THOMAS K KAVINSKY, Applicant

VILLA MARIA HEALTH CARE, Employer

CONNECTICUT INDEMNITY CO, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed by the applicant.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

The findings and order of the administrative law judge are affirmed.

Dated and mailed February 20, 2001
kavinth . wsd : 175 : 2  ND § 3.41

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

The applicant asserts in his petition for commission review that the administrative law judge erred in determining that the stresses experienced by the applicant were not so extraordinary as required to establish that the applicant suffered a nontraumatic mental injury as a result of the stress in his workplace on August 11, 1999. The applicant contends that the administrative law judge should have credited the opinion of his treating physician, Dr. Vaughn, who opined that the applicant suffered a nontraumatic mental injury as a result of the work incident on August 11, 1999. The applicant states that he suffered an acute stress reaction after being severely criticized by the employer's owner, Mr. Kutz, after years of criticizing and belittling treatment by his direct supervisor, Ms. Loreen Kutz. The applicant states that this harassment coupled with the increased demands of his dual workload generated stresses that were out of the ordinary for average employees at nursing homes.

However, the evidence indicates that the applicant undertook administrative duties in addition to his work in the social work area voluntarily in order to advance within the organization. Mr. Simonich testified that he was an administrator with the employer and had followed a similar career path as the applicant. Mr. Simonich testified that he was familiar with the workload of the employer's social workers and he did not believe that the applicant's workload was extraordinary compared to other social workers. Mr. Simonich indicated that the applicant's performance with administrative tasks had difficulty with accounts receivable.

The applicant testified that he suffered an acute stress reaction following an incident on August 11, 1999, and he was angrily confronted by Mr. Kutz, who swore at him, used profanity and kicked his briefcase while the office door was open. The applicant informed Dr. Vaughn on August 23, 1999, that he was accosted by his boss on August 11, 1999, in which his boss swore at him and when he attempted to get away from his boss he was pursued with the door kicked open, and his boss continued to pursue him and used profanities. The applicant also gave a history that Mr. Kutz kicked over his briefcase in the incident on August 11, 1999. However, a co-worker, Ms. Fetters, testified that she never saw the applicant being berated in the hallway on August 11, 1999, but that she did overhear a loud conversation between the applicant and Mr. Kutz on that date behind closed doors. Ms. Fetters testified that she later saw the applicant at lunchtime sitting at the same table with Mr. Kutz and carrying on a conversation. Ms. Fetters as well as other witnesses also testified that the applicant often used the same profanity Mr. Kutz had used in their conversation on August 11, 1999.

Moreover, the evidence indicates that the applicant had a history of prior performance problems with the employer in failing to adequately perform his social services work as well as accounts receivable work. The documentary evidence presented by the employer indicates that problems continued up until August 11, 1999, when the applicant was confronted by Mr. Kutz. The applicant contended in his testimony that his stress reaction was due not only to the angry confrontation on August 11, 1999, but also to harassment and unfair treatment from Ms. Loreen Kutz over several years, as well as the pressures and stresses of his job.

However, the commission credits the testimony from Ms. Fetters as well as Mr. Simonich that the applicant's job responsibilities and job stresses and pressures were no greater than similarly situated employees. The administrative law judge appropriately noted that the applicant and Mr. Kutz, in addition to their professional relationship, had a friendship and had gone boating and snowmobiling together and that Mr. Kutz considered himself one of the applicant's mentors, and was trying to groom him for an administrative position. Mr. Kutz testified that he had given the applicant several opportunities to improve his performance over the years and had become frustrated with the applicant's failure to do so. Mr. Kutz' use of the obscenity in his meeting with the applicant on August 11, 1999, was clearly done in anger and was improper. However, the commission does not find that such confrontation in which a supervisor loses his or her temper in criticizing an employee is out of the ordinary in the workplace. The applicant had undertaken additional responsibilities for the employer voluntarily to increase his salary and to advance in the organization, and many of the stresses which resulted were due to his inability to perform the duties of his job on a consistent basis. The commission agrees with the administrative law judge that the applicant's working conditions were indeed stressful including the confrontation on August 11, 1999, but that the stresses were not so extraordinary as to be out range of stresses suffered by similarly situated employees. Therefore, it was not established that the applicant suffered a nontraumatic mental injury arising out of his work for the employer.

cc: ATTORNEY MARVIN E MARKS
MARKS & LEGAL ASSOCIATES

ATTORNEY WILLIAM J WESTERLUND
WELD RILEY PRENN & RICCI SC

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