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George Easley Co. v. Estate of John Lindekugel (07/22/2005) sp-5925
George Easley Co. v. Estate of John Lindekugel (07/22/2005) sp-5925
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
| GEORGE EASLEY CO., and
| ) |
|
PROVIDENCE WASHINGTON | ) Supreme Court
No. S-10851 |
|
INSURANCE COMPANY, | ) |
|
| ) Superior Court
No. |
|
Appellants, | ) 3AN-00-
3734 CI |
|
| ) 3AN-01-10464
CI |
|
v. | ) |
|
| ) AWCB Case No.
198100384/198101012 |
<
tr>
THE ESTATE OF JOHN | )
Consolidated | |
LINDEKUGEL, through its personal | )
|
|
representative, CHERYL | ) O P I
N I O N |
|
LINDEKUGEL, FLUOR ALASKA, | )
|
|
CIGNA, and THE ALASKA | ) [No. 5925
- July 22,
2005] |
|
WORKERS COMPENSATION | ) |
|
BOARD, | )
|
|
| ) |
|
Appellees. | )
|
|
________________________________ | ) |
|
|
|
|
Appeal from the
Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Michael L.
Wolverton, Judge.
Appearances: Patricia L. Zobel, Delisio
Moran Geraghty & Zobel, Anchorage, for
Appellants. William J. Soule, Law Office of
William J. Soule, Anchorage, for Appellee
Estate of John Lindekugel. Timothy A.
McKeever, Holmes Weddle & Barcott, Anchorage,
for Appellees Fluor Alaska, Inc. and CIGNA.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Fabe,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
The George Easley Company appeals the decision of the
Alaska Workers Compensation Board holding that it is liable for
John Lindekugels injuries and that it is not entitled to the
three offsets it sought from Lindekugels workers compensation
award. We affirm the boards finding that Easley is liable for
Lindekugels disability under the last injurious exposure rule and
its denial of Easleys petitions to modify the award.
II. FACTS AND PROCEEDINGS
A. Facts
John Lindekugel suffered two separate accidents while
working for two different employers. While working on the trans-
Alaska oil pipeline in August 1976 as an employee of Fluor
Alaska, Lindekugel fell off a ladder, landed on his lower back,
and struck his head against the ground. He was treated on an out-
patient basis for several months, and was later hospitalized for
two weeks for pelvic traction. In January 1977 Lindekugel
underwent a fusion of the cervical spine. In December 1977 and
March 1978 Dr. Edward Voke, who had previously treated Lindekugel
while he was hospitalized, performed additional surgeries on
Lindekugel.
In May 1979 Lindekugel and Fluor entered into a
settlement in which Lindekugel received $225,000 in exchange for
waiving all claims against Fluor except for future medical
benefits. For the purposes of the second injury fund only,1
$60,000 of the award was deemed to be payment for permanent
partial disability. Lindekugel began receiving social security
disability benefits in July 1977.
Lindekugel moved to Montana in August 1979. While in
Montana Lindekugel was not employed, but he planted a garden,
chopped wood, mowed the lawn, and remodeled his house, which
required light carpentry work. While in Montana Lindekugel
sought no medical attention for his neck or back. Lindekugel
testified that by September 1981 he was able to walk without
limping and had only minimal pain in his neck and back.
At the request of the Social Security Administration
(SSA), Dr. John Davidson examined Lindekugel on January 15, 1981
and took x-rays of his spine. Dr. Davidson concluded that,
although Lindekugel continued to experience some pain as a result
of his 1976 injury, he was physically capable of returning to
work. Shortly after the examination, Lindekugel received a
letter from the Disability Determination Bureau of Montanas
Department of Social and Rehabilitation Services. The letter
stated the bureaus preliminary opinion, based upon the
examination, that Lindekugel had the capacity to engage in medium
work activity.2 Accordingly, the bureau forwarded the records to
the SSA for a redetermination of Lindekugels eligibility for
benefits. The SSAs surgical consultant reviewed Dr. Davidsons
report and concluded that the injury sustained by Lindekugel in
August 1976 should not interfere with [work] of a light nature
where bending, lifting, and twisting can be controlled. On March
10, 1981 the SSA informed Lindekugel that he was able to do
substantial gainful work as of January 1981 and that his
entitlement to disability payments ended in March 1981.
Lindekugel returned to Alaska in August 1981 and began
work as a carpenter for the George Easley Company (Easley) in
October. The union hall had not asked whether he had any medical
restrictions, nor did he volunteer such information. While
working at Easley, Lindekugel was able to climb a ladder, set
scaffolding, and use typical carpentry tools without difficulty.
On October 8, 1981, having worked at Easley for seven
eight-hour days at the standard union rate of twenty dollars per
hour, Lindekugel tripped and fell onto a cement floor while
carrying a sheet of plywood. The plywood, which weighed
approximately seventy-five pounds, landed on Lindekugel, injuring
his back and right elbow.
Easley initially paid Lindekugel $21,655.85 in medical
benefits, but controverted the claim on October 29, 1981. In
February 1984 the SSA reinstated Lindekugels disability benefits
at a rate of $764 per month effective retroactively to April
1981. The SSA took an offset from Lindekugels $225,000
settlement with Fluor, prorating the settlement at $357.59 per
week. In the years following his accident at Easley, Lindekugel
was seen by numerous physicians to treat his back injury and its
consequences. Lindekugel was seen by Dr. Richard Nollmeyer for
pain in his legs and feet in July 1984. He was also treated with
a variety of pain medications by Dr. Curt Kurtz from 1985 to
1987. In 1986 Drs. Voke and Paul Dittrich performed back surgery
on Lindekugel.
B. Medical Testimony
Dr. Voke, the only doctor who had examined Lindekugel
before and after the Easley injury, testified that Lindekugels
physical condition as of October 8, 1981 (after the Easley
accident) was identical with . . . the years past and that
nothing substantially happened as a result of [the Easley]
injury. In a letter to Gil Johnson, Lindekugels former attorney,
Dr. Voke wrote I feel simply that all operative procedures and
his general condition are a direct result of his 1976 injury.
The last time Dr. Voke had seen Lindekugel before the 1981 injury
was in 1978, before Lindekugel moved to Montana. When Dr. Voke
issued this opinion, he believed that a classification of
permanent total disability (PTD) was immutable.
In Lindekugel v. George Easley Co.3 (Lindekugel II),4
we held that a PTD classification is not immutable, and we
remanded for the board to determine whether Lindekugels medical
condition had improved prior to his 1981 injury at Easley.5
Subsequent to this decision, Dr. Voke stated in a December 1999
affidavit that he believed that Lindekugel showed significant
improvement in [his] symptoms and range of motion since he was
seen . . . in 1978. He concluded that the 1981 injury was a
substantial factor in worsening Lindekugels condition. He also
stated that Lindekugel would not have needed the two back
surgeries performed after 1981 had it not been for the Easley
injury. In a deposition taken in March 2000 Dr. Voke maintained
his earlier position that the 1981 injury was an aggravation of
the 1976 injury and not a new injury, but did not renounce his
opinion that the Easley injury was a substantial factor in
Lindekugels post-1981 disability.
Several other physicians provided information
concerning Lindekugels condition over the years. In 1983 Dr.
Davidson testified that he believed that Lindekugel was not in
need of back surgery when he began work at Easley in 1981. Dr.
Davidson stated that the facts surrounding Lindekugels second
injury were consistent with, and confirmed his opinion that, the
Easley injury was a substantial factor in Lindekugels medical
condition and his need for additional surgical treatment.
In 1994 Dr. Nollmeyer expressed his opinion that: the
1981 injury was a cause of Lindekugels disability; the 1981
injury aggravated, accelerated, or combined with Lindekugels
prior injury; the 1981 injury was a substantial factor in
bringing about Lindekugels disability; and that, but for the 1981
injury, Lindekugel would not be disabled to the same degree. Dr.
Nollmeyer based his opinion on Lindekugels medical history, a
physical examination, and laboratory tests. Dr. Nollmeyer stated
with reasonable medical certainty that Lindekugel would not have
had [the] severe disability that he has today and the excessive
amount of medical expenses had it not been for the injury that he
sustained in October of [19]81.
In 1994 Dr. Kurtz testified that Lindekugel was
currently unable to return to work and that his disabling
condition was related to his 1981 injury at Easley. Dr. John
Diggs, who examined Lindekugel in 1991, testified that, based on
the examination and patient history, he did not believe that the
1981 injury was merely a temporary aggravation of the 1976
injury, because Lindekugel underwent additional surgeries after
the 1981 injury. But he also testified that he had no way of
knowing whether the 1981 injury was a new injury or an
aggravation of the 1976 injury.
C. Proceedings
In 1994 Lindekugel filed a complaint against his first
attorney, Gil Johnson, who had represented him in the 1979
settlement with Fluor. Lindekugel alleged that Johnson dismissed
Fluor from the case involving Easley without a determination of
liability, tried to approve a $45,000 settlement with Easley
which was rejected by the Alaska Workers Compensation Board
(AWCB) as being against Lindekugels interest, was evasive, and
had improperly delayed the case. The resulting settlement
between Johnson and Lindekugel provided for a payment of $75,000,
with the provision that Johnson would make an additional payment
up to the limits of Johnsons malpractice insurance policy if
either the decision of the board or of a reviewing court were
ultimately favorable to Easley.
The board first heard Lindekugels claim for temporary
total disability or permanent total disability benefits on
December 21, 1995. The board found that Dr. Davidsons testimony
raised the presumption of compensability, but that the
presumption was successfully rebutted by Dr. Vokes testimony that
Lindekugels condition was the direct result of his 1976 injury,
so that Lindekugel cannot expect to receive payment for a second
lifetime from a second employer. The superior court affirmed,
finding substantial evidence to support the boards determination
that Lindekugel had been seriously injured but once and that the
1981 injury was neither a substantial aggravation of the 1976
injury nor a legal cause of the disability.
We reversed and remanded on September 10, 1999.6
Relying on Ketchikan Gateway Borough v. Saling,7 we rejected the
boards conclusion that a second employer could not be held liable
for an injury based in part on its finding that the employee was
permanently and totally disabled prior to his employment.8
Although the board had used the proper legal standard to analyze
Easleys liability, it erroneously presumed the immutability of a
PTD determination and gave heavy weight to the testimony of Dr.
Voke, who testified that ones PTD status could never change.9
Upon remand, the board issued its decision finding
Easley liable under the last injurious exposure rule. The board
used the two determinations required by the court in Saling: (1)
whether the employment at the time of the second injury
aggravated, accelerated, or combined with the first injury, and
(2) whether the employment was a legal cause, i.e., a substantial
factor in bringing about the disability.10
The board found that Lindekugels testimony concerning
the 1981 injury, and the medical opinions of Drs. Nollmeyer,
Kurtz, and Diggs regarding the aggravation of Lindekugels injury,
successfully raised the presumption of compensability.11 The
board held that Easley had not rebutted this presumption of
compensability. The board found Easleys argument that Dr. Vokes
testimony rebutted the presumption of compensability to be
unpersuasive, finding instead that Dr. Voke clearly recognized
the employees injury at Easley as a substantial factor
aggravating and accelerating the employees disability and need
for additional treatment. The board also stated that, even if it
could find substantial evidence to rebut the presumption of
compensability, Easley was liable by a preponderance of the
evidence. The board cited the overwhelming preponderance of
medical testimony as the basis for its decision, particularly
the opinions of Drs. Voke, Nollmeyer, Kurtz, and Diggs. The
board ordered Easley to pay Lindekugel compensation at the rate
of $357 per week, interest on any unpaid benefits, $59,475 in
attorneys fees, and $3,447.32 in costs.
Easley filed a notice of appeal in October 2000 and
received a stay of judgment pending review by the superior court
in November 2000. Easley later filed three separate petitions
with the board seeking to modify the compensation award under AS
23.30.130(a) with offsets for the PTD disability payment from
Lindekugels social security benefits, the Fluor settlement, and
the legal malpractice settlement between Lindekugel and Johnson.
The petitions were filed respectively on February 9, March 20,
and April 4, 2001. The board held that it could not modify the
award because the order was stayed while on appeal. The board
also stated that, even if there were grounds for modification, it
would deny all three petitions on their legal merits because the
offsets Easley sought were not third party benefits under AS
23.30.015(h) and the Social Security disability benefits were for
Lindekugels 1976 injury.
The consolidated case was decided by Superior Court
Judge Michael L. Wolverton on October 15, 2002. Judge Wolverton
affirmed the boards finding that the 1981 injury was a legal
cause of Lindekugels disability and adopted the boards reasoning
to deny Easleys petitions for offsets on the merits. Easley
appeals.
III. STANDARD OF REVIEW
We independently review the merits of an agencys
decision when the superior court acts as an appellate court.12
Whether the board properly applied the last injurious exposure
rule is a question of law subject to our independent review.13 We
will uphold the boards factual determinations if they are
supported by substantial evidence.14 Substantial evidence is
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. 15
In reviewing agency determinations, we use the
reasonable basis test for questions of law involving agency
expertise and our independent judgment for questions of law where
no expertise is necessary.16 The determination of whether Easley
is entitled to the offsets is a question of law to which we apply
our independent judgment,17 adopting the rule of law that is most
persuasive in light of precedent, reason, and policy.18 We review
the boards denial of a petition for modification under AS
23.30.130(a) for an abuse of discretion.19
IV. DISCUSSION
A. The Boards Finding that Easley Is Liable to Lindekugel
Is Supported by Substantial Evidence.
In workers compensation cases, a statutory presumption
of compensability arises when the employee has produced some
evidence that the employment could have caused or aggravated the
employees injury.20 Under the last injurious exposure rule, when
an employee suffers two separate injuries while working for two
separate employers, full liability for the employees resulting
disability is imposed on the later employer when the second
injury is a legal cause of the disability.21 In order to impose
liability on the later employer two determinations must be made:
(1) that the second injury aggravated, accelerated, or combined
with a preexisting condition and (2) that the aggravation,
acceleration, or combination was a legal cause of the disability.22
When these two determinations are made we presume that the
disability is compensable by the second employer.23
The board concluded that Lindekugels testimony and the
medical testimony were sufficient to raise the presumption of
compensability, a conclusion which Easley does not contest. In
order to rebut the presumption, an employer must produce
substantial evidence that the injury was not work related.24 An
employer rebuts the presumption of compensability if it presents
substantial evidence that (1) provides an alternative
explanation, which, if accepted, would exclude work related
factors as a substantial cause of the disability; or (2) directly
eliminates any reasonable possibility that employment was a
factor in causing the disability.25 To rebut the presumption of
compensability Easley must present substantial evidence
establishing that either (1) the injury was not caused by
activities related to work at Easley; or (2) there was no
possibility that employment at Easley caused Lindekugels
disability.
To rebut the presumption of compensability, Easley
relied on Dr. Vokes 1981 opinion that Lindekugels disability did
not change as a result of the 1981 injury, that there was no
evidence that Lindekugel suffered a new injury, and that x-rays
showed no discernable change in Lindekugels physical condition
before and after the 1981 injury. This, of course, represented
Dr. Vokes original opinion that was largely the result of his
mistaken belief that a finding of PTD was immutable. The board
rejected Easleys argument and found that Dr. Voke clearly
recognized the employees injury at Easley as a substantial factor
aggravating and accelerating the employees disability and need
for additional treatment, and it noted that nothing in the record
provided substantial evidence to support Easleys claim that the
employee did not suffer work-related PTD, or to eliminate all
reasonable possibilities that Lindekugels disability was related
to his work with Easley.
Because the presumption of compensability shifts only
the burden of production and not the burden of persuasion, we
evaluate the employers rebuttal evidence independently of
causation evidence presented by the employee.26 We consider
whether Easleys evidence, viewed on its own, is such that a
reasonable person might rely on the evidence to conclude that
Lindekugels employment at Easley was not a legal cause of
Lindekugels subsequent disability.27
Although the presumption of compensability can be
rebutted by the testimony of a medical expert stating that the
employment was probably not a substantial cause of the employees
disability,28 no such testimony was provided in this case. In
1999 Dr. Voke stated that the Easley injury was a substantial
factor in Lindekugels post-1981 disability. He based his opinion
on his examinations of Lindekugel, a review of Lindekugels
medical record, and our holding in Lindekugel II. In a 2000
deposition he stated that he would change his 1999 affidavit to
reflect his position that the injury at Easley was not a new
injury, but rather an aggravation of the injury that Lindekugel
received at Fluor. However, under the last injurious exposure
rule, an employer can be liable whether its employees injury is
new or an aggravation of an earlier injury. If the injury at
Easley aggravated a prior injury, the only remaining question was
whether this injury was the legal cause of Lindekugels
disability.29 Although Dr. Vokes opinion of Lindekugels
disability changed over time, his 1999 affidavit clearly
recognized that the Easley injury was a substantial cause of
Lindekugels disability, an opinion that was reinforced by his
2000 deposition in which he amended his position to better
reflect his medical opinion that the Easley injury was an
aggravation of the Fluor injury.
Easley also argues that it is not liable because
Lindekugel failed to prove that he had substantially improved
following his classification as permanently totally disabled
after his injury at Fluor, either by demonstrating renewed
earning capacity or substantial improvement in his physical
condition. In Lindekugel II we noted that [d]ramatic
improvements in an employees condition would change his or her
[PTD] classification, as would a demonstration of a renewed
earning capacity.30 Easley uses that language to contend that an
employee must prove either renewed earning capacity or
substantial physical improvement in order to prove that he has
substantially improved. But we merely used those changes as
examples of how a permanent disability classification might
change, not as a substantive burden of proof. Although
substantial physical improvement and renewed earning capacity may
be the most relevant factors in determining whether an employee
has overcome his or her PTD status, Lindekugel II does not
mandate that the only way to overcome a PTD presumption is to
prove one or the other, as Easley argues. Lindekugels ability to
work at Easley before the accident, his activity in Montana, the
determination of the Social Security Administration, and the
medical opinions of Drs. Diggs, Nollmeyer, Kurtz, and Davidson
all provide substantial evidence to support the boards conclusion
that Lindekugels condition had improved dramatically by 1981.
Considering Dr. Vokes depositions and affidavits in
their entirety, we conclude that his testimony was insufficient
to rebut the presumption of compensability raised by Lindekugel.
A review of the record also leads us to concur with the boards
finding that no other substantial evidence rebuts the presumption
of compensability.31 We affirm the boards finding that Easley is
liable to Lindekugel under the last injurious exposure rule.
B. Offsets
Easley also contends that, even if this court upholds
the boards finding of liability, it is entitled to a modification
of the boards order by receiving offsets to Lindekugels
disability benefits. As noted above, Easley filed three separate
petitions with the board under AS 23.30.130(a)32 seeking offsets
to the PTD disability payment from Lindekugels social security
benefits, the Fluor settlement, and the legal malpractice
settlement between Lindekugel and Johnson. The board denied
Easleys petitions on the grounds that it did not have
jurisdiction to rule while the case was on appeal to the superior
court and, alternatively, that it would deny the petitions on
their merits.
On appeal Easley argues that it is entitled to
modification of the award under AS 23.30.130(a) because it
asserted a mistake of fact, notably the boards calculation of
Lindekugels compensation rate.33 We hold that AS 23.30.130(a)
does not apply to offsets sought from the benefits that
Lindekugel received from Fluor and Gil Johnson, as the resolution
of those issues turns upon alleged mistakes of law rather than
mistakes of fact. While Easleys claim that it was entitled to an
offset for Lindekugels SSDI award did present a question of fact
that the board could review under AS 23.30.130(a), its denial of
Easleys claim was not an abuse of discretion.34
A party to a workers compensation case has three
methods by which to pursue its position before the boards award
is final. The party may raise the issue in a pleading,35 petition
for review of all or part of the case within the time limits set
forth in AS 44.62.540,36 or, in the case of a factual mistake or a
change in conditions, it may ask the board to exercise its
discretion to modify the award at any time until one year after
the last compensation payment is made.37
Continuing jurisdiction over matters of workers
compensation is conferred upon the board by AS 23.30.130(a).38
This statute provides an exception to the common law doctrines
that prohibit the relitigation of factual issues, such as waiver
and res judicata.39 The boards power under AS 23.30.130(a) is
broad, giving it the discretion to review a compensation award
because of a change in condition or mistake in the determination
of a fact, even if the party cannot produce any new evidence on
the factual question at issue.40
The question presented by this case is whether AS
23.30.130(a) may be invoked by a party to request reconsideration
on the basis of mistakes of law that have allegedly led to an
incorrect rate of compensation. For the reasons explained below
we hold that it may not.
Alaska Statute 23.30.130(a) is substantially similar to
its federal counterpart, 33 U.S.C. 922 of the Longshoremens and
Harbor Workers Compensation Act.41 The United States Supreme
Court held that the federal Department of Labor has broad
discretion under 922 to correct mistakes of fact, whether
demonstrated by wholly new evidence, cumulative evidence, or
merely further reflection on the evidence initially submitted.42
But courts considering 922 have held almost uniformly that an
argument of error in legal analysis does not fall within the
scope of reconsideration on grounds of change or mistake of fact.43
Similarly, in McShea v. State, Department of Labor, we affirmed
the boards decision not to entertain a partys allegation of
factual error when the boards decision was legal, not factual.44
Alaska Statute 23.30.130(a) was never intended to be a
vehicle by which a party could raise errors of law or introduce
new evidence that the party, exercising due diligence, could have
introduced while the case was first before the board. As we have
previously held:
The concept of mistake requires careful
interpretation. It is clear that an
allegation of mistake should not be allowed
to become a back-door route to retrying a
case because one party thinks he can make a
better showing on the second attempt.[45]
The appropriate recourse for allegations of legal error is a
direct appeal or petition to the board for reconsideration of the
decision within the time limits set by AS 44.62.540(a). We thus
conclude that modification under AS 23.30.130(a) is not
appropriate when a party is seeking to adjust the compensation
rate based on an allegation that the board committed a mistake of
law.
This holding disposes of two of Easleys claims for
offsets.
Easley argues that it is entitled to an offset from
Lindekugels malpractice award from Gil Johnson because an
attorney from whom a worker receives a malpractice award
constitutes a third party under AS 23.30.015. Easley also seeks
an offset for payments Lindekugel received from Fluor, arguing
that, pursuant to our decision in Wagner v. Stuckagain Heights,46
Lindekugel cannot legally recover more than his maximum benefit
allowance at any given time. Because both of these claims raise
legal questions and do not allege a change in condition or a
mistake of fact, they are not grounds upon which modification may
be sought under AS 23.30.130(a).
Easleys claim for an offset from Lindekugels SSDI award
pursuant to AS 23.30.225 does allege a mistake of fact. Whether
Easley is entitled to an offset for Lindekugels SSDI payments
turns only on the resolution of a disputed fact whether the SSDI
payments were intended to serve as compensation for Lindekugels
condition resulting solely from the accident at Fluor without
considering the aggravating effect of the Easley accident and
does not involve the resolution of legal questions.47 But the
board resolved this question in favor of Lindekugel when it found
that Easley could not receive an offset from this award because
the SSDI payments were compensation for Lindekugels injury at
Fluor, not at Easley.48 Although questions remain as to the exact
reason why Lindekugels SSDI payments were reinstated, the fact
that they were made retroactive to April 1981, months before
Lindekugels injury at Easley,49 provided the board with a
permissible reason to deny the petition, given that no specific
facts50 contradicting the inference that the board drew from the
April 1981 retroactive date were introduced.
Because AS 23.30.130(a) vests the board with the
discretion to change or maintain the compensation award based on
a factual determination,51 we will reverse the boards denial of a
petition to modify an award under this statute only if the board
abused its discretion.52 For the above reasons, we conclude that
the board did not abuse its discretion in this case.
V. CONCLUSION
Because the board did not err in holding Easley liable
under the last injurious exposure rule, because Easleys
applications for offsets from the Fluor payment and the legal
malpractice award raise claims of legal error that are not
subject to modification under AS 23.30.130(a), and because the
board did not abuse its discretion in refusing to grant Easley an
offset from Lindekugels SSDI payments, we AFFIRM the decision of
the superior court.
_______________________________
1 If an employee suffers a compensable injury that
results in temporary total disability, temporary partial
disability, permanent partial disability, or permanent total
disability, the employer or its insurance carrier must contribute
a certain percentage of the employees compensation payments into
the second injury fund. AS 23.30.040. The purpose of the second
injury fund is to ensure that employers who hire workers with
compensable disabilities will not be financially liable for
certain preexisting conditions caused by injuries for which the
employee received compensation from another employer. AS
23.30.205; Employers Commercial Unions Ins. Group v. Christ, 513
P.2d 1090, 1093 (Alaska 1973).
2 In response to a later inquiry by Lindekugel regarding
his possible return to carpentry work, the bureau stated it
appears this would be possible according to the medical
information we have.
3 986 P.2d 877 (Alaska 1999).
4 We earlier had decided Lindekugels workers compensation
case involving Fluor. Lindekugel v. Fluor Alaska, Inc., 934 P.2d
1307 (Alaska 1997) (Lindekugel I).
5 986 P.2d at 881.
6 Lindekugel II, 986 P.2d 877.
7 604 P.2d 590 (Alaska 1979).
8 Lindekugel II, 986 P.2d at 879.
9 Id. at 881.
10 Saling, 604 P.2d at 597-98.
11 The board decided not to rely directly on Dr. Davidsons
medical records and affidavit because he was unavailable to
testify and the board believed it had enough evidence from the
other doctors.
12 Leuthe v. State, Commercial Fisheries Entry Commn, 20
P.3d 547, 550 (Alaska 2001).
13 Steffey v. Municipality of Anchorage, 1 P.3d 685, 689
(Alaska 2000).
14 Lindekugel v. George Easley Co., 986 P.2d 877, 879
(Alaska 1999).
15 Miller v. ITT Arctic Servs., 577 P.2d 1044, 1046
(Alaska 1978) (quoting Firemans Fund Am. Ins. Cos. v. Gomes, 544
P.2d 1013, 1015 (Alaska 1976)).
16 Handley v. State, Dept of Revenue, 838 P.2d 1231, 1233
(Alaska 1992).
17 Blanas v. Brower Co., 938 P.2d 1056, 1059 (Alaska
1997).
18 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
19 Hodges v. Alaska Constructors, Inc., 957 P.2d 957, 960-
61 (Alaska 1998) (noting that statute explicitly grants board
discretion to review compensation award).
20 Bouse v. Firemans Fund Ins. Co., 932 P.2d 222, 231
(Alaska 1997) (citing Providence Washington Ins. Co. v. Bonner,
680 P.2d 96, 98-99 (Alaska 1984)).
21 Ketchikan Gateway Borough v. Saling, 604 P.2d 590, 595
(Alaska 1979).
22 Id. at 597-98.
23 See Bouse, 932 P.2d at 234.
24 DeYonge v. NANA/Marriot, 1 P.3d 90, 95 (Alaska 2000).
25 Id. at 96.
26 Veco, Inc. v. Wolfer, 693 P.2d 865, 869-70 (Alaska
1985).
27 See id. at 872 (presumption of compensability can be
rebutted by evidence sufficient for reasonable person).
28 Big K Grocery v. Gibson, 836 P.2d 941, 942 (Alaska
1992).
29 See United Asphalt Paving v. Smith, 660 P.2d 445, 447
(Alaska 1983) (applying last injurious exposure rule).
30 Lindekugel v. Easley, 986 P.2d 877, 880 n.18 (Alaska
1999).
31 We note also that the evidence before us overwhelmingly
supports the boards finding that Lindekugel proved his claim by a
preponderance of the evidence.
32 AS 23.30.130(a) states:
Upon its own initiative, or upon the
application of any party in interest on the
ground of a change in conditions, including,
for the purposes of AS 23.30.175, a change in
residence, or because of a mistake in its
determination of a fact, the board may,
before one year after the date of the last
payment of compensation benefits under AS
23.30.180, 23.30.185, 23.30.190, 23.30.200,
or 23.30.215, whether or not a compensation
order has been issued, or before one year
after the rejection of a claim, review a
compensation case under the procedure
prescribed in respect of claims in AS
23.30.110. Under AS 23.30.110 the board may
issue a new compensation order which
terminates, continues, reinstates, increases,
or decreases the compensation, or award
compensation.
33 Lindekugel argues that Easley waived its right to seek
an offset to the award by failing to raise the issue in its
answer. He argues that under 8 Alaska Administrative Code (AAC)
45.050(c) Easley is barred from asserting any defense or related
claim if it has not raised the defense in its answer. We have
previously rejected the argument that a party is absolutely bound
by the substance of its responsive pleadings. Schmidt v. Beeson
Plumbing & Heating, Inc., 869 P.2d 1170, 1176 (Alaska 1994)
(waiver implied only when partys conduct shows intent to waive
and is inconsistent with any intention but waiver). The burden
that Lindekugel asks us to place on employers or insurers is
inconsistent with the rule that parties may amend pleadings at
any time before award upon such terms as the board or its
designee directs. Id. (citing 8 AAC 45.050(e)). We therefore
decline to find that Easley waived its right to assert an offset
to the award simply by failing to raise the issue in its answer.
34 Easley also argues that its petitions were initially
timely because the thirty day period upon which the board retains
jurisdiction to reconsider issues did not go into effect because
of the stay [issued by the superior court]. Easley claims that
it applied for the stay, and that the stay was granted, within
thirty days of the boards decision on September 28, 2000. The
record shows that on November 13, 2000, Easley was granted a stay
pending the superior courts review. The stay was granted with
regard to the lump sum award, but did not apply to ongoing
medical benefits or ongoing PTD. We do not need to address this
argument as it was not raised before the board or the superior
court and has been given only the most cursory of treatment on
appeal to this court. See Gates v. City of Tenakee Springs, 822
P.2d 455, 460 (Alaska 1991) (claims that are inadequately briefed
are waived). Moreover, the purpose of a stay of a workers
compensation award is to protect an employer from irreparable
damage caused by the claimants financial responsibility and the
probability that the employer would prevail on appeal, Wise
Mechanical Contractors v. Bignell, 626 P.2d 1085, 1087 (Alaska
1981), not to allow a party to raise new legal issues while the
case is on appeal.
35 8 AAC 45.050(c), (e).
36 Alaska Statute 44.62.540(a) enables the board to
reconsider all or part of a workers compensation case on its own
motion or the petition of a party. Such a petition must be
filed with the board within fifteen days after mailing or
delivery of the decision. The power to order reconsideration
expires thirty days after the decision has been delivered or
mailed, and if the board takes no action on a petition, it is
considered denied. AS 44.62.540(a).
37 AS 23.30.130(a).
38 See supra n.33.
39 See Sulkosky v. Morrison-Knudsen, 919 P.2d 158, 163
(Alaska 1996) (if board has power to rehear case and modify
compensation awards, doctrine of res judicata is inapplicable).
40 Interior Paint Co. v. Rodgers, 522 P.2d 164, 167
(Alaska 1974); Fischback & Moore of Alaska, Inc. v. Lynn, 453
P.2d 478, 485 n.23 (Alaska 1969).
41 Fischback, 453 P.2d at 483-84.
42 OKeeffe v. Aerojet-Gen. Shipyards, Inc., 404 U.S. 254,
256 (1971).
43 See, e.g., McDonald v. Dir., Office of Workers Comp.
Programs, 897 F.2d 1510, 1512 (9th Cir. 1990) (noting that relief
unavailable if requested solely on basis of change in law); Gen.
Dynamics Corp. v. Dir., Office of Workers Comp. Programs, 673
F.2d 23, 25 n.6 (1st Cir. 1988).
44 685 P.2d 1242, 1247 (Alaska 1984).
45 Interior Paint Co. v. Rodgers, 522 P.2d 164, 169
(Alaska 1974) (quoting 3 Arthur Larson, The Law of Workmens
Compensation 81.52, at 354.8 (1971)).
46 926 P.2d 456, 459 (Alaska 1996) (holding that employee
was not entitled to simultaneously receive payments for permanent
total and permanent partial disability because allowing such
recovery would possibly make it more profitable for him to be
disabled than to be well a situation which compensation law
always studiously avoids in order to prevent inducement to
malingering).
47 The 1984 letter from the SSA reinstating Lindekugels
benefits appears to have been first submitted to the board with
the petition for modification in 2001. If that is the case, then
absent an affidavit from Easley or its counsel stating why the
letter supporting its allegation of factual mistake could not
have been, with the exercise of due diligence, discovered and
produced at the time of the hearing before the board, the letter
cannot be considered as evidence upon reconsideration. 8 AAC
45.150(d)(2); Hodges v. Alaska Constructors, Inc., 957 P.2d 957,
961 (Alaska 1998).
48 Under AS 23.30.225 an employer is entitled to an offset
from a social security payment if the employee receives social
security disability benefits that are payable to the employee
because of an injury for which a claim was filed under AS 23.30.
AS 23.30.225(b). But because the statute does not apply to
injuries that took place before the statutes August 31, 1977
effective date, Caspersen v. Alaska Workers Comp. Bd., 786 P.2d
914, 915 (Alaska 1990), it does not apply to a social security
award compensating Lindekugel for his injury at Fluor, which
occurred in 1976.
49 The record shows that the SSA reinstated Lindekugels
benefits in February 1984 retroactive to April 1981. Lindekugels
injury at Easley occurred in October 1981.
50 As the board noted, its regulations require specific
facts to be alleged in petitions brought under AS 23.30.130. See
8 AAC 45.150(e).
51 See AS 23.30.130(a); 8 AAC 45.150(a); Interior Paint
Co. v. Rodgers, 522 P.2d 164 (Alaska 1974).
52 Hodges, 957 P.2d at 960-61.
