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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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,


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PROVIDENCE WASHINGTON ) Supreme Court No. S-10851
) Superior Court No.
Appellants, ) 3AN-00- 3734 CI
) 3AN-01-10464 CI
v. )
) AWCB Case No. 198100384/198101012
THE ESTATE OF JOHN ) Consolidated
LINDEKUGEL, through its personal )
representative, CHERYL ) O P I N I O N
CIGNA, and THE ALASKA ) [No. 5925 - July 22, 2005]
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.

          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.
     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
          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
          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
     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
          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
          This  holding  disposes of two of  Easleys  claims  for
          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.
          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

     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

     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

     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

     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
     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

     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.