Canadian Employment Law Today

Educational assistant wins mental stress benefits Frequent assaults by special needs student were traumatic and not an expected part of the job: Tribunal BY JEFFREY R. SMITH PHYSICAL abuse from a special needs stu- dent 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. e worker was hired by an Ontario school board in 2001 and became an educa- tional assistant (EA) for "intensive support for low incidence-high risk needs (develop- mental disabilities, physical disabilities" a year later. is category of EA qualified the worker to assist students with physical dis- abilities requiring assistive devices such as feeding tubes or catheters. e worker was placed in a special educa- tion class with six students and one teacher around 2006. e classed included some vio- lent students, including one who was moved to another school and one who remained in the class. e 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 behav- iour, 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 fre- quently. e 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, abdo- men, and face • slapping her in the face • chasing her to kick or punch her. ese incidents happened in the class- room where there were other children with special needs. e student's behaviour was difficult to manage because there was usu- ally 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. e worker reported her concerns to the school's principal, who advised her to take stress days when things seemed overwhelm- ing. She was also given protective gloves. When she met with the administration — in- cluding the head of special education — they told her they didn't know what to do. Bad week led to worker's meltdown e 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. e worker hadn't had a chance to put her gloves back on and the at- tack caused a long gash on her left hand that became infected. at same week, the class went on a field trip. e 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." e 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." e worker checked her blood pressure at a drug store and found it was very high, so she called her doctor. e doctor in- creased 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. e worker filed a workers compensation claim for mental stress resulting from the es- calation of the student's behaviour from Jan- uary 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 ben- efits 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. e Ontario Workplace Safety and Insur- ance Board policy manual states that ben- efits 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 sud- den and unexpected traumatic event, which arose out of and in the course of employ- ment." Mental stress that develops gradually over time from "general workplace condi- tions" is specifically excluded for benefits in the policy manual. e worker appealed to the Ontario Workplace Safety and Insurance Appeals Tribunal. e 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. is meltdown led to her diagnosis of depression and the necessity of going on medication, said the tribunal. e medical evidence showed that the Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends ABOUT THE AUTHOR JEFFREY R. SMITH Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.r.smith@thomsonreuters.com, or visit www. employmentlawtoday.com for more information. SEVERAL on page 7 »

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