Gregory Silva v. Kansas City Power & Light

1. Amount of compensation payable: None.
2. Second Injury Fund liability: N/A
3. Future requirements awarded: None.

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Gregory Silva

Injury No. 06-066258

Dependents: N/A

Employer: Kansas City Power \& Light

Insurer: Self-Insured

Additional Party: N/A

Hearing Date: June 25, 2007

Checked by: MSS/lh

On June 25, 2007, the employee, Gregory Silva (claimant), employer and self-insured, Kansas City Power \& Light Co. (employer) appeared for a Section 287.460 RSMo. Hearing in Kansas City, Missouri. Claimant appeared in person and by and through his attorney, Debra Moore. Employer/insurer appeared by and through their counsel, Kara M. Dorssom. Karen Kono also appeared as a representative of the employer.

The parties stipulated that:

1. On or about April 26, 2006, Kansas City Power \& Light Co. was an employer operating under and subject to the terms and provisions of the Missouri Workers' Compensation Act, and that KCP\&L was self-insured under that Act.
2. On the date of injury, claimant was an employee of the employer and was working under the provisions of the Missouri Workers' Compensation Act.
3. Employer had notice of the alleged injury.
4. A Claim for Compensation was filed within the time prescribed by law.
5. The Employer has paid no medical benefits as of the date of the Hearing.
6. Employer has paid no temporary total disability compensation as of the date of the Hearing.

The claimant testified in person. The following witnesses were called by the claimant: Ted Stewart, David Haley, Pat May, John Gray, Roger Woods. The claimant presented Exhibits A through J which were admitted into evidence without objection. These exhibits were as follows:

Exhibit A - Work Order

Exhibit B - Calibration Glance Reports

Exhibit C - Fitness for Duty Exam Report

Exhibit D - Email 4/26/06

Exhibit E - Email 4/27/06

Exhibit F - Final Step Up Score Sheet

Exhibit G - KCP\&L Bargaining Unit Employee Handbook

Exhibit H - 6/21/06 report of Dr. Norman Heisler

Exhibit I - Certificate of Tier 1 Attendance

Exhibit J - Probationary Employee Review.

Employer/insurer called the following witnesses in person: Dave Warren, Tommie Stowers, Rory Grounds. Employer/insured called the following witnesses by deposition: Dr. Norman Heisler, Patrick Baker, James Roberts, Dominic Scardino. Employer/insured presented 18 exhibits, which were admitted into evidence without objection. These exhibits were as follows:

Exhibit 1 - Heisler Deposition transcript and deposition exhibit 2

Exhibit 2 - Baker Deposition transcript and deposition exhibit 1

Exhibit 3 - Davis Medical Records

Exhibit 4 - Geenens Medical Records

Exhibit 5 - KCP\&L CEMS Manual

Exhibit 6 - CEMS log book

Exhibit 7 - File Note 6/24/05

Exhibit 8 - Undated File Note

Exhibit 9 - Meeting Minutes 10/31/05

Exhibit 10 - 11/8/05 letter to G. Silva

Exhibit 11 - 4/27/06 Email

Exhibit 12 - Grounds Interview Notes re G. Silva

Exhibit 13 - Grounds Interview Notes re Roberts and Warren

Exhibit 14 - Calibration Glance Reports

Exhibit 15 - Roberts Deposition transcript and deposition exhibits

Exhibit 16 - DVD video of Roberts deposition

Exhibit 17 - Scardino Deposition transcript and deposition exhibits

Exhibit 18 - DVD video of Scardino deposition.

The issues presented to the Division are as follows:

1. Did the claimant sustain an injury which arose out of and in the course of his employment at Kansas City Power \& Light Co?
2. Was claimant's injury as a result of "extraordinary and unusual" workplace stress as required by Section 278.120.8 RSMo.?
3. Was claimant's injury the result of a "good faith" action by the employer pursuant to Section 287.120.9 RSMo.?
4. Is the employer liable for any medical treatment as a result of the alleged injury?
5. Is the employer responsible for past TTD and future TTD?

1. Claimant Gregory Silva was first hired at Kansas City Power \& Light Co. ("KCP\&L") on November 10, 1999 at which time he was assigned to work as a technician at KCP\&L's Hawthorn Station.
2. In approximately 2004, Mr. Silva bid for and received a transfer to a position as an equipment technician at KCP\&L's Northeast Station. In this position, he was responsible for maintenance of KCP\&L's gas turbines. Mr. Silva's direct supervisor in this position was Tommie Stowers, the shift foreman for the Northeast turbine group. Mr. Stowers was supervised by Dominic Scardino.
3. Prior to Mr. Silva's transfer to Northeast, Mr. Scardino was involved in a meeting in which Mr. Silva was disciplined for problems with his work performance. As a result, Mr. Scardino believed that Mr. Silva's work performance should be monitored closely to ensure that he was able to perform his responsibilities appropriately.
4. During his tenure in the Northeast turbine group, Mr. Silva was assigned to work at the company's West Gardner location. This position required Mr. Silva to monitor and maintain the company's CEMS units. Mr. Silva's primary responsibility in this position was to maintain a CEMS logbook, required by federal and state regulations as well as company policies. On several occasions, Mr. Silva was noted to have failed to timely document the logbook, an omission that could cause the company to be found in violation of EPA regulations. Mr. Silva also was noted to have attendance problems, and was disciplined for these attendance problems. There is no evidence that Mr. Silva's job duties were more stressful or more extensive that those of the other equipment technicians in his work group.
5. During his testimony, Mr. Silva testified regarding six specific incidents that he alleges caused him mental stress. These were: 1) Failure to initially assign him to work at the West Gardner facility; 2) An argument with Mr. Roberts in October 2005 regarding the method by which work on a PT fuse should be performed; 3) An argument with Mr. Roberts on April 19, 2006 regarding work to be done on a turbine that

had tripped; 4) An incident on April 13, 2006 where Mr. Roberts, who was covering Mr. Silva's position while Mr. Silva was on vacation, reported that certain bottle values were incorrect; 5) a "violent" confrontation in October 2005 in which Mr. Silva alleges that Mr. Roberts threatened to "kick his ass;" and finally, 6) Mr. Roberts' removal of Mr. Silva's personal items from a shared workspace on April 13, 2006.

1. With respect to Mr. Silva's allegation that he was not assigned to work at the West Gardner facility, all of the testimony of his co-workers and that of his supervisor Mr. Stowers establishes that Mr. Silva was, in fact, assigned to work at West Gardner. Indeed, Mr. Silva himself admits that he was assigned to West Gardner where he worked alone and without significant contact with any other employees for the last several months that he was actively working.
2. With respect to Mr. Silva's allegations regarding his arguments with Mr. Roberts, it is clear that the two had a contentious working relationship. The testimony from all witnesses employed in the Northeast turbine group is that Mr. Silva was difficult to work with and had conflicts with many, if not all, of his coworkers. Mr. Roberts, Mr. Silva, Mr. Scardino, Mr. Warren, and Mr. Stowers all testified that Roberts and Silva had several arguments, during which both parties became heated. The evidence establishes that Mr. Silva was an active and voluntary participant in these arguments.
3. The testimony from all witnesses establishes that the disagreements with Mr. Roberts were all the result of differing opinions regarding the way in which work was to be performed. Mr. Silva's complaints regarding Mr. Roberts' changing of certain bottle values is one example of the continuing disagreements between the two regarding correct work procedure.
4. Mr. Silva testified that during an argument in October, 2005, Mr. Roberts threatened to "kick his ass," an allegation that Mr. Roberts denies and the two witnesses to the argument, Mr. Scardino and Dave Warren, also deny. Consequently, I find Mr. Silva's testimony on this issue to be not credible, and to find that while there was an argument between the parties, there was no physical threat to Mr. Silva. Both Mr. Silva and Mr. Roberts were disciplined by Mr. Scardino for this incident. Mr. Roberts' reaction to the discipline was to recognize that his behavior was inappropriate and to agree to try harder to get along with Mr. Silva. Mr. Silva, in contras