This employee was forced to breathe air with high pollution content while climbing up and down stairs at work. Was this enough to worsen his pre-existing asthma and qualify for workers’ comp?
Lynedon Van Ness, a technology coordinator, was exposed to lots of vog (volcanic smog) at work.
He worked for the State of Hawaii Department of Education (DOE) at Lahainaluna High School (LHS). He was the only person at the school who maintained and repaired computer equipment for about 1,000 students and 150 faculty.
The LHS campus is built into the side of a mountain. It has several buildings which are separated by about 140 steps from top to bottom.
Van Ness’ office was in the very top building.
While his office was air conditioned, Van Ness estimates he only spent 5% of his time there. Other rooms weren’t air conditioned and windows were open.
That let in the vog which aggravated Van Ness’ asthma.
There was a significant amount of vog from October 2005 to April 2006.
Van Ness said starting in late 2005 his exposure to vog at work affected his respiratory condition. He experienced “a lot of coughing, wheezing,” and contracted bronchitis. He described the pain from coughing as “incredibly sharp, like a stabbing pain.”
Before the period of severe vog, Van Ness was able to control his asthma with an inhaler which he didn’t need to use often.
On Dec. 23, 2005, Van Ness saw his primary care doctor who confirmed he had trouble breathing because of the vog and diagnosed him with chronic bronchitis.
In March 2006, Van Ness saw a specialist who recommended he be transferred to another Hawaiian island where vog was much less prevalent. The DOE approved his transfer, however he wasn’t relocated immediately.
On May 2, 2006, Van Ness was hospitalized for surgery on a hernia in his diaphragm that he says had become larger because of all his coughing and wheezing.
After surgery, Van Ness developed complications including pneumonia, multi-system organ failure, advanced respiratory distress syndrome and gangrene which led to the amputation of “the terminal digits of his first and fifth fingers on the right” hand.
His treating physician told him his body wouldn’t have been as physically weak post-operation if his transfer would have taken effect immediately.
Van Ness returned to work at LHS in July 2006. He was transferred to Oahu in November 2006, but he continued to have respiratory problems as his body recuperated from surgery. In June 2007, his doctor restricted him from “walking too far because that just kept him in a situation of overworking his lungs in the recovery period.”
In September 2007, Van Ness filed a workers’ comp claim stating that in late 2005 he was exposed to vog during the course of his employment at LHS, resulting in the exacerbation of his asthma.
His employer denied liability. The case went to the state Labor and Industrial Relations (LIR) Director who ordered an independent medical exam.
The doctor who performed the independent exam diagnosed Van Ness with “mild persistent asthma with history of exacerbations with exposure to volcanic smoke-ash-pollution.” The doctor recommended Van Ness avoid vog. Van Ness “can be considered to be disabled” the doctor wrote and it would be wise for “his employer not to place him at risk of asthmatic exacerbations by assignments to areas likely to have volcanic exposure-pollution.”
The LIR Director denied Van Ness’ workers’ comp claim. The Director wasn’t convinced his injury arose out of and in the course of employment. The Director found the airborne volcanic dust was present on the entire island of Maui and not just at his place of employment.
Van Ness took his case to an appeals board that upheld the denial of workers’ comp benefits. A court of appeals did the same.
The case went to the Hawaii Supreme Court.
The court said the issue was whether there was a causal connection between Van Ness’ injury and any part of his employment.
“It is clear that the effort or strain Van Ness experienced with his respiratory condition as a result of vog exposure occurred during the course of the employment and as an ordinary or usual incident of the work, given that his employment required strenuous activity (climbing the stairs from building to building) and the strenuous activity caused the exacerbation of his asthma,” the court wrote in its opinion.
“The relevant point is not whether Van Ness would more likely have suffered an injury at work than elsewhere, but whether his injury occurring in the course of employment was work related.”
The DOE argued Van Ness’ claim wasn’t compensable because his asthma was temporary and reversible. However, the court noted that Hawaii law made “the slightest factor of aggravation an adequate cause of injury.”
The court also found the general public wasn’t exposed to the vog in the same way Van Ness was.
For those reasons, the Hawaii Supreme Court reversed the previously rulings and awarded workers’ comp benefits to Van Ness.
What do you think about the court’s decision? Let us know in the comments.
(Van Ness v. State of Hawaii Department of Education, Supreme Court of Hawaii, No. SCWC-11-0000775, 1/23/14)