Workers' compensation case establishes mental injury rule

PERCEPTION: Supreme Court says trauma effect on claimant matters.

November 22, 2009 

A former prison guard at the Anchorage Jail who was threatened by a convicted murderer intoxicated on hair spray and armed with a sharpened pencil deserves workers' compensation for mental injury, the Alaska Supreme Court has ruled.

Carl Kelly, 60, suffered psychological health problems, maybe even post-traumatic stress disorder, from the 1994 confrontation, the court said.

The decision makes it clear that in mental health workers' compensation cases, it is not the event itself that matters and whether what happened is considered part of the job, but how the event is perceived by the individual.

"It's very significant," said longtime claimants attorney Chancy Croft, who was not involved in the case. "It makes it clear that the effect on the individual is important."

The state Department of Corrections had argued unsuccessfully that every prison guard expects a certain level of misbehavior from inmates and that Kelly's experience in jail was no different from that of other guards. But Kelly argued successfully that what happened went beyond what he expected from the job and beyond what a reasonable person would expect from the job, according to the court's decision last month.

The corrections officers' union was not involved in the case. A spokesman said the union read the Supreme Court's decision and supported it.

"It makes it clear that the ironworker that's on a 20-story building and sees the ironworker next to him fall to his death ... that there may be a claim for something like that," Croft said.

Alaska law allows claims for mental-stress injury as long as it is "extraordinary and unusual." But since the statute was written in 1988 it hasn't been clear what that meant. With the Kelly case the court clarifies the law, saying that what matters is that the confrontation was not just another day at work for Kelly.

The court referred the case back to the state's Workers' Compensation Board to decide if the injury's damage was temporary or permanent. Kelly has worked just one year in the 14 years since he left the Department of Corrections and claims an indefinite affliction, according to the ruling from the Supreme Court and people involved in the case.

If the board decides the damage was long-lasting, Kelly could recoup lost wages back to the early part of this decade, when his workers' comp benefits ended and he last worked. He could look forward to salary compensation potentially as long as he lives.

THE PENCIL INCIDENT

Kelly became a correctional officer in 1987 after a stint in the Navy and a series of jobs, including being a truck driver and air traffic controller, according to paperwork from the Alaska Workers' Compensation Appeals Commission.

In his testimony to the workers' comp board he said that in 1992, after five years of working at the Cook Inlet Pretrial Facility in Anchorage, work stresses increased because the state started housing more juveniles who had been waived into adult court and therefore adult jail. He said the teens were defiant, less likely to take orders from him, and more likely to fight each other.

He testified he was the lone "babysitter" for 12 to 48 prisoners in a housing unit at a time. Over the years, the work and detainees wore him down, he said. An inmate poured urine on his chair. An inmate bullied him repeatedly, telling him he knew where he lived and was going to find him after prison. Another inmate, Jacob Kochutin, serving 99 years for sexually assaulting, then murdering a 7-year-old boy on St. Paul Island in mid-1980s, threatened Kelly after he reported him for breaking the rules.

One day in 1994 Kelly was assigned to the unit where inmates with mental disorders are housed, according to the facts presented in the Supreme Court decision. Kochutin was there because the jail had run out of room in the normal segregation area. Kelly was the only guard, unarmed. Kochutin was intoxicated on hair spray and confronted Kelly with the sharpened pencil, according to Kelly's testimony. The prisoner said he was going to poke Kelly's eyes, blinding him, then stab him to death. Kelly was too scared to call for help, which finally arrived after he didn't answer calls on his radio, he testified.

Three weeks later, Kelly checked into a hospital with high blood pressure and chest pain. A physician said he was suffering from significant anxiety about his safety at work and his safety outside of work. He prescribed Kelly anti-depressant and anti-anxiety medication.

A month later, Kelly filed for temporary workers' compensation because of what he alleged was his mental injury caused by mental stress, a rare filing because most filings for workers' compensation in Alaska stem from physical injuries.

BATTLING THE STATE

For five years, Kelly received workers' compensation, which is generally about 80 percent of after-tax earnings, according to lawyers who handle workers' compensation cases. During this time, the state and Kelly agreed he would not go back to being a correctional officer. Kelly retrained as a computer technician, a job he would eventually hold only for one year, according to that former employer.

Kelly was seen by a series of psychiatrists, including ones hired by the state Department of Corrections to confirm the need for workers' compensation. The doctors didn't agree on the source of Kelly's anxiety and mental health problems. Did Kelly's reports of severe combat trauma during the Vietnam War leave him fragile? Was Kelly an alcoholic? Was Kelly drinking to self-medicate the PTSD? Or was the drinking an underlying problem?

In 2000, the state decided it would no longer pay workers' compensation, according to the Supreme Court ruling and other paperwork filed in the case. Kelly challenged the end of his payments. In 2002, Kelly escalated the case when he claimed he was permanently disabled and wanted permanent disability benefits because he could not return to work in any job, the paperwork said.

For the next four years, Kelly fought with the state over the workers' compensation. He saw more psychiatrists, and again, they came to conflicting conclusions, according to the court paperwork. In late 2004, the Workers' Compensation Board ordered an independent examination by a psychiatrist. That psychiatrist, Dr. Ron Early, concluded that Kelly had PTSD. Kelly "clearly identified his experiences as terrifying and psychologically traumatic to him," Early said. The doctor said Kelly was medically stable and could work, just not as a correctional officer.

He said Kelly's "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."

After years of wrangling, in May 2006 the Workers' Compensation Board held a hearing. Kelly testified that he had trouble sleeping. He said he kept a pistol in just about every room of his house because he lived in fear of a former prisoner coming after him. Once, after he saw a former inmate at a mall, he was an emotional wreck. He testified that he was concerned that he may shoot someone, according to the Workers' Compensation Board decision.

But the board sided with the state, saying Kelly's work stress was not unusual compared to other prison guards. The Alaska Workers' Compensation Appeals Commission came to the same conclusion.

Kelly appealed to the Alaska Supreme Court.

SHARPENED CHICKEN BONE

During the hearings, correctional officer Sgt. Martin Crowley testified on behalf of the Department of Corrections. He said that bullying behavior from inmates was normal; that he had received threats to himself and his family. He also had pencils and other objects pulled on him, he told the Workers' Compensation Board.

But the Supreme Court decided Kelly's pencil threatening went beyond the normal poor behavior of the prisoners -- it involved a deadly weapon, the pencil, and it occurred when no other officers were around. When Crowley told of the rare occasions where he was threatened with a sharpened pencil or sharpened chicken bone, he was in the presence of other guards, he testified. The danger wasn't viable, he said. The prison even recognized the Kochutin confrontation as unusual when administrators decided Kelly was never again to work in the same area as him, the Supreme Court said.

Kelly, who now lives in Ninilchik, would not say much about the case. "It's not open for discussion," he said when he answered his phone. "That's between me and the other party."

According to documents in a separate 2006 public records filing, Kelly at the time was living off $2,600 a month, mostly from long-term disability and some dividends from Cook Inlet Region Inc., an Anchorage Native corporation. It was not clear from the records who was paying the long-term disability or why.

His next hearing with the Workers' Compensation Board has not been scheduled.


Find Megan Holland online at adn.com/contact/mholland or call 257-4343.

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