2007-049. Carl E. Kelly Appellant vs. State of Alaska Department of Corrections Appellee.

• Case Date: July 13, 2007
• Court: Alaska

Alaska Workers Compensation Decisions 2007. Workers' Compensation Appeals Commission 2007-049. Carl E. Kelly Appellant vs. State of Alaska Department of Corrections Appellee Alaska Workers' Compensation Appeals CommissionCarl E. Kelly, Appellant, vs. State of Alaska, Department of Corrections, Appellee.Decision No. 049 July 13, 2007AWCAC Appeal No. 06-030 AWCB Decision No. 06-0260 AWCB Case No. 199508871Final Decision Final Decision on appeal from Alaska Workers' Compensation Board Decision No. 060260, issued on September 26, 2006, by the southcentral panel at Anchorage, Rebecca Pauli, Chair, John A. Abshire, Member for Labor, Linda Hutchings, Member for Industry. Appearances: Joseph A. Kalamarides, Kalamarides and Lambert, for appellant Carl E. Kelly. Talis J. Colberg, Attorney General, and Joseph M. Cooper, Assistant Attorney General, for appellee State of Alaska, Department of Corrections.Commissioners: Stephen T. Hagedorn,Jim Robison,and Kristin Knudsen.This decision has been edited to conform to technical standards for publication. By: Kristin Knudsen, Chair. This appeal asks the commission to reverse the board's decision denying the employee's claim for permanent total disability due to mental illness caused by mental stress in the employment. We conclude the board's refusal to exercise its equitable powers to bar the employer from asserting a defense against the claim based on lack of compensability was not an abuse of the board's discretion. We conclude the board's admission, for limited purposes, of a record of a decision by another adjudicatory body was not an abuse of discretion. Because there is substantial evidence in light of the whole record to support the board's findings of fact, we affirm the board's denial of the claim. Finally, we decline to consider and adopt a rule, advocated by the appellant, that if the employee is the victim of conduct that may be defined as a crime, the employee necessarily suffers pressures and tensions in the employment that are "per se" extraordinary and unusual. Factual background. Carl Kelly was born in Alaska, raised in Ninilchik, and entered the U.S. Navy after graduation from high school.(fn1) After discharge from the Navy, he worked at a variety of jobs, including long haul truck driver, parts room manager, and air traffic controller. He also reenlisted in the Navy for a short tour during this period. In 1987 he applied, and was accepted, for a position as a correctional officer with the State of Alaska Department of Corrections. He attended the training academy, and was assigned to the Cook Inlet Pre-Trial Facility. Kelly was initially nervous around prisoners, but he obtained good evaluations. In 1992, according to Kelly, the number of younger inmates increased, and Kelly found it more stressful to deal with these inmates:

These young kids going into prison now don't care who they fight with, where they fight, what the fight is about. They will fight at the drop of a hat. . . . [T]he older ones, before we had the kids, there was little tension up until the time they got sentenced and maybe for a little bit after they were sentenced. You did not have the fights. . . . [W]e mixed the younger kids with the older population. The older population held them down. But then as we started getting more . . . kids in, they couldn't mix them as much, and that's when it got hard and I could not deal with it. (fn2)

Nonetheless, he continued to receive good evaluations, and was promoted to booking officer, which he performed on alternating weeks with rover and module officer duties. On April 12, 1995, Kelly reported feeling short of breath and as though his blood pressure was rising. He was taken to the hospital with chest pain complaints, and admitted. He filed a report of injury, dated May 5, 1995, in which he reported "chest pains, shortness of breath, high blood pressure, dizziness." The nature of the injury was reported as "angina." On May 10, 1995, Kelly's physician, internist Edward D. Brown, M.D., reported that Kelly was suffering from chest pain, hypertension, and borderline tachycardia; with "significant anxiety contributing and probably causing chest pain."(fn3) Dr. Brown referred Kelly to a psychiatrist, Dr. Matsutani, who diagnosed post-traumatic stress disorder.(fn4) Dr. Brown reported October 30, 1995 that Kelly was "unable to work due to the stress and recurrent episodes of chest pain that are manifestations of his posttraumatic stress disorder."(fn5) That same month, Kelly applied to the Division of Retirement and Benefits for occupational disability benefits under the Public Employees' Retirement System (PERS). In June of 1996, Corrections' adjuster sent Kelly to an evaluation by James Robinson, M.D., Ph.D., a rehabilitation medicine specialist and a psychiatrist.(fn6) Dr. Robinson's evaluation raised an issue of potentially heavy alcohol abuse, and he recommended that Kelly be evaluated by a specialist in that field. Dr. Robinson felt it was important to explore the possibility of alcohol dependence because the anxiety Kelly exhibited could be due to withdrawal rather than a psychiatric problem. He also noted that Kelly had a "history of chest pain possibly due to angina" and "hypertension." In September of 1996, Kelly was seen by Greg McCarthy, M.D., a psychiatrist at the Langdon Clinic.(fn7) Dr. McCarthy gave alcohol dependency, chronic back pain and hypertension as firm diagnoses, while suggesting that others (major depressive disorder, post-traumatic stress disorder, personality disorder) be ruled out. Like Dr. Robinson, he noted that Kelly's drinking history "colors most of his current, as well as past, psychological symptoms." He reported that many of his symptoms could be "a direct result of alcohol consumption." It was, Dr. McCarthy reported, "quite likely that he has had problems with drinking for some time, and that this predates difficulties at Cook Inlet Pretrial facility." Dr. McCarthy considered Kelly totally disabled, primarily as a result of his drinking.(fn8) About a year later, on September 25, 1997, Kelly was evaluated by Dan Marman, a therapist at Providence Breakthrough, a chemical dependency recovery program.(fn9) Mr. Marman reported that Kelly admitted to "drinking all week long" on his weeks off, and that his alcohol use progressively increased until he began "heavy drinking" after he was "put on workmen's comp." Kelly reported to Marman that he stopped drinking on October 23, 1996, and that he had abstained completely since then. Kelly also reported that the medication prescribed by Dr. Matsutani had been helpful, but "he has never received any counseling or psychotherapy for his PTSD condition." In December 1997, Dr. Robinson again examined Kelly.(fn10) He reported that the "validity of the evaluation was compromised" by the anger, irritability, and verbal abuse Kelly displayed toward Dr. Robinson. Dr. Robinson reported that Kelly "was clearly not interested in being cooperative." He also reported that Kelly told him he had not had any alcohol in the past 14 months, and he had no evidence otherwise. Dr. Robinson reported he agreed that Kelly was medically stable, but that, due to the "ongoinguncertainty with respect to his alcohol use until the very recent past," he was unable to date the time of medical stability. He roughly estimated Kelly was medically stable on the date of Marman's alcohol dependency evaluation (September 25, 1997). Dr. Robinson did not consider Kelly disabled from employment, but believed that vocational rehabilitation was realistic. He said that there was a significant risk that Kelly would be combative with supervisors and co-workers or again report disabling chest pain. It would not be reasonable to return him to work as a correctional officer because of his "interpersonal difficulties." Dr. Robinson also stated:

As noted above, I have no detailed information about Mr. Kelly's psychological functioning prior to his injury of 04/12/95. However, it appears that there has been a significant deterioration in his psychological functioning that is temporally related to on the job stresses in his work as a corrections officer. Thus, I believe he does have ratable impairment as a result of the industrial injury of 04/12/95.(fn11)

On February 27, 1998, Dr. Robinson reported a 12 percent permanent partial impairment of the whole man function.(fn12) Corrections paid the appropriate permanent partial impairment compensation, which ended on April 19, 1998.(fn13) Kelly was referred for reemployment benefits, and he was found eligible for benefits.(fn14) A plan was developed and training provided to return him to work as a computer technician. The adjuster and Kelly agreed to the plan.(fn15) Kelly received stipend benefits under AS 23.30.041(k) during the plan. After training, Kelly was placed in a job and on October 31, 2000, Corrections ceased stipend payments.(fn16) Meanwhile, Kelly had been denied occupational disability benefits under PERS and had appealed to the Public Employees' Retirement Board (Retirement Board). His appeal was heard on February 16, 2000.(fn17) The Retirement Board decided that Kelly's testimony was critical in respect of his statements to the board and his representations of his history to the physicians who base their determinations based on that history.(fn18) The Retirement Board must carefully assess Kelly's credibility; therefore it required "further factual information to test that credibility...