A former Lahainaluna High School technology coordinator, who the state Supreme Court said was covered by workers' compensation for workplace exposure to vog that worsened his asthma, was in a unique situation, his attorney said.
"There appear to be a lot of misconceptions about Mr. Lynedon Van Ness' workers' compensation case involving the exacerbation of his asthma because of vog," Oahu attorney Wayne Mukaida said by email. "The case does not mean that anyone breathing vog will have a workers' compensation case. A very basic concept is that there must be some connection between the job and the injury or disease in order for an employee to be eligible for workers' compensation benefits."
Van Ness had a high-efficiency particulate absorption air filter in his car and two at home to remove vog or volcanic smoke particulates. "He was largely a homebody," Mukaida said. "Unless Mr. Van Ness was at work, he was largely in an air-conditioned environment while away from work; therefore, his exposure to vog was largely at work."
LYNEDON VAN NESS
Sought workers’ compensation
At Lahainaluna, which is located on a steep hillside, Van Ness was required to walk up and down the hillside to repair classroom computers, "which caused him to breathe the voggy air in deeply and resulted in the exacerbation of his asthma," Mukaida said.
Although the state Department of Education approved Van Ness' transfer for medical reasons from Maui to Honolulu in March 2006, the move wasn't implemented for more than seven months. Van Ness' asthma condition deteriorated, resulting in coughing that exacerbated a pre-existing hernia, Mukaida said. He needed hernia repair surgery. "Because of his pulmonary condition, there were surgical complications which included multisystem organ failures and amputations," Mukaida said.
Van Ness worked at Lahainaluna from July 2005 to November 2006.
In an opinion filed last month, the Supreme Court court ordered the state Labor and Industrial Relations Appeal Board to determine how much Van Ness should be awarded for his workers' compensation claim. The court vacated a September 2011 Labor and Industrial Relations Appeal Board decision denying workers' compensation for Van Ness, as well as a state Intermediate Court of Appeals judgment affirming the board decision.
Mukaida said Van Ness' case will probably be sent back to the Disability Compensation Division and it will likely be several months before a hearing is scheduled and another two months for a decision to be issued.
"The workers' compensation system is generally supposed to provide immediate medical care to injured workers without regard to fault," Mukaida said. "However, Mr. Van Ness had to fight for seven years to receive a decision that he was covered by workers' compensation."
Mukaida said workers' compensation benefits are limited by law. For example, he said, someone whose thumb is cut off at work could receive a permanent impairment benefit of 75 weeks, regardless of the worker's age.
"What should be more disconcerting is that the case was denied in the first place by the DOE and that, at great expense, the DOE hired a physician from California to fight the case," Mukaida said.
The DOE referred calls seeking comment to the state attorney general's office. The attorney general's office didn't return a call seeking comment.
"The employer's actions and inactions resulted in Mr. Van Ness having permanent injuries to his lungs, his right arm, and the loss of parts of two fingers," Mukaida said.
Because the workers' compensation statute generally protects employers from lawsuits, Van Ness "will never be fully compensated for pain and suffering and the permanence of his injuries," Mukaida said.
The 54-year-old Van Ness now lives in Mississippi and is a class lecturer on computer-related matters, he said.
Because the Supreme Court opinion was for publication, it can be cited in other cases as precedent.
Before Van Ness' case, some employers argued that before a disease could be work related, there had to be some history of an association between the type of job and the disease, Mukaida said. As an example, he cited the association between coal miners and Black Lung Disease.
Mukaida said one argument by the state was that because there was no relationship between being a technology coordinator and asthma, Van Ness couldn't have a workers' compensation case.
But the Supreme Court clarified that when a disease does not result from a specific event, a broad test of work connection is applicable. If a disease "results from the nature of the employment," then the disease may be work related and covered by workers' compensation.
"It was clear that breathing voggy air at work exacerbated Mr. Van Ness' asthma, and therefore the exacerbation of his asthma resulted from the nature of his employment and was covered by workers' compensation," Mukaida said.
Maui attorney Timothy McNulty, who handles workers' compensation cases, said the opinion clarifies state law.
"It's a restatement of existing law with respect to the employer's liability for injury by disease to make it real clear to everybody this is what the state of Hawaii workers' compensation law is," McNulty said.
He said there aren't many attorneys who handle workers' compensation cases.
"You have to really want to help people. It's a little bit of a labor of love," McNulty said. "My hat's off to Wayne for pursuing it as far as he did."
* Lila Fujimoto can be reached at email@example.com.