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Lindhag v. State, Dept. of Natural Resources (10/07/2005) sp-5946
Lindhag v. State, Dept. of Natural Resources (10/07/2005) sp-5946
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
| TERESA M. LINDHAG,
| ) |
|
| ) Supreme Court No. S-
11370 |
|
Appellant, | ) |
|
| ) Superior Court
No. |
|
v. | ) 4FA-02-2597
CI |
|
| ) |
|
STATE OF ALASKA, | ) O P I
N I O N |
|
DEPARTMENT OF NATURAL | ) |
|
RESOURCES, | ) [No.
5946 - October 7,
2005] |
|
| ) |
|
Appellee. | ) |
|
| ) |
|
|
|
|
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Raymond M. Funk, Judge pro tem.
Appearances: Michael A. Stepovich, Fairbanks,
for Appellant. David D. Floerchinger,
Assistant Attorney General, Fairbanks,
Kristin S. Knudsen, Assistant Attorney
General, Anchorage, and Gregg D. Renkes,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
The Alaska Workers Compensation Board rejected Teresa
Lindhags request for benefits for certain medical problems
allegedly caused by toxic exposures suffered while working in a
new state office building. Ms. Lindhag appeals two of the boards
orders: the first denied benefits to Lindhag and the second
denied Lindhags petition for rehearing and modification based on
newly discovered medical evidence. Because the first order is
supported by substantial evidence, and because the second order
correctly concluded that Lindhag failed to allege a mistake in
fact or change in condition to warrant a new hearing, we affirm.
II. FACTS AND PROCEEDINGS
A. Factual History
In 1988 Teresa Lindhag worked as a Clerk Typist for the
Alaska Department of Natural Resources (DNR), in Fairbanks. In
May 1988 her division moved into a new office building. As
stated by the superior court:
She began to experience illness shortly after
the move into the new building. Several
other DNR employees complained about the poor
air quality in the building. By August 1988,
Ms. Lindhags symptoms included chest pain,
difficulty breathing, hoarseness, coughing,
congestion, muscle aches, stiff neck, blurred
vision, headaches, nausea, vomiting,
diarrhea, runny nose and eyes, fatigue, and
loss of memory. She began to suspect a
connection between her symptoms and her work
in the building.
She reported that each time she reentered the work area, her
symptoms returned, and more rapidly each time. Her treating
physician, Dr. Steiner, agreed that the building was exacerbating
if not causing her symptoms and removed Lindhag from the
workplace by the end of October 1988.
Prior to leaving, Lindhag had filed a notice of
occupational injury, which resulted in the state paying Lindhag
$230.27 weekly in temporary total disability. (These payments
continued from October 1988 to July 1997.) In November 1988 the
Alaska Division of Occupational Safety and Health evaluated the
buildings air quality and ventilation system. The evaluation
found a multitude of building problems and chemical and fume
exposures, including the fact that the ventilation system was not
operating properly. However, the amount of chemicals present at
time of measurement was within the permitted regulatory levels.
Lindhag continued to experience symptoms after leaving
her employment. She also became sensitive to ordinary chemicals,
like hair spray, perfume, and car fumes. In November 1988 she was
diagnosed for the first time with asthma. In February 1989 Dr.
Stewart, an Anchorage pulmonologist, diagnosed Asthmatic
bronchitis with sick building exposure as a possible inciting
event. Dr. Stewart examined Lindhags blood and found low
eosinophil1 levels, which suggested that Lindhags suffering did
not come from an allergic reaction or a parasitic infection. Dr.
Baker, a Seattle allergist, examined Lindhag in January 1990. He
attributed Lindhags problems to sick building syndrome and also
suggested (without formally diagnosing) that Lindhag might suffer
from Multiple Chemical Sensitivity Syndrome (MCSS). In January
1991 Dr. Wong-Ngan performed a psychological evaluation of
Lindhag and found that she was not malingering and that her
symptoms were consistent with other chemical sensitivity
patients.
In May 1997 an employer-sponsored independent medical
evaluation (EIME) was performed by Dr. Arora. Dr. Arora
concluded that Lindhag did not have a cognitive disorder and that
her respiratory problems were not work-related. Accordingly, in
July 1997 the employer controverted Lindhags entitlement to
benefits.
The Alaska Workers Compensation Board appointed Dr.
Allene Scott to perform a second independent medical evaluation
(SIME). Dr. Scott obtained assistance from at least six
specialists in conducting her evaluation. In June 1998 Dr. Scott
concluded that Lindhag had a number of medical conditions, but
that no condition could be linked, within a reasonable degree of
medical certainty, to her toxic exposures during employment. For
example, she concluded that the likely primary contributing
factor behind Lindhags sinusitis and rhinitis was her allergy to
common household dust mites. (Lindhag tested positive for this
allergy in an intradermal allergy test performed by Dr. Scott.)
She concluded that Lindhag had suffered from asthma prior to the
office move. She also found no evidence of sick building
syndrome, and found that any diagnosis of MCSS would have been
inappropriate, in part because Lindhag had suffered similar
symptoms prior to the exposure.2 Finally, Dr. Scott expressed
uncertainty on Lindhags neurological symptoms and recommended a
PET scan and further diagnostic testing.
Dr. Wu completed the PET scan and found the results
consistent with encephalopathy associated with toxic exposure.3
Another doctor concurred. Accordingly, in October 1999 Dr. Scott
amended her opinion and found that Lindhags exposure to chemicals
while working for DNR had caused toxic encephalopathy. Her
opinions about the non-encephalopathic symptoms remained
unchanged.
Lindhag had Dr. Scotts initial report reviewed by
another expert, Dr. Heuser, in April 1999. After reviewing
medical records, Dr. Heuser concluded that (1) toxic
encephalopathy was present; (2) workplace exposures significantly
aggravated conditions like bronchitis and asthma; and (3)
exposures caused significant chemical injury, including sick
building syndrome and eventually MCSS.
B. Proceedings
Based on Dr. Scotts opinions, the state agreed to pay
benefits for Lindhags encephalopathic symptoms. However, the
issue of benefits for non-encephalopathic symptoms went before
the board. The employer relied on evidence from the SIME
physician, Dr. Scott. Lindhag relied on testimony by her
treating physician, Dr. Steiner, and toxicology consultant, Dr.
Heuser.
The board issued its order on May 8, 2000, denying
Lindhags claim for non-encephalopathic-related benefits. It
reached this conclusion after utilizing the three-part analysis
for determining whether an employees claim is compensable:4 It
first found that Lindhag established a preliminary link that the
exposures substantially caused her medical conditions, which
created the presumption of compensability. It then found that
the state successfully rebutted this presumption by presenting
substantial evidence that the disability was not work-related.
Finally, it concluded that Lindhag failed to prove her claim by a
preponderance of the evidence. The board found that the
exposures caused merely a temporary aggravation of a pre-existing
condition, and the persisting conditions were caused by non-work-
related factors, including dust mites.
The board also commented on its reliance upon the
expert witnesses:
In reaching this conclusion, we rely
primarily upon Dr. Scotts experience and
expertise as our SIME physician and on the
exhaustive nature of her evaluation of the
employee, as well as her firm understanding
of the voluminous medical records.
Consequently, we will give the most weight to
the reports and testimony of our own
independent expert when assessing the
preponderance of the evidence. In sum, we
find our second independent medical
evaluators opinions the preponderance of the
evidence and make our findings and
conclusions accordingly.
First, we recognize Dr. Scott based her
conclusions about the nature and likely
causes of the employees conditions upon a
reasonable degree of medical certainty. She
acknowledged her review of approximately 800
pages of medical records regarding the
employees conditions. Moreover, her report
makes specific reference to those medical
records where appropriate. Thus, we find it
is clear that Dr. Scotts opinions
incorporated both a comprehensive and a
current understanding of the employees
relevant medical history. We find her
opinions are fully supported by the other
unbiased experts, and are preponderant
evidence supporting findings that the
employees only current work-related condition
is encephalopathy.
Based on our review of the record, we
find Dr. Scott had a clearer and more
complete picture of the employees medical
history than Dr. Heuser or even Dr. Steiner.
(Emphases added.) Along these lines, the board also noted
factual inaccuracies in Dr. Heusers report and evidence that Dr.
Steiner lacked a firm grasp on the case history and had no formal
training in environmental medicine and occupational illness.
Lindhag appealed the boards decision to the superior
court, but then filed a motion for stay of appeal in order to
first petition the board for modification. The superior court
granted the stay, and a petition for rehearing and modification
followed. Pursuant to AS 23.30.130(a) and 8 Alaska
Administrative Code 45.150(d), Lindhag alleged mistake of fact
and change in conditions to warrant a rehearing. Her petition
was primarily based on newly discovered evidence regarding her
lack of allergic reaction to dust mites. The board denied the
motion on September 3, 2002, finding that Lindhag made no showing
of due diligence and was impermissibly attempting to retry her
claim.
Lindhag next filed a petition for reconsideration,
which was denied. Lindhag then appealed to the superior court,
which consolidated review of the order denying benefits with the
order denying a rehearing. The superior court affirmed both
orders. Lindhag appeals.
III. STANDARD OF REVIEW
When the superior court acts as an intermediate court
of appeals, we independently review the merits of the
administrative determination.5 We review the determinations of
fact by an administrative agency under the substantial evidence
standard.6 Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.7
On review we will not reweigh conflicting evidence, determine
witness credibility, or evaluate competing inferences from
testimony because those functions are reserved to the Board.8
Thus, even when conflicting evidence exists, we uphold the Boards
decision if substantial evidence supports it.9
Review of an agencys application of its own regulation
to the facts is limited to whether the agencys decision was
arbitrary, unreasonable, or an abuse of discretion.10
IV. DISCUSSION
The Alaska Workers Compensation Act creates a
presumption that an employees claims are compensable. Applying
this presumption involves a three-step analysis:11
First, the employee must establish a
preliminary link between the injury and the
employment. This step of the analysis
requires consideration of only evidence that
tends to establish the link. . . . In the
second step, we inquire whether the employer
rebutted the evidence with substantial
evidence that either (1) provides an
alternate explanation which, if accepted,
would exclude work related factors as a
substantial cause of the [injury]; or (2)
directly eliminates any reasonable
possibility that employment was a factor in
causing the disability. . . .
As a third step, once the employer has
rebutted the presumption that the injuries
are work related, the employee can prevail
only if he proves his claim by a
preponderance of the evidence.[12]
To prove a claim by a preponderance of the evidence, the employee
must induce a belief in the trier of fact that the asserted facts
are probably true.13 As discussed above,14 the board applied this
test and concluded that, under the third step, Lindhag failed to
prove her claim by a preponderance of the evidence. It relied on
SIME Dr. Scotts expert opinion and concluded that Lindhags work
was not a substantial cause of her non-encephalopathic
conditions; rather, the conditions were deemed a product of non-
work-related factors and were only temporarily aggravated during
her employment.
A. The Boards Findings Were Supported by Substantial
Evidence.
Lindhag contends that we should reverse the boards
findings for two reasons. First, Lindhag claims that the boards
written findings were insufficiently detailed to support its
conclusions. Second, she argues that substantial evidence did
not support the boards finding that her non-encephalopathy
related problems were caused by non-work related factors,
including dustmites because the board failed to review the whole
record. Specifically, Lindhag complains that the board failed to
adequately consider three facts: (1) post-employment asthma
diagnosis; (2) eosinophil and antibody testing; and (3) post-
hearing dust mite evidence.
1. The boards written findings are sufficiently
detailed to support its conclusions.
Lindhag claims that the boards written findings do not
provide adequate detail to support its conclusions. We disagree.
An administrative agency must make findings of fact and
conclusions of law regarding all issues that are both material
and contested.15 If these findings or conclusions are insufficient
to permit intelligent appellate review, we will remand the case
to the agency for further deliberation.16 Findings are adequate
to permit appellate review when at a minimum, they show that the
Board considered each issue of significance, demonstrate the
basis for the Boards decision, and are sufficiently detailed.17
Lindhags argument that the board made insufficient
factual findings is unconvincing. The boards order first recites
the factual history of the case at length, including some of the
facts that Lindhag alleges were not adequately considered e.g.,
that an asthma diagnosis had not specifically been made before
the employment, and that Dr. Stewarts blood testing revealed few
eosinophils present. Next, the board in its conclusions of law
applied the three-part presumption analysis, as described above,
in reaching its conclusion that Lindhag did not prove her claim
by a preponderance of the evidence.
In deciding whether Lindhag met her burden of proof,
the disputed issues hinged solely on the opinions of medical
experts who evaluated Ms. Lindhag and her medical history. Thus,
the board was required to weigh the testimony of Dr. Scott
against the testimony of Drs. Steiner and Heuser. The board
explicitly accepted Dr. Scotts testimony over Lindhags witnesses,
finding that Dr. Scott had a clearer and more complete picture of
Lindhags medical history, and that Dr. Steiner lacked training in
environmental medicine and occupational illnesses and Dr. Heusers
report contained factual inaccuracies.18
This explanation is sufficient to support the boards
decision to favor one witnesss testimony over anothers. Under
the substantial evidence standard of review, we will not choose
between conflicting medical testimony if the decision below is
supported by substantial evidence.19 Additionally, the Workers
Compensation Act grants the board the sole power to determine
witness credibility: A finding by the board concerning the weight
to be accorded a witnesss testimony, including medical testimony
and reports, is conclusive even if the evidence is conflicting or
susceptible to contrary conclusions.20 The board concluded that
Dr. Scotts testimony provided substantial evidence on which to
base its decision, and we agree: Dr. Scott was the most qualified
expert at trial, she was appointed by the board to perform an
independent medical examination, she enlisted the assistance of
several experts in reaching her conclusions, and her medical
opinions were thorough and internally consistent. Because the
record reflects that Dr. Scotts testimony constituted substantial
evidence, we conclude that the board did not err in placing its
reliance upon Dr. Scotts testimony, and that the written order
justifying the boards decision was not deficient.
2. The boards failure to expressly discuss certain
medical evidence does not justify reversal.
Lindhag specifically complains that three factual
points were not adequately considered by the board. These points
come from Lindhags medical testimony and support her theory of
the case. Because the board explicitly relied on Dr. Scotts
testimony, it is not fatal that the board failed to exhaustively
describe and then dismiss each opinion of Lindhags medical
experts the conclusions of those experts were rejected in toto.
The boards finding that Dr. Scotts testimony was the most
credible supports its conclusion that substantial evidence
favored the employer and that Lindhag failed to carry her burden.
As an examination of the three factual points raised by Lindhag
shows, whatever support the three points might have lent to her
case, Dr. Scotts testimony provided at least equally plausible
alternative explanations on each point.
First, Lindhag argues that she was never diagnosed with
asthma until after her exposure to toxins while employed by DNR
in 1988 and that the Boards decision reflects no deliberation on
this matter. But the board noted its awareness of this fact,
and Lindhags argument runs afoul of the post hoc ergo propter hoc
logical fallacy: just because the asthma diagnosis came after the
exposure does not mean that the exposure caused the asthma.
Indeed, the board accepted Dr. Scotts findings that the exposure
did not cause the asthma. Dr. Scott concluded:
Therefore, it is my opinion, within a
reasonable degree of medical certainty that
Ms. Lindhag experienced some aggravation of
her hyper-reactive airway problems. It is
common for individuals with asthma and
allergic rhinitis to be particularly
susceptible to a variety of irritants . . .
expected to be present in a new office
building. However, since the patient clearly
had the upper airway problems as well as
reactive airway disease (asthma) prior to
moving into the building, I do not think that
any persistent asthma symptoms can be
reasonably related to that exposure.
(Emphasis added.) The board did not err in following this
conclusion.
Second, Lindhag points to evidence regarding eosinophil
and antibody testing. If eosinophil levels in the blood are
abnormally high (eosinophilis), an individual may be suffering
from allergic or parasitic disorders. Lindhags blood test
revealed low eosinophil levels. In the words of Dr. Steiner, I
dont want to call it a lousy test. Its not a very specific test.
So the absence of eosinophils doesnt tell me its not asthma, but
it may suggest that its not due to an allergic basis. While
Lindhags eosinophil testing suggested that her symptoms may have
lacked an allergic basis, Lindhags intradermal allergy testing
with Dr. Scott revealed an allergic reaction to dust mites. This
testing, along with other factors, led Dr. Scott to conclude that
Lindhags sinusitis was likely caused by common household
allergens, including dust mites, and that her asthma existed
prior to her exposures with DNR. Thus, we cannot conclude that
the board erred in favoring Dr. Scotts allergy testing over the
inconclusive eosinophil test results.
With respect to antibody testing, Lindhag points to
preliminary testing which showed positive IgG antibodies to
Trimellitic Anhydride (TMA), an industrial chemical found in
items such as carpet adhesive that can possibly cause respiratory
disease and asthma. However, Dr. Scott and one of her
specialists, Dr. Fireman, opined that the presence of IgG
antibodies indicated exposure to TMA, but not necessarily any
adverse reaction to it. According to their opinion, the relevant
antibody to determine hyper-sensitization, or adverse reaction,
is IgE and the preliminary tests showed that Lindhags IgE levels
were normal. In addition, the testimony suggested that the
completed antibody testing was inadequate Dr. Scott described it
as not being clinically interpretable. Dr. Scott went on to
testify that more testing along these lines would not have
changed her opinion, and that there was no clinical justification
to perform more testing. In Dr. Scotts words, All the IgE
antibody testing, if, in fact, it was confirmed, would indicate
[is] that at some time she had been exposed to it. In any case,
Lindhags physicians had requested more conclusive testing, but it
remained uncompleted because the serum specimen was no longer
available. Lindhag bears the burden of proving her claim, and
the lack of more conclusive antibody evidence is her own failure
of proof. The board did not err in following Dr. Scotts
opinions.21
Third and finally, Lindhag points to the evidence
obtained after the hearing that allegedly disproved the boards
finding that a dust mite allergy may have contributed to her
symptoms.22 Whatever the merits of this newly discovered
evidence, it plays no role in the question of whether the boards
decision was supported by substantial evidence. The board cannot
be expected to deliberate on evidence that was not presented at
the hearing. For these reasons, we affirm the boards denial of
benefits for non-encephalopathic conditions.
B. The Board Did Not Abuse Its Discretion in Denying
Lindhags Petition for Modification.
Lindhag also contends that the board abused its
discretion in denying her petition for rehearing and
modification. Alaska Statute 23.30.130(a) permits the board to
rehear and modify a compensation case [u]pon its own initiative,
or upon the application of any party . . . on the ground of a
change in conditions . . . or because of a mistake in its
determination of a fact. The board exercises its discretion in
deciding whether to grant a rehearing.23 Lindhag alleges both a
mistake in fact and a change in conditions based upon new medical
information. We disagree.
The board agreed with Dr. Scott that a dust mite
allergy could be a contributing factor for her sinusitis and
rhinitis conditions. As mentioned above, Dr. Scotts intradermal
allergy testing of Lindhag indicated an allergic reaction to dust
mites (D pteronyssinus), which led Dr. Scott to conclude that
dust mites were likely . . . the primary contributing factor to
her sinus inflammation and rhinitis. Because Dr. Scott deemed
the sinusitis and rhinitis to be chronic and pre-existing, she
concluded that exposure during employment may have temporarily
aggravated these conditions, but that [n]one of her
sinus/rhinitis problems since June 14, 1990, within a reasonable
degree of medical certainty, are related to the time she worked
in the new DNR building. Dr. Scott did not link the suspected
dust mite allergy to any of the other conditions suffered by
Lindhag, such as asthma.
Shortly after the issuance of the boards order, Lindhag
had experts perform a blood test and analyze her home. Lindhag
claims that this evidence was a product of her continuing
treatment with her doctors. The blood test revealed that the
levels of certain antibodies in Lindhags blood were too
insignificant to support a claim of asthma caused by dust mite
allergy. In addition, Dr. J. Timothy Foote found no detectable
dust mite allergen in the sample from Lindhags bed. Dr. Steiner
accordingly reasoned that [c]laims of asthma due to dust mite
allergies are refuted by this test. This new evidence, if
correct, would directly contradict Dr. Scotts conclusion that the
dust mite allergy may have been a contributing factor to Lindhags
chronic sinusitis and rhinitis, which was accepted and relied
upon by the board.
1. Mistake of fact/due diligence
Lindhag first argues that the newly discovered dust
mite evidence results in a mistake of fact in the original
decision. The governing administrative regulation elaborates:
A petition for a rehearing or modification
based on an alleged mistake of fact by the
board must set out specifically and in detail
(1) the facts upon which the original
award was based;
(2) the facts alleged to be erroneous,
the evidence in support of the allegations of
mistake, and, if a party has newly discovered
evidence, an affidavit from the party or the
partys representative stating the reason why,
with due diligence, the newly discovered
evidence supporting the allegation could not
have been discovered and produced at the time
of the hearing; and
(3) the effect that a finding of the
alleged mistake would have upon the existing
board order or award.[24]
The key language in this regulation is the requirement that new
evidence could not have been discoverable prior to the hearing
through due diligence. This requirement is nearly identical to a
requirement that we adopted for motions for a new trial and
motions for relief from judgment based on newly discovered
evidence.25 This requirement is fair because an allegation of
mistake should not serve as a back-door route to retrying a case
because one party thinks he can make a better showing on a second
attempt. 26 Our review of an agencys application of its own
regulation is limited to whether the decision was arbitrary,
unreasonable, or an abuse of discretion.27
The affidavit by Lindhags attorney attempted to make
out an argument for due diligence. It claimed that such dust
mite testing prior to the hearing, was never considered by myself
or Ms. Lindhag. It noted that the report could not have been
produced at the time of hearing because there was no such report
to produce in other words, because the evidence did not yet
exist. It went on to suggest that the testing was ultimately
performed as a result of the normal interaction between the
employee and her doctor, and not merely in reaction to the
reasoning of the board in its order.
The board found this affidavit unpersuasive because it
failed to establish any reason why this evidence could not have
existed at the time of hearing, as required by due diligence.
Lindhag was on notice of Dr. Scotts opinion regarding her dust
mite allergy as early as June 1998 almost two years before the
hearing. Dr. Scott reaffirmed her opinion in October 1999. At
the hearing, Lindhags attorneys attacked Dr. Scotts conclusion
regarding dust mites. Lindhags briefing speculated that the dust
mite is quite possibly not found in Alaska, and Lindhag put forth
contrary medical testimony finding that Lindhag does not suffer
from an allergic reaction to dust mites. As described above, the
board rejected Lindhags testimony in favor of Dr. Scotts
testimony.28 Despite her two-year notice that the primary medical
expert and SIME physician, Dr. Scott, relied on a positive test
result for dust mite allergy in reaching her unfavorable
conclusion, Lindhag failed to obtain more conclusive testing
until immediately following the adverse board decision.
The board found that the absence of these test results
prior to its decision can only be considered a tactical choice by
Lindhag and her counsel. Accordingly, it found that Lindhag
impermissibly sought to retry her claim and rejected her
petition. It found that the affidavit established only that the
new evidence was not developed prior to the hearing, not that it
could not have been developed, which is what due diligence
requires. Given that Lindhag offered no reason why the evidence
could not have been obtained, that she had two years notice to
seek rebuttal evidence, and that she did attack Dr. Scotts
opinion on this point at the hearing albeit in a less-effective
manner we conclude that the board did not abuse its discretion
in finding that this post-hearing evidence was not presented with
due diligence.
2. Change in conditions
Lindhag argues in the alternative that the new medical
testimony presents a change in conditions. To obtain a rehearing
on these grounds, a petition must set out in detail the history
of the claim and the nature of the changed conditions; a bare
allegation of change of conditions . . . without specification of
details sufficient to permit the board to identify the facts
challenged will not support a request for a rehearing or
modification.29
While Lindhag asserts a change in conditions, the bulk
of her argument focuses on a mistake in fact, as discussed above.
Her treatment of change in conditions fails to go beyond a bare
allegation. Moreover, it is not clear that any condition in this
case has actually changed.30 Her physical and economic
conditions, in fact, have remained unchanged; it is the medical
knowledge regarding the cause or source of those conditions that
may have changed. We conclude that this is not the kind of
change envisioned by the workers compensation statute governing
modifications.
Blacks Law Dictionary defines change in conditions for
workers compensation actions as: substantial worsening of an
employees physical health occurring after an award, as a result
of which the employee merits an increase in benefits.31 A number
of states have strictly confined the meaning of change in
conditions in this realm to a change in physical condition.32
Other states have been more expansive: They have also found
change in conditions where an economic change has adversely
affected a claimants ability to get or hold employment, or to
maintain his earlier earning level.33 We have not ruled on this
question,34 and we need not today Lindhags dust mite evidence
presents neither a physical nor an economic change. Rather than
properly alleging a change in condition, Lindhag merely alleges a
different cause or source for the same unchanging condition.
Such an allegation is insufficient under the boards regulation
governing modifications.
Moreover, an alleged change in conditions cannot be
used to retry original issues.35 Upon reopening a claim due to
change in conditions, the issue before the Board is sharply
restricted to the question of extent of improvement or worsening
of the injury on which the original award was based.36 In other
words, neither party can raise original issues such as work-
connection, employee or employer status, occurrence of a
compensable accident, and degree of disability at the time of the
first award.37 Here, Lindhag is introducing new evidence for
proof of causation, to support the notion that her injury is work-
related. This is an original issue not contemplated by change-in-
conditions modification. Thus, the board did not abuse its
discretion in denying Lindhags request for modification on these
grounds.
3. Due process
Finally, Lindhag makes a cursory argument that denial
of her petition for rehearing deprived her of her due process
rights.38 Because we will not consider an issue given only a
cursory statement in the argument portion of a brief,39 we decline
to consider whether Lindhags due process rights were violated.
V. CONCLUSION
Because the boards denial of benefits to Lindhag for
non-encephalopathic conditions was supported by substantial
evidence, and because the board did not err in rejecting Lindhags
petition for modification, which presented new evidence without
due diligence and which failed to offer any evidence of a change
in her condition, we AFFIRM the superior court decision upholding
both orders by the board.
_______________________________
1 An eosinophil is a leukocyte [white blood cell] or
other granulocyte with cytoplasmic inclusions readily stained by
eosin. Websters Third New Intl Dictionary 760 (1993). It has
distinctive antiparasitic functions. Stedmans Medical Dictionary
860 (25th ed. 1990).
2 In reaching this conclusion, Dr. Scott relied on a
commonly used definition of MCSS, which states that the diagnosis
is only proper when the symptoms did not exist prior to the
documented exposure.
3 Encephalopathy is any disease of the brain. Stedmans
Medical Dictionary 508 (25th ed. 1990).
4 See infra n.12 and accompanying text.
5 Bradbury v. Chugach Elec. Assoc., 71 P.3d 901, 905
(Alaska 2003).
6 Id.
7 Id.
8 Robinson v. Municipality of Anchorage, 69 P.3d 489, 493
(Alaska 2003).
9 Bradbury, 71 P.3d at 905.
10 Hodges v. Alaska Constructors, Inc., 957 P.2d 957, 960
(Alaska 1998).
11 Bradbury, 71 P.3d at 905; AS 23.30.120(a).
12 Robinson, 69 P.3d at 494 (quoting Temple v. Denali
Princess Lodge, 21 P.3d 813, 816 (Alaska 2001) (citations
omitted)).
13 Bradbury, 71 P.3d at 906.
14 See supra Part II.B.
15 Bolieu v. Our Lady of Compassion Care Ctr., 983 P.2d
1270, 1275 (Alaska 1999) (The Board need only make findings with
respect to issues that are both material and contested. . . .
When the Board fails to make a necessary finding, we cannot fill
the gap by making our own determination from the record; we must
remand to the Board.) (citations omitted).
16 Stephens v. ITT/Felec Servs., 915 P.2d 620, 627 (Alaska
1996).
17 Id. at 629 (Matthews, J., dissenting in part).
18 The thorough discussion by the board in adopting Dr.
Scotts testimony is reproduced supra Part II.B.
19 Bradbury, 71 P.2d at 905.
20 AS 23.30.122.
21 While the boards first decision did not discuss the
antibody testing, its reliance on Dr. Scotts opinions regarding
this testing was made explicit in its order denying Lindhags
petition for rehearing. Lindhag had also argued in that petition
that the court made a mistake of fact in not considering the
antibody evidence.
22 For more discussion of this newly discovered evidence,
see infra Part IV.B.
23 8 AAC 45.150(a).
24 8 AAC 45.150(d) (emphasis added).
25 See Alaska Civil Rule 59(d); Alaska Civil Rule
60(b)(2). In Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1261
(Alaska 2001), we observed that motions based on newly discovered
evidence are reviewed under a five-part standard. Id. The third
part of this standard mandates that the newly discovered evidence
must . . . not have been discoverable, with due diligence, before
trial. Id.
26 Hodges v. Alaska Constructors, Inc., 957 P.2d 957, 961
(Alaska 1998) (quoting Interior Paint Co. v. Rodgers, 522 P.2d
164, 169 (Alaska 1974) (internal quotation omitted)).
27 Id. at 960.
28 See supra Part IV.A.1.
29 8 AAC 45.150(c) & (e).
30 See Fischback & Moore of Alaska, Inc. v. Lynn, 453 P.2d
478, 485 (Alaska 1969) (Change in condition necessarily implies a
change from something previously existing. In this context, it
must refer to a change from the condition at the time of the
award which is being modified.) (citation omitted).
31 Blacks Law Dictionary 247 (8th ed. 1999).
32 See 8 Arthur Larson & Lex K. Larson, Larsons Workers
Compensation Law 131.03[1][e] (2005). These states include
Arizona, Colorado, Illinois, Kentucky, Oregon, South Dakota, and
Washington. Id. at n.26.
33 Id.
34 We note, however, that change in conditions under the
terms of Alaskas modification statute, AS 23.30.130(a), at least
includes the non-physical change in residence.
35 Larson, supra n.32, at 131.03[2][a]. Cf. Hodges v.
Alaska Constructors, Inc., 957 P.2d 957, 961 (Alaska 1998)
(allegation of mistake should not serve as a back-door route to
retrying a case because one party thinks he can make a better
showing on a second attempt. ) (quoting Interior Paint Co. v.
Rodgers, 522 P.2d 164, 169 (Alaska 1974) (internal quotation
omitted)).
36 Larson, supra n.32, at 131.03[2][a].
37 Id. (emphasis added).
38 Lindhag argues that the boards refusal to grant her a
rehearing deprived her of workers compensation benefits without
due process. Her argument misconstrues the scope of a possible
violation: whether the boards consideration of her petition
violated due process. The board had discretion to accept or deny
her petition for rehearing based on the criteria identified in 8
AAC 45.150. Lindhag has not presented any argument regarding how
the exercise of that discretion within the bounds set by 8 AAC
45.150 might violate due process. She has not, therefore,
sufficiently addressed this issue.
39 Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n.3
(Alaska 1991).
