administration — including the head of special education — they told her they didn’t know what to do.
Bad week led to worker’s meltdown
The worker took stress days occasionally, but they didn’t help matters at work. In mid-April 2011, the student attacked her as she came out of a washroom with another child she was helping. The worker hadn’t had a chance to put her gloves back on and the attack caused a long gash on her left hand that became infected.
That same week, the class went on a field trip. The troublesome student couldn’t deal with the trip, so the teacher asked the worker to bring him back to the school in a taxicab. However, the student attacked the worker during the entire ride, to the point where the taxi driver pulled the car over and told the student to “stop hitting the lady.”
The day after the field trip, the regular teacher was away and the supply teacher had no experience, so the worker had to deal with the student's attacks all day. On the drive home that day, the worker claimed she began to feel anxious and upset, leading to a “meltdown” in the car. She said her chest was tight and her head felt like it was going to “explode.” The worker checked her blood pressure at a drug store and found it was very high, so she called her doctor. The doctor increased her blood pressure medication and referred her to the Centre for Addiction and Mental Health, where she was diagnosed with depression and told to seek counselling and take time off work.
The worker filed a workers compensation claim for mental stress resulting from the escalation of the student’s behaviour from January to April 1, 2011. She returned to work in May 2011 after receiving counselling, but continued to take medication for anxiety and depression. She was also accommodated by not being left alone with the violent student.
An Appeals Resolution Officer (ARO) found the worker was not entitled to benefits for mental stress because the physical abuse from the student was expected in the course of her job duties as a special needs educational assistant and was not a single traumatic event.
The Ontario Workplace Safety and Insurance Board policy manual states that benefits are only payable to workers who have an acute reaction — “a significant or severe reaction by the worker to the work-related traumatic event that results in a psychiatric/psychological response” — and, in the case of a delayed onset reaction, it must be “clear and convincing that the onset is due to a sudden and unexpected traumatic event, which arose out of and in the course of employment.” Mental stress that develops gradually over time from “general workplace conditions” is specifically excluded for benefits in the policy manual.
The worker appealed to the Ontario Workplace Safety and Insurance Appeals Tribunal.
The tribunal disagreed with the ARO on both the expectation of the physical abuse and acute reaction of the worker. It found the extreme incidents in the same week — the attack that injured the worker’s hand, the violent taxi ride, and the all-day struggle in the absence of the teacher — led to a specific acute reaction — the worker’s meltdown in her car. This meltdown led to her diagnosis of depression and the necessity of going on medication, said the tribunal.
The medical evidence showed that the worker had a “gradual build-up of stress at work” due to the student’s escalating behaviour over three months — which wouldn’t in itself qualify for benefits — but the worker’s meltdown was triggered by the three events in the same week, which were sufficient to qualify as a traumatic event, said the tribunal.
“The claim meets the requirement of an ‘acute reaction,’ because the evidence suggests that the worker would have been able to continue to manage to work with the occasional stress day, but for the increased violent behaviour in January to April 2011 and the three incidents of early April 2011,” said the tribunal. “The worker’s (report of injury form) supports that her need for medical attention was triggered by the three events in early April 2011, which occurred in the context of escalating violence in the classroom from January to April 2011.”
Assaults were beyond what should be expected in job
The tribunal acknowledged that the worker’s job as an EA for special needs students “entailed dealing with difficult students with the potential for physical interactions.” However, her job description and training emphasized assisting students with physical needs, such as catheter or tube feeding, not handling “regular, targeted physical assaults.” These targeted assaults constituted “physical harassment that culminated in three events that were precisely identifiable” and “properly characterized as objectively traumatic,” said the tribunal.
The tribunal found the following factors made the worker’s situation “exceptional” and could not be reasonably expected in her position as an EA:
• the student’s targeting of the worker
• the escalation of assaults into daily occurrences in 2011
• the lack of advance warning of the assaults
• the worker’s inability to prepare for the assaults when helping other students
• being left alone with the student in a taxicab and assaulted repeatedly, which was not a regular part of an EA’s responsibility.
The tribunal overturned the ARO’s decision and granted the worker entitlement to workers compensation benefits for mental stress.
For more information see:• Decision No. 177/16, 2016 CarswellOnt 1995 (Ont. Workplace Safety and Appeals Trib.).