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Lindhag v. State10/7/2005
as June 1998 - almost two years before the hearing. Dr. Scott reaffirmed her opinion in October 1999. At the hearing, Lindhag's attorneys attacked Dr. Scott's conclusion regarding dust mites. Lindhag's 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 Lindhag's testimony in favor of Dr. Scott's testimony. 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. Scott's 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 modification."
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." 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 modifications.
Black's Law Dictionary defines "change in conditions" for workers' compensation actions as: "substantial worsening of an employee's physical health occurring after an award, as a result of which the employee merits an increase in benefits." A number of states have strictly confined the meaning of change in conditions in this realm to a change in physical condition. Other states have been more expansive: They have also found change in conditions where an "economic change" has adversely affected a claimant's ability "to get or hold employment, or to maintain his earlier earning level." We have not ruled on this question, and we need not today - Lindhag's 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 board's regulation governing modifications.
Moreover, an alleged change in conditions cannot be used to retry original
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