Lindhag v. State, Department of Natural Resources

123 P.3d 948, 2005 Alas. LEXIS 141, 2005 WL 2472043
CourtAlaska Supreme Court
DecidedOctober 7, 2005
DocketS-11370
StatusPublished
Cited by20 cases

This text of 123 P.3d 948 (Lindhag v. State, Department of Natural Resources) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lindhag v. State, Department of Natural Resources, 123 P.3d 948, 2005 Alas. LEXIS 141, 2005 WL 2472043 (Ala. 2005).

Opinion

OPINION

CARPENETI, Justice.

I. INTRODUCTION

The Alaska Workers’ Compensation Board rejected Teresa Lindhag’s 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 board’s orders: the first denied benefits to Lindhag and the second denied Lindhag’s 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. Lindhag’s 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 building’s 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 Lindhag’s blood and found low eosinophil 1 levels, which suggested that Lindhag’s suffering did not come from an allergic reaction or a parasitic infection. Dr. Baker, a Seattle allergist, examined Lindhag in January 1990. He attributed Lindhag’s 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 per *951 formed 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 Lindhag’s entitlement to benefits.

The Alaska Workers’ Compensation Board appointed Dr. Aliene 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 Lin-dhag 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 Lindhag’s 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 Lin-dhag had suffered similar symptoms prior to the exposure. 2 Finally, Dr. Scott expressed uncertainty on Lindhag’s 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 Lindhag’s exposure to chemicals while working for DNR had caused “toxic encephalopathy.” Her opinions about the non-encephalopathic symptoms remained unchanged.

Lindhag had Dr. Scott’s 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. Scott’s opinions, the state agreed to pay benefits for Lindhag’s ence-phalopathic 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 Lindhag’s claim for non-encephalo-pathic-related benefits. It reached this conclusion after utilizing the three-part analysis for determining whether an employee’s 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 com-pensability. 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-exist-ing 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.

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Bluebook (online)
123 P.3d 948, 2005 Alas. LEXIS 141, 2005 WL 2472043, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lindhag-v-state-department-of-natural-resources-alaska-2005.