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Kelly v. State Dept. of Corrections

Supreme Court of Alaska

October 16, 2009

Carl KELLY, Appellant,

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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.

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FABE, Chief Justice.


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 employee's claim was not compensable. Though all doctors who examined the guard agreed that work stress led to the employee's mental health problems, the Alaska Workers' Compensation Board found that the employee's injury was not compensable because the stress he experienced was not extraordinary and unusual for a prison guard. It also rejected the guard's 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 Commission's decision and remand for a determination whether the guard is permanently and totally disabled.


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 officer's 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

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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 Kelly's 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 Kelly's " significant anxiety" was probably causing the chest pain. Dr. Brown's 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 Kelly's antidepressant medication but did not provide other types of therapy.

In June 1996 the State required Kelly to attend an employer's independent medical evaluation (EIME) with James Robinson, M.D., Ph.D. Dr. Robinson's 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 Kelly's 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 State's 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 Kelly's medication management with Dr. Matsutani, including

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reimbursement for Kelly's 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 Kelly's 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" Kelly's " 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 ...

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