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 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.
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 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
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,
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
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 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. Lipscomb's 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. Early's report identified work-related stress as the predominant cause of Kelly's 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 Kelly's mental health status would prevent him from working as a "microcomputer support specialist."
The Board held a hearing on Kelly's claim on May 26, 2006. Dr. Early and Dr. Matsutani testified by deposition. Dr. Matsutani's deposition testimony indicated that in his opinion, Kelly's 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 Kelly's 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
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 Kelly's 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. Early's 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. Early's report "little if any evidentiary weight."
The Board gave great weight to Crowley's 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.
Kelly appealed to the Alaska Workers' Compensation Appeals Commission, which affirmed the Board's decision. The Commission focused first on Kelly's 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 Board's finding that Kelly was not prejudiced by the State's conduct. The Commission decided that the Board permissibly admitted the Retirement Board decision in spite of Kelly's objection that it was not relevant. The Commission considered the Board's interpretation of Dr. Early's testimony reasonable,
III. STANDARD OF REVIEW
In an appeal from the Alaska Workers' Compensation Appeals Commission, we review the Commission's decision.
IV. DISCUSSION
A. It Was Error To Conclude that Substantial Evidence Supported the Board's Finding that Kelly's Stress Was Not Extraordinary and Unusual.
At the time of Kelly's 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."
The Commission concluded that substantial evidence in the record supported the Board's finding that Kelly had not "experience[d] extraordinary and unusual pressures and tensions in his employment." The Commission stated that "Crowley's testimony established that Kelly's 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 Commission's 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. Early's 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
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.
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.
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.
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.
Both Fox and Wade also involved stress claims in which the employee's stress was ascribed to events in the workplace that others disputed. In Fox, the employee felt
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.
2. Consideration of the employee's perception
Kelly argues that the Board erred in its evaluation of Dr. Early's 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. Early's 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 claimant's perception of events. The statutory language required that work-related stress "be measured by actual events."
To interpret the former statute as prohibiting consideration of a claimant's 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 patient's response to a threat of death or serious injury "involved intense fear, helplessness,
But a worker's 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."
3. Extraordinary and unusual stress
To evaluate the Commission's conclusion that substantial evidence supported the Board's 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."
Comments by legislators during committee hearings on the bill containing the "extraordinary and unusual" requirement provide insight into the legislature's conception of what would qualify as "extraordinary and unusual"
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."
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 Crowley's testimony provided substantial evidence to support the Board's finding. It went on to say that its "review of the whole record reveal[ed] substantial evidence to support the board's 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 Crowley's 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."
Crowley's 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:
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
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."
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 Board's finding that Kelly's 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.
It is not necessary to remand to the Board for factual findings on the other elements of the compensability of Kelly's claim.
V. CONCLUSION
For the foregoing reasons, we REVERSE the decision of the Commission affirming the Board's 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.
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