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


) Supreme Court No. S- 11370
Appellant, )
) Superior Court No.
v. ) 4FA-02-2597 CI
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.

          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.
     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
          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
          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
          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.
          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
          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.

          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
          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
          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
          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
          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
          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
          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
          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.
          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

     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

     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

     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).