Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

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

Kelly v. State, Dept. of Corrections (10/16/2009) sp-6422, 218 P3d 291

     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.

This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com
Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC