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Lindhag v. State10/7/2005
-existing, she concluded that exposure during employment may have temporarily aggravated these conditions, but that " 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 board's 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 Lindhag's 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 Lindhag's bed. Dr. Steiner accordingly reasoned that " laims of asthma due to dust mite allergies are refuted by this test." This new evidence, if correct, would directly contradict Dr. Scott's conclusion that the dust mite allergy may have been a contributing factor to Lindhag's 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 party's 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.
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. 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.' "
Our review of an agency's application of its own regulation is limited to whether the decision was "arbitrary, unreasonable, or an abuse of discretion."
The affidavit by Lindhag's 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. Scott's opinion regarding her dust mite allergy as early
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