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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.

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  Decision 119 16 I
6/23/2016
T. Mitchinson - E. Tracey - C. Salama

  • Charter of Rights
  • Stress, mental
  • Board Directives and Guidelines (stress, mental) (traumatic event)
  • Teaching
  • Board Directives and Guidelines (stress, mental) (unexpected event)
  • Board Directives and Guidelines (stress, mental) (acute reaction)

The worker was an educational assistant in a special education class for developmentally-delayed students. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for traumatic mental stress. Up to 10 developmentally delayed students, ages 9 to 13, were in a class. Aggressive behavioural issues were common. During the spring term in 2009, the behaviour of one particular student was aggressive and difficult, but was managed successfully in the classroom. In the fall term in 2009, the student became much more aggressive and difficult to handle. She would kick, bite, spit, head-butt and scream. Sometime in late September, it was decided that the student had to be removed from the classroom. The teacher and the two educational assistants then took turns in providing one-on-one attention to the student in a separate room. The worker stopped working at the end of October. According to s. 13(4) and (5) of the WSIA, a worker is entitled to benefits for mental stress that is an acute reaction to a sudden and unexpected traumatic event. Board policy also allows entitlement for cumulative effect. Although the student's behaviour included regular instances of kicking, biting, spitting and head-butting, there was only one instance in which the student bit the worker on the leg. The school have a violent incident reporting process available to staff but the worker did not submit a report. The worker was diagnosed with anxiety and major depressive disorder. However, the Panel found that the worker did not experience an acute reaction to any specific incident or on a cumulative basis. The worker stopped working at the end of October 2009 because she was feeling burned out and needed a break. The Panel distinguished this case from Decision No. 177/16, which also involved a special education assistant. However, in that case, there were three specific physical assaults that ultimately caused the worker to seek treatment. In Decision No. 177/16, the worker suffered a number of acute reactions to specific identifiable events. Although the situation faced by the worker in this appeal was clearly less serious than in Decision No. 177/16, the Panel was satisfied that the average worker would find the events in this appeal to be objectively traumatic. The evidence indicated that the types of misbehaviour by the student in question could be expected on a daily basis by any of the students. The events in question were intense, frustrating and challenging but were not unexpected. The Panel concluded that the worker experienced events that were objectively traumatic but that they were not unexpected and that she did not suffer an acute reaction to those events. The worker did not have entitlement for traumatic mental stress under the WSIA. The worker had given notice of a constitutional question regarding s. 13(4) and (5). The hearing of the appeal was adjourned. The next step will be to consider whether the worker would have had entitlement for mental stress under the pre-1997 Act.