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Lindhag v. State10/7/2005
No. 5946
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
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 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 performed by Dr. Arora. Dr. Arora concluded that Lindhag did not have a cognitive disorder and that her respiratory problems were not work-related. Accordingl
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