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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kelly v. State, Dept. of Corrections (10/16/2009) sp-6422
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| CARL KELLY, | ) |
| ) Supreme Court No. S- 12814 | |
| Appellant, | ) |
| ) Alaska Workers Compensation | |
| v. | ) Appeals Commission No. 06-030 |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| DEPARTMENT OF CORRECTIONS, | ) |
| ) | |
| Appellee. | ) No. 6422 October 16, 2009 |
| ) | |
Appeal from the Alaska Workers Compensation
Appeals Commission, Kristin S. Knudsen,
Chair.
Appearances: Joseph A. Kalamarides,
Kalamarides & Lambert, Anchorage, for
Appellant. Daniel N. Cadra, Assistant
Attorney General, Anchorage, and Richard A.
Svobodny, Acting Attorney General, Juneau,
for Appellee.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, Winfree, and Christen, Justices.
FABE, Chief Justice.
I. INTRODUCTION
A prison guard filed a report of injury for job-related
stress after being threatened with serious physical injury and
possible death by an inmate who had been convicted of murder and
was armed with a weapon. For over five years, the State paid
workers compensation benefits to the guard, including permanent
partial impairment and reemployment benefits. But more than nine
years after the threat, the State filed a notice of
controversion, raising for the first time the defense that the
employees claim was not compensable. Though all doctors who
examined the guard agreed that work stress led to the employees
mental health problems, the Alaska Workers Compensation Board
found that the employees injury was not compensable because the
stress he experienced was not extraordinary and unusual for a
prison guard. It also rejected the guards argument that laches
or estoppel should bar the State from disputing the
compensability of the claim. The Alaska Workers Compensation
Appeals Commission affirmed the Board. Because the Board and
Commission misinterpreted the extraordinary and unusual
requirement for mental stress claims, we reverse the Commissions
decision and remand for a determination whether the guard is
permanently and totally disabled.
II. FACTS AND PROCEEDINGS
Carl Kelly began working as a prison guard at Cook
Inlet Pretrial Facility in 1987. Kelly worked on a rotation
schedule, working seven 12-hour days, followed by seven days off.
His duties included transporting prisoners from place to place
within the facility, booking prisoners, and serving as a module
officer.
As a module officer, Kelly supervised the inmates in a
particular unit; he testified that he spent his whole shift with
between twelve and forty-eight prisoners in a unit, acting as a
babysitter. When serving as a module officer, Kelly was the only
Department of Corrections employee in the unit and was locked in
with the prisoners. Module officers were unarmed and had only a
radio for communicating with other staff. Their keys only locked
individual cells within the unit. Each housing unit had a desk
for the module officers use; the desk was in the living area
occupied by the inmates when they were not locked down. Kelly
testified that he received minimal training because the facility
was understaffed when he began to work there and that the
facility remained overcrowded and understaffed throughout his
course of employment.
Kelly reported difficulties at work after the State
began to house younger offenders, including juveniles who had
been waived to adult status, at Cook Inlet Pretrial Facility.
Kelly testified that the younger prisoners were more defiant,
less likely to take orders from him, and more likely to fight
with each other. In addition to the increased stress from the
younger inmates, Kelly described death threats by two inmates,
which were particularly frightening to him. One inmate
repeatedly threatened to kill Kelly after he was released from
prison and told Kelly that he knew where Kelly lived. Another
inmate, who had been convicted of the rape and murder of a child
and sentenced to ninety-nine years, threatened Kelly after Kelly
wrote him up for an infraction.
According to Kelly, one day he temporarily relieved a
guard who was assigned to the module that housed prisoners with
mental health problems. Kelly was not generally assigned to Mike
Mod, where these prisoners were housed, because personnel
assigned there needed to have specialized training, which Kelly
lacked. The inmate Kelly had disciplined had been convicted of
murder and was in the mental health unit because the segregation
unit he had been assigned to was full. When the inmate saw
Kelly, he came over to the desk where Kelly was sitting. The
inmate, who had a sharpened pencil, stood in front of the desk
and told Kelly that he could stab Kelly in the eyes with the
pencil, take his radio and keys, and then stab him to death.
Kelly testified that the convicted murderer was very strong and
got drunk on [h]air spray. Kelly believed that the inmate would
carry out his threat and was afraid to call for help. When Kelly
failed to respond on his radio to calls from other correctional
officers, guards came to investigate. Kelly testified that the
inmate did not back off until three correctional officers came to
Kellys assistance. Kelly was not allowed to work in the same
unit as the threatening inmate after this incident.
Kelly filed his report of injury between six months and
a year after the threat. The other stressors that eventually
prompted Kelly to seek medical attention and file a report of
injury were more mundane inmates throwing things at him and
pouring urine on his chair. On April 12, 1995, after some
difficulties with prisoners in his unit, Kelly felt that his
blood pressure was rising, and he began to experience chest pain.
He went to the medical staff at Cook Inlet Pretrial Facility, who
took his blood pressure and started him on oxygen. Kelly also
took nitroglycerin. He was taken to the hospital, where he
remained overnight. He was discharged the next day with a
diagnosis of [c]hest pain, unclear etiology probably not cardiac.
Kelly filed a report of injury on May 5, 1995, listing
his injury as angina, and describing his illness as chest pains,
shortness of breath, high blood pressure, dizziness. The report
stated that Kelly was stressed out by a prisoner or prisoners,
which led to an angina attack. The State began to pay temporary
total disability (TTD) benefits on June 15, 1995.
Kelly received treatment from Edward Brown, M.D., who
noted hypertension, borderline tachycardia, and chest pain. Dr.
Brown stated in his May 10, 1995 chart notes that Kellys
significant anxiety was probably causing the chest pain. Dr.
Browns chart notes from June 8, 1995, indicated that Kelly was
very concerned over his personal safety at work, outside of work,
and keeps envisioning situations in which if he was seen by
former inmates that have threatened him in the past, that he may
end up injured or killed. Dr. Brown prescribed antidepressant
and antianxiety medication for Kelly and eventually diagnosed him
with posttraumatic stress disorder (PTSD). Dr. Brown referred
Kelly to Osamu Matsutani, M.D. for psychiatric treatment. Dr.
Matsutani continued Kellys antidepressant medication but did not
provide other types of therapy.
In June 1996 the State required Kelly to attend an
employers independent medical evaluation (EIME) with James
Robinson, M.D., Ph.D. Dr. Robinsons medical specialty was
physiatry,1 but he was also a psychologist. Dr. Robinson
performed a psychological evaluation of Kelly but was unable to
give a definitive diagnosis because he thought that some of
Kellys medical tests suggested alcohol abuse. Kelly underwent an
alcohol evaluation in September 1997; the evaluator diagnosed
alcohol dependency in remission and did not recommend treatment.
The evaluator noted that Kelly might have been self-medicating
his PTSD with alcohol.
Kelly went to a second EIME with Dr. Robinson in
December 1997. By then, the blood chemistry that had concerned
Dr. Robinson was within normal limits. Dr. Robinson did not make
a definitive diagnosis in 1997 either; the diagnoses Dr. Robinson
provided were Rule out post traumatic stress disorder and Rule
out adjustment disorder with mixed disturbance of emotions and
conduct. In spite of the lack of a firm diagnosis, Dr. Robinson
gave the opinion that Kelly could not return to work as a
correctional officer, was medically stable, and had a ratable
impairment as a result of his work injury. Dr. Robinson later
rated Kelly as having a twelve percent whole man permanent
partial impairment (PPI) because of psychological symptoms.
In the summer of 1998 Kelly and the States adjuster
signed a reemployment plan to train Kelly as a computer
repairperson. Kelly completed training for certification as an
entry-level computer service technician and worked for awhile at
a computer repair business in Homer called TechConnect. The
State continued to pay for Kellys medication management with Dr.
Matsutani, including reimbursement for Kellys trips to Anchorage.
In 2000 the State changed workers compensation
insurance adjusters. After the change in adjusters, the State
refused to reimburse Kelly for the full amount of mileage to
Anchorage because it decided that necessary medical treatment was
available in Soldotna, closer to Kellys home. In August 2000
Kelly filed a workers compensation claim for the mileage,
identifying posttraumatic stress syndrome as his illness. The
State filed a notice of controversion. At an April 23, 2002
prehearing conference, Kelly orally amended his workers
compensation claim to include a claim for permanent total
disability (PTD) benefits.
In May 2003 Kelly underwent another EIME. This EIME
was performed by Patricia Lipscomb, M.D., Ph.D., a psychiatrist.
In her July 15, 2003 report, Dr. Lipscomb diagnosed Kelly with
anxiety disorder, alcohol abuse in remission, and polysubstance
abuse in remission. Even though she disagreed with the PTSD
diagnosis, she gave the opinion that on a more-probable-than-not
basis Kellys work stress did contribute to the development of
[his] anxiety disorder. But she stated that in her opinion,
Kelly had not suffered an injury as defined by Alaska law because
the stresses he underwent were just like those that the other
correctional officers were subjected to and that he was not
treated differently by the inmates than other correctional
officers were.
On April 20, 2004, the State filed a controversion
notice controverting all benefits based on Dr. Lipscombs report.
The parties stipulated to a second independent medical evaluation
(SIME), and on November 23, 2004, the Board ordered an SIME with
Ronald Early, M.D., Ph.D., a psychiatrist.
After examining Kelly and reviewing his medical
records, Dr. Early diagnosed Kelly with PTSD that was causally
related to the industrial injury on a more probable than not
basis. Dr. Early considered the specific threat to stab Kelly
sufficiently traumatic to justify the diagnosis of [PTSD].
Acknowledging that many prison guards are threatened by inmates,
Dr. Early stated that Kelly clearly identified his experiences as
terrifying and psychologically traumatic to him. Dr. Early also
wrote, The cumulative psychological trauma associated with
repeated threats to his life or well[-]being suggests that his
perception of the trauma was in excess of what he would
anticipate as part of his job duties, even though he knew that he
worked in a generally risky environment.
Dr. Earlys report identified work-related stress as the
predominant cause of Kellys mental injury, recommended continuing
medication for PTSD, and stated that Kelly was medically stable
as of September 1998 but could not return to work as a
correctional officer. Dr. Early did not think that Kellys mental
health status would prevent him from working as a microcomputer
support specialist.
The Board held a hearing on Kellys claim on May 26,
2006. Dr. Early and Dr. Matsutani testified by deposition. Dr.
Matsutanis deposition testimony indicated that in his opinion,
Kellys work-related stress was the cause of his PTSD. Kelly and
the State presented a number of witnesses, including Dr.
Lipscomb; Sergeant Martin Crowley, a correctional officer; and
Kelly. Kelly testified about his work and his disability. He
recounted the particular threats that he found most disturbing,
especially the death threat by the convicted murderer, and
described his stress level in general. Kelly testified that even
though it was not unusual for prison guards to endure threatening
remarks, it was uncommon for inmates to make death threats like
the ones made to him. He also testified about his current
medical condition and the limitations on his activities and
employment opportunities.
Dr. Lipscomb testified consistently with her report.
She stated that in her opinion, the events that Kelly described
were not sufficiently severe to warrant a diagnosis of PTSD.
Instead, she concluded that Kelly suffered from an anxiety
disorder. She also gave the opinion that Kellys job as a
correctional officer contribute[d] to the development of [his]
anxiety disorder, but that his illness was not compensable
because the definition of compensable mental injury in the
statute would require that the stress that he was subjected to
was a good bit more than other similarly situated employees, and
that did not appear to be the case. She criticized Dr. Earlys
report because she did not think that Dr. Early addressed whether
Kellys work stress was extraordinary and because what he seemed
to be saying was that Mr. Kelly found it to be particularly
stressful. She noted that Dr. Earlys opinion about the nature of
Kellys stress seemed to have mainly to do with the subjective
experience. Dr. Lipscomb also testified that PTSD is a type of
anxiety disorder and that it is not unusual for doctors to come
to different conclusions about diagnoses when there are shared
diagnostic criteria.
Sergeant Martin Crowley, who worked at Cook Inlet
Pretrial Facility for eight years beginning in 1993, testified
about his experience as a correctional officer. He testified
that he could recall threats to his life, but most of the threats
he described were from inmates who were intoxicated and, in many
cases, in holding cells. He conceded that he did not consider
the threats viable, although he would document them for
discipline reasons. He acknowledged that he could recall threats
from inmates in the general population very, very seldom.
In its decision, the Board decided that Kellys claim
was not compensable because his work stress was not extraordinary
and unusual in comparison to pressures and tensions experienced
by the other corrections officers employed by the employer at the
same time. The Board found that Kelly suffer[ed] from a mental
injury, but that it did not need to determine whether he suffered
from PTSD or an anxiety disorder. The Board found that Dr.
Earlys conclusion about causation was based on an analysis that
is contrary to Alaska law because Dr. Early focused on whether
the stress was discrete to the employee and greater than that
which he would experience on a daily basis. It found that Dr.
Early focused on how [Kelly] perceived the stress and that he
should have addressed whether the work stress was extraordinary
and unusual in comparison to pressures and tensions experienced
by individuals in a comparable work environment, not whether the
stress was extraordinary as perceived by the employee. As a
result, the Board gave Dr. Earlys report little if any
evidentiary weight.
The Board gave great weight to Crowleys testimony and
noted that Kelly admitted that his coworkers were under similar
stress. It found that any lack of training would reasonably only
[be] expected to affect [Kelly] for the first year, at most. It
also decided that it would not be extraordinary and unusual for a
correctional officer to be threatened by inmates and to see
released inmates sometimes. The Board rejected the equitable
arguments raised by Kelly because it determined that he had not
shown prejudice.2 The Board found that Kellys claim that he was
hindered in preparing his case was not supported by the record.
It also found Kellys claim that he had not appealed his Public
Employees Retirement System (PERS) decision in reliance on
receipt of workers compensation benefits to be disingenuous.3
Kelly appealed to the Alaska Workers Compensation
Appeals Commission, which affirmed the Boards decision. The
Commission focused first on Kellys equitable arguments, finding
that the State had not asserted an inconsistent position for
purposes of quasi-estoppel. It also determined that substantial
evidence in the record supported the Boards finding that Kelly
was not prejudiced by the States conduct. The Commission decided
that the Board permissibly admitted the Retirement Board decision
in spite of Kellys objection that it was not relevant. The
Commission considered the Boards interpretation of Dr. Earlys
testimony reasonable, but concluded that regardless of Dr. Earlys
testimony, Crowleys testimony provided substantial evidence in
the record to support the Boards decision that Kelly had not
suffered an injury as defined under former AS 23.30.395(17).
Kelly appeals.
III. STANDARD OF REVIEW
In an appeal from the Alaska Workers Compensation
Appeals Commission, we review the Commissions decision.4 We
exercise our independent judgment in questions of law that do not
involve agency expertise.5 We independently review the
Commissions legal conclusion that substantial evidence supports
the Boards findings; this requires us to review the record and
the Boards factual findings independently.6 Substantial evidence
to support factual findings is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. 7
We also independently review the Commissions legal conclusion
about the Boards exercise of discretion, independently assessing
the Boards action.8 An abuse of discretion exists when, after
reviewing the record, we are left with a definite and firm
conviction that a mistake has been made.9
IV. DISCUSSION
A. It Was Error To Conclude that Substantial Evidence
Supported the Boards Finding that Kellys Stress Was Not
Extraordinary and Unusual.
At the time of Kellys claim of injury, an injury for
purposes of the Alaska Workers Compensation Act did not include
mental injury caused by mental stress unless it [was] established
that (A) the work stress was extraordinary and unusual in
comparison to pressures and tensions experienced by individuals
in a comparable work environment, and (B) the work stress was the
predominant cause of the mental injury.10 The amount of work
stress was required to be measured by actual events, and the work
stress could not be caused by personnel actions such as work
evaluations or terminations.11 An employee was required to prove
each element of the test for mental injury by a preponderance of
the evidence, without the benefit of the presumption of
compensability.12
The Commission concluded that substantial evidence in
the record supported the Boards finding that Kelly had not
experience[d] extraordinary and unusual pressures and tensions in
his employment. The Commission stated that Crowleys testimony
established that Kellys perception that the trauma was that it
was in excess of what he would have anticipated as part of his
job was mistaken.
Kelly argues that the Commissions conclusion was
erroneous because the death threats he described were
extraordinary and unusual even for prison guards. Kelly also
contends that the Board improperly discounted Dr. Earlys opinion
because the Board misconstrued the former statute as prohibiting
consideration of personal perceptions in evaluating whether the
stress experienced by the employee was extraordinary and unusual.
The State responds that the statute ma[de] the test for
compensability an objective one, so that it was irrelevant
whether the employee subjectively perceived the stressors as
unusual and extraordinary. It also maintains that substantial
evidence in the record supports the Boards findings because
Crowley testified that he, too, had received threats to his life
and because Dr. Lipscomb concluded that Kelly had not suffered a
compensable injury as defined by Alaska law.
1. Mental injury claims
Work-related mental injuries have been divided into
three groups for purposes of analysis: mental stimulus that
causes a physical injury, or mental-physical cases; physical
injury that causes a mental disorder, or physical-mental cases;
and mental stimulus that causes a mental disorder, or mental-
mental cases.13 Kellys PTD claim is a mental-mental claim because
he asserts that the mental stress of his job as a correctional
officer caused a mental disorder, PTSD.14
According to the Larsons treatise, [m]oving from the
broadest to the narrowest coverage, states can be divided into
four categories in their treatment of mental-mental claims: (1)
claims for gradual work-related stress are allowed, and the
stress only needs to be a causative factor in the mental
condition; (2) compensation for gradual mental stress is
permitted, but only if the stress is unusual or extraordinary;
(3) compensation is allowed only when there is a sudden shock or
stimulus; and (4) no compensation is given for any mental-mental
claim.15 Alaska is in the second group, permitting mental-mental
claims for gradual stress as long as the stress is extraordinary
and unusual.16
Before the legislature narrowed the definition of
injury for work-related mental stress claims, Alaska was in the
first of the Larsons categories, making no distinction between
mental and physical injuries.17 The legislatures purpose in
limiting workers compensation claims for mental injuries caused
by work-related stress was to overrule our decisions in Fox v.
Alascom, Inc.18 and Wade v. Anchorage School District19 because of
concerns that these decisions would open the workers compensation
system to an increased number of claims and make it difficult for
employers to defend against stress claims.20
In Fox, we held that mental claims should be analyzed
in the same way as physical claims and rejected the use of
objective tests similar to the unusual stress in the profession
test as thresholds to be attained before the presumption of
compensability attaches.21 In Wade, we refused to adopt the
unusual stress in the profession test in evaluating a stress
claim after the presumption of compensability had been
established, although we acknowledged that the test could be
relevant to determining whether a stress disability suffered by
an employee was job related.22
Both Fox and Wade also involved stress claims in which
the employees stress was ascribed to events in the workplace that
others disputed. In Fox, the employee felt stressed from not
being told what was expected of her and from being treated
unequally.23 She also attributed her problems solely to her job
even though she experienced other stressful events in her
personal life during the same period of time.24 Her employer
disputed the employees specific contentions that her supervisors
talked about her behind her back and failed to tell her what was
expected of her.25 Likewise, in Wade, the employee, who was
diagnosed with an underlying paranoid personality disorder,
complained about incidents of harassment and discrimination that
were denied by others or appear[ed] simply harmless.26 We agreed
that substantial evidence supported the Boards finding that the
employees illness resulted in his misperceiving the reality of
various events at school but held that the employer had not
produced substantial evidence to rebut the presumption of
compensability.27
In response to these cases, the legislature removed the
presumption of compensability in mental-mental cases and defined
a mental injury to require stress that was extraordinary and
unusual in comparison to that of similar workers.28 It prescribed
that the amount of work stress . . . be measured by actual
events.29 Kellys claim raises two issues related to these
legislative enactments. The first is whether the legislature
intended to prohibit consideration of the employees perception of
events, and the second is what the legislature meant by
extraordinary and unusual stress.
2. Consideration of the employees perception
Kelly argues that the Board erred in its evaluation of
Dr. Earlys testimony because [n]othing in the act or case law
states that personal perceptions cannot be considered in
determining whether the stressors were unusual and extraordinary.
The Board gave Dr. Earlys testimony little weight because it
decided that his analysis was not consistent with Alaska law.
The Board found that Dr. Early focused on how the employee
perceived the stress and whether the stress was discrete to the
employee and greater than what he would experience on a daily
basis.
We agree with Kelly that former AS 23.30.385(17) does
not prohibit consideration of a claimants perception of events.
The statutory language required that work-related stress be
measured by actual events.30 Former AS 23.30.395(17) was silent
about a workers perception of the actual events after the
legislature removed a reference to an employees misperception
before passage of the final bill. As originally introduced, the
legislation stated, [T]he amount of work stress shall be measured
by actual events rather than misperceptions by the employee.31
The House Judiciary Committee deleted the phrase about employee
misperceptions in response to concerns that it implied that any
perception by the employee was a misperception.32
To interpret the former statute as prohibiting
consideration of a claimants perception of a frightening, actual
event could prevent compensation claims based on the current
diagnostic criteria for PTSD. These criteria require a
determination by the clinician that a patients response to a
threat of death or serious injury involved intense fear,
helplessness, or horror.33 Nothing in the legislative history
indicates that the legislature intended to prevent PTSD claims by
workers.
But a workers perception that he feels stress is by
itself inadequate to establish extraordinary and unusual stress.
The perception issue has been framed by other courts as requiring
an inquiry into whether the claimed mental injury is the result
of actual, not merely perceived or imagined, employment events.34
In Kellys case, the State presented no evidence to suggest that
the threats to Kelly did not happen or that he somehow
misperceived the inmates threat to him. Instead, the
uncontroverted evidence showed that correctional officials took
the threat seriously and ensured that there was no further
contact between Kelly and the convicted murderer who threatened
him. Although the States expert expressed the opinion that
Kellys stress was not extraordinary and unusual in comparison
with that experienced by other correctional officers at Cook
Inlet Pretrial Facility, she nonetheless allowed that [t]he
stress he experienced during his employment with the correctional
system could have been sufficient to cause or aggravate an
anxiety disorder, not otherwise specified. Finally, nothing in
the Boards decision indicates that it disbelieved Kellys
testimony about the death threats.35
3. Extraordinary and unusual stress
To evaluate the Commissions conclusion that substantial
evidence supported the Boards finding that Kelly did not
experience extraordinary and unusual stress, we first examine
what extraordinary and unusual means in former AS 23.30.395(17).
When we interpret a statute, we look at the plain meaning and
purpose of the law as well as the intent of the drafters.36
[U]nless words have acquired a peculiar meaning, by virtue of
statutory definition or judicial construction, they are to be
construed in accordance with their common usage.37 Here, the
legislature did not define extraordinary and unusual. An
examination of the common meaning of the words extraordinary and
unusual does not clarify what the legislature intended. Unusual
is defined as [n]ot usual, common, or ordinary.38 Extraordinary
means [b]eyond what is common or usual or very exceptional.39
Comments by legislators during committee hearings on
the bill containing the extraordinary and unusual requirement
provide insight into the legislatures conception of what would
qualify as extraordinary and unusual stress. During discussions
of the proposed legislation, legislators discussed hypothetical
examples of what should qualify as extraordinary and unusual
stress; among the examples that legislators thought would be
compensable were an ironworker who nearly fell to his death40 and
an air traffic controller who felt responsible for a plane crash
that killed many people.41
In determining what constitutes extraordinary and
unusual stress, Professors Larson and Larson note that cases
involving sudden fright and fear are generally rated unusual in
comparison with any norm.42 They explain that [e]xcept for the
adventurous heroes that inhabit the world of one-hour television
thrillers, continuous terror, shock, and dramatic brushes with
death are not the normal routine of life.43 The death threat
Kelly received from the inmate who menaced him with a sharpened
pencil falls within this class of stress.
In its decision here, the Board did not explain in any
detail why the death threat incident did not constitute
extraordinary and unusual stress in comparison to pressures and
tensions experienced by other prison guards. It stated only that
as a corrections officer it would not be extraordinary and
unusual to receive threats, run into released inmates from time
to time, etc. The Commission determined that Crowleys testimony
provided substantial evidence to support the Boards finding. It
went on to say that its review of the whole record reveal[ed]
substantial evidence to support the boards finding.
The Board erred by focusing on the frequency of threats
rather than the character and quality of the threats described by
Kelly. Even if other prison guards are threatened by inmates,
the particular threat Kelly endured was far beyond the usual
threats that Crowley testified about. An examination of Crowleys
testimony shows that while he had experienced threats, they were
of a different quality and character from the death threat
incident that Kelly described. First, Crowley said that he had
never been threatened while in a vulnerable position in the
module and that he had very, very seldom been threatened by
inmates in the normal population where Kelly worked. Crowley
testified that the threats to him were not viable.
Crowleys description of being threatened with a weapon
also differed substantially from the incident Kelly was involved
in. In response to questioning about whether an inmate had come
directly at [him] . . . and threaten[ed] [him] with [an]
implement, Crowley replied:
Cell extractions, where we would have to go
in and . . . and take an inmate out of a
room, due to his behavior, and although he is
behind a locked door, that door is going to
be unsecured and were going to be going in to
the room and removing him from that room,
there have been times where an inmate has
been holding a pencil or a chicken bone thats
been sharpened or a utensil that has been
sharpened and threats have been made, that:
If you come in here, Im going to use this
weapon.
A correctional officer threatened by an inmate in a cell can
choose not to open the door until he has adequate assistance to
disarm the inmate. Kelly had no such choice.
When Kelly was threatened, he was alone and unarmed in
Mike Mod, sitting at his desk in the open living area. He was
essentially cornered by a strong inmate who had already been
convicted of murder. The inmate was armed with a sharpened
pencil, which he threatened to use to stab Kelly in the eyes and
then stab him to death. Other courts have concluded that
sharpened pencils can be deadly weapons, particularly when aimed
at a victims eye or neck.44 Kelly had to wait for others to come
to his assistance because he was afraid that if he answered his
radio or called for help the inmate would attack him. The
uncontroverted evidence presented at Kellys hearing also revealed
that corrections officials treated this threat differently from
others, as Kelly testified that he and the prisoner who made the
threat were kept apart after the incident. The Board erred in
failing to appreciate the unusual and serious nature of the
threat to Kelly.
Other courts have concluded that sudden, traumatic
incidents qualify as extraordinary stress. In a case involving a
PTSD claim by a convenience store clerk after a robbery, the Iowa
Supreme Court held that in cases of a manifest happening of a
sudden traumatic nature from an unexpected cause or unusual
strain, the legal-causation test is met irrespective of the
absence of similar stress on other employees.45
Because the Board and the Commission failed to consider
the character of the sudden, traumatic threat to Kelly, the
Commission erred in concluding that substantial evidence
supported the Boards finding that Kellys stress was not
extraordinary and unusual in comparison to the stresses
encountered by other prison guards. Even accepting that prison
guards may be subject to threats, the traumatic death threat that
Kelly described in detail constituted extraordinary and unusual
stress.46
It is not necessary to remand to the Board for factual
findings on the other elements of the compensability of Kellys
claim.47 There is no evidence that the stress Kelly experienced
was related to a personnel action such as an evaluation or
termination.48 All of the doctors who testified indicated that
work-related stress caused Kellys mental health problems. Dr.
Early stated that the work-related stress was the predominant
cause of Kellys PTSD. Dr. Matsutani excluded other possible
causes of PTSD, such as Kellys military service. Dr. Lipscomb
wrote in her report that Kellys work stress could have been
sufficient to cause or aggravate an anxiety disorder, not
otherwise specified. The State introduced no evidence suggesting
that other, non-work-related stressors contributed in any way to
Kellys mental condition, whether it was an anxiety disorder or
PTSD.49 Kelly therefore satisfied all of the elements required to
show that he had suffered an injury as defined by the Alaska
Workers Compensation Act at the time of his injury.50
V. CONCLUSION
For the foregoing reasons, we REVERSE the decision of
the Commission affirming the Boards decision that Kelly did not
experience extraordinary and unusual stress and REMAND the case
to the Commission with instructions to remand the case to the
Board for a determination whether Kelly is permanently and
totally disabled and whether he is entitled to medical-related
travel expenses.
_______________________________
1 Physiatry, also known as physical medicine, is defined
as [d]iagnosis, prevention, and treatment of disease by
essentially physical means, including exercise, manipulation,
massage, and the application of heat, cold, radiation, or
electricity. Websters II New College Dictionary 850-51 (3d ed.
2005).
2 Before the Board, Kelly argued that laches or estoppel
should bar the State from contesting the compensability of his
claim. Kelly based his argument on the States payment of
benefits over many years and its failure to raise the issue of
extraordinary stress for nine years after his injury.
3 Kelly applied for PERS occupational disability benefits
in October 1995. This application was denied. He appealed the
denial to the Public Employees Retirement Board and also sought
non-occupational disability benefits. The Retirement Board
denied both claims. Kelly did not appeal the Retirement Board
decision.
4 Barrington v. Alaska Commcns Sys. Group, Inc., 198 P.3d
1122, 1125 (Alaska 2008).
5 Id.
6 Smith v. CSK Auto, Inc., 204 P.3d 1001, 1007 (Alaska
2009).
7 Id. (quoting DeYonge v. NANA/Marriott, 1 P.3d 90, 94
(Alaska 2000)).
8 Bohlmann v. Alaska Constr. & Engg, Inc., 205 P.3d 316,
319-20 (Alaska 2009).
9 Dougan v. Aurora Elec., Inc., 50 P.3d 789, 793 (Alaska
2002) (citing Morgan v. State, Dept of Revenue, 813 P.2d 295, 297
n.4 (Alaska 1991)).
10 Former AS 23.30.395(17).
11 Id. In 2005 the legislature removed the provisions
related to mental stress from the definition of injury. Ch. 10,
66, FSSLA 2005. Similar limitations on stress-related claims
were placed in a different statutory section. Ch. 10, 9, FSSLA
2005 (codified at AS 23.30.010(b)).
12 See Williams v. State, Dept of Revenue, 938 P.2d 1065,
1071-72 (Alaska 1997).
13 See 3 Arthur Larson & Lex. K. Larson, Larsons Workers
Compensation Law 56.01 (2008).
14 The parties appear to agree that initially Kellys claim
was a mental-physical claim because he reported that he suffered
from angina caused by the stress of his work.
15 3 Larson & Larson, supra note 13, 56.06[2] (footnote
omitted).
16 AS 23.30.010(b); see also former AS 23.30.395(17); 3
Larson & Larson, supra note 13, 56.06D[6] n.38 (citing
Williams, 938 P.2d at 1065).
17 Fox v. Alascom, Inc., 718 P.2d 977, 984 (Alaska 1986);
see also 3 Larson & Larson, supra note 13, 56.06[1][b],
56.06D[6] n.39 (citing Wade v. Anchorage Sch. Dist., 741 P.2d 634
(Alaska 1987); Fox, 718 P.2d at 977).
18 718 P.2d 977.
19 741 P.2d 634.
20 H. Judiciary Comm., House CS for CS for Senate Bill No.
322 (L&C) 18: Sectional Analysis (Apr. 6, 1988); H. Labor &
Commerce Comm., Workers Comp. Legislation Comparative Analysis
House and Senate Bills 9 (Feb. 23, 1988); see also Minutes, H.
Judiciary Comm. Hearing on S.B. 322, 15th Leg., 2d Sess. (Apr.
16, 1988) (testimony of Janice Hansen, Chief of Adjudications,
Alaska Workers Comp. Bd.).
21 718 P.2d at 981-84; see Wade, 741 P.2d at 638 & n.5
(explaining the similarities between the test rejected in Fox and
the unusual stress in the profession test).
22 741 P.2d at 638-39.
23 718 P.2d at 979.
24 Id.
25 Id.
26 741 P.2d at 636, 639.
27 Id. at 639-40.
28 Ch. 79, 21, 42, SLA 1988. Some states adopted the
unusual or extraordinary stress test judicially. See 3 Larson &
Larson, supra note 13, 56.06[1][c].
29 Id. 42.
30 Former AS 23.30.395(17).
31 Senate Bill (S.B.) 322, 15th Leg., 2d Sess. (Jan. 11,
1988).
32 House Committee Substitute for Committee Substitute for
Senate Bill (H.C.S. C.S.S.B.) 322 (Judiciary), 15th Leg., 2d
Sess. (Apr. 28, 1988); Minutes, H. Judiciary Comm. Hearing on
S.B. 322, 15th Leg., 2d Sess. (Apr. 18, 1988) (comments of Rep.
Robin Taylor).
33 Am. Psychiatric Assn, Diagnostic and Statistical Manual
of Mental Disorders 467 (rev. 4th ed. 2000). Dr. Early testified
that only about five to ten percent of the people exposed to a
psychic trauma sufficient to meet the criteria for the diagnosis
of PTSD actually develop the disorder.
34 Davis v. Workers Comp. Appeal Bd. (Swarthmore Borough),
751 A.2d 168, 174 (Pa. 2000) (citing Wilson v. Workmens Comp.
Appeal Bd. (Aluminum Co. of Am.), 669 A.2d 338, 344 (Pa. 1996));
see also Verga v. Workers Comp. Appeals Bd., 70 Cal. Rptr. 3d
871, 879 (Cal. App. 2008) (construing actual events of employment
as requiring objective evidence of harassment, persecution, or
other bases for mental-mental claim); Smith v. Conn. Light &
Power Co., 808 A.2d 1171, 1175 (Conn. App. 2002) (holding that
mental injury did not arise from employment but was based on
plaintiffs misperception of significance and severity of employer
actions).
35 See Hoth v. Valley Constr., 671 P.2d 871, 874 n.3
(Alaska 1983) (Absent specific findings by the Board that it
chose to disbelieve a witnesss testimony, we will not assume that
lack of credibility was a relevant factor in the Boards
decision.). The Commission interpreted the Boards statement that
it found Kellys assertion that he did not appeal the PERS
decision in reliance on receipt of [w]orkers compensation
benefits disingenuous to mean that the Board found his testimony
was not credible. The Commission is bound by the Boards findings
about the credibility of testimony of a witness. AS
23.30.128(b). But Kelly never testified about this issue; the
assertion the Board mentioned was made by Kellys attorney in his
written closing argument.
36 Young v. Embley, 143 P.3d 936, 939 (Alaska 2006)
(quoting Native Vill. of Elim v. State, 990 P.2d 1, 5 (Alaska
1999)).
37 Id. (quoting Govt Employees Ins. Co. v. Graham-
Gonzalez, 107 P.3d 279, 284 (Alaska 2005)).
38 Websters II New College Dictionary 1240 (3d ed. 2005).
39 Id. at 406.
40 Minutes, H. Judiciary Comm. Hearing on S.B. 322, 15th
Leg., 2d Sess. (Apr. 15, 1988) (comments of Rep. Sam Cotten).
41 Minutes, J. H. & S. Labor & Commerce Comm. Hearing on
S.B. 322, 15th Leg., 2d Sess. (Jan. 29, 1988) (comments of Sen.
Mike Szymanski). A member of the task force that helped draft
the legislation also suggested that a police officer who shot an
innocent person would suffer extraordinary and unusual stress.
Minutes, H. Judiciary Comm. Hearing on S.B. 322, 15th Leg., 2d
Sess. (Apr. 6, 1988) (testimony of Bob Anders).
42 2 Larson & Larson, supra note 13, 44.05[4][a].
43 Id.
44 See People v. Page, 20 Cal. Rptr. 3d 857, 863 (Cal.
App. 2004) (holding that sharpened pencil held to victims neck
was deadly weapon); State v. Workman, 308 S.E.2d 264, 267-68
(N.C. 1983) (holding that question whether pencil was deadly
weapon was proper jury question); State v. Barragan, 9 P.3d 942,
947 (Wash. App. 2000) (holding that pencil was deadly weapon when
pencil was aimed at eye, was deflected, and end of pencil became
embedded in victims temple); see also Thomas v. State, 524 P.2d
664, 665 (Alaska 1974) (citing Berfield v. State, 458 P.2d 1008,
1009 (Alaska 1969)) (holding that telephone can be a dangerous
weapon); Wynn v. United States, 538 A.2d 1139, 1144 n.14 (D.C.
1988) (noting that pencil can be a dangerous weapon).
45 Brown v. Quik Trip Corp., 641 N.W.2d 725, 729 (Iowa
2002).
46 See Stevenson v. State, No. M2001-02522-WC-R3-CV, 2002
WL 31431499, at *1 (Tenn. Workers Comp. Panel, October 31, 2002)
(remanding workers compensation claim by prison guard to lower
court for determination of whether specific incident of breaking
up a prison fight was unusual or abnormal); see also Doe v. S.C.
Dept of Disabilities & Special Needs, 660 S.E.2d 260, 262 (S.C.
2008) (holding that new mix of patients that resulted in
significant increase in violent behavior among patients in state
institution was an extraordinary and unusual condition in mental-
mental claim by licensed practical nurse); Shealy v. Aiken
County, 535 S.E.2d 438, 458 (S.C. 2000) (holding that knowledge
of imminent death threat followed by loss of protection by
sheriffs department is extraordinary condition of employment for
mental-mental workers compensation claim).
47 See State v. Kenaitze Indian Tribe, 83 P.3d 1060, 1071
(Alaska 2004) (concluding that remand not needed because no
material issue of fact needed resolution).
48 Kelly consistently received good evaluations during his
employment at Cook Inlet Pretrial Facility.
49 See Eastern Utah Broad. & Workers Comp. Fund v. Labor
Commn, 158 P.3d 1115, 1118-19 (Utah App. 2007) (construing
predominant cause to mean that sum of all work-related stress
must be greater than sum of non-work-related stress); see also
Shealy, 535 S.E.2d at 459 (holding that substantial evidence
supported finding that stressors unrelated to work contributed to
or caused mental injury).
50 Because we conclude that the Commission erred in
deciding that the Boards findings were supported by substantial
evidence, we do not address the equitable claims Kelly raised.
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