Van Ness v. State

• Decision Date: 23 January 2014
• Docket Number: No. SCWC–11–0000775.,SCWC–11–0000775.
• Citation: 319 P.3d 464,131 Hawai'i 545
• Court: Hawaii Supreme Court
• Parties: Lynedon A. VAN NESS, Petitioner/Claimant–Appellant v. STATE of Hawai‘i, DEPARTMENT OF EDUCATION, Respondent/Employer–Appellee, Self–Insured.

131 Hawai'i 545

319 P.3d 464

Lynedon A. VAN NESS, Petitioner/Claimant–Appellant

v.STATE of Hawai‘i, DEPARTMENT OF EDUCATION, Respondent/Employer–Appellee, Self–Insured.

No. SCWC–11–0000775.

Supreme Court of Hawai‘i.

Jan. 23, 2014.

As Corrected Feb. 4, 2014.

Wayne H. Mukaida, Honolulu, for petitioner.

Steve Miyasaka, for respondent.

RECKTENWALD, C.J., NAKAYAMA, ACOBA, McKENNA, and POLLACK, JJ.

Opinion of the Court by POLLACK, J.

This appeal arises out of a workers' compensation claim filed by Petitioner/Claimant–Appellant Lynedon Van Ness (Van Ness) with the Director of Labor and Industrial Relations (Director), in which Van Ness sought compensation for the aggravation of his asthma

resulting from his exposure to vog at work.¹

The Director denied his claim, and the Labor and Industrial Relations Appeals Board (LIRAB) affirmed the decision. Van Ness now seeks review of the January 31, 2013 Judgment of the Intermediate Court of Appeals (ICA), affirming the LIRAB's decision. For the reasons set forth herein, we hold that Van Ness is entitled to compensation pursuant to Hawai‘i Revised Statutes (HRS) § 386–3(a), governing an injury by disease that is proximately caused by employment. Accordingly, we vacate the ICA's judgment and the LIRAB's decision and remand to the Director for a determination of the amount of compensation to be awarded.

I. BACKGROUND

The following facts are taken from the record and from Van Ness's testimony at the LIRAB hearing.

A.

Van Ness was employed by the State of Hawai‘i, Department of Education (DOE), as a technology coordinator at Lahainaluna High School (Lahainaluna), on the island of Maui, from July 2005 to November 2006. He had a history of "mild persistent asthma

" that he had largely controlled through avoidances and prescribed medications.

In 1989, Van Ness was employed by the DOE as a school teacher on the island of Hawai‘i. While teaching in Kona, Van Ness was exposed to vog and "had difficulty breathing and required courses of systemic corticosteroid for rescue along with regular controller medication."

In 1991, Van Ness was transferred to a school on the island of O‘ahu and began receiving respiratory treatment from James M. Sweet, M.D. (Dr. Sweet) and Russell M. Tom, M.D. (Dr. Tom). "He was tested and confirmed to have allergic potentials to multiple inhalant allergens including dust mite and mold spores." He was placed on "a several-year course of desensitizing immunotherapy

and had [a] favorable outcome."

From 1995 to 2001, Van Ness lived in Idaho, during which he "had few symptoms of allergic-respiratory disease."

Van Ness returned to O‘ahu in 2001 and was employed by the DOE as one of two technology coordinators at Leilehua High School. In October 2004, during a trip to California, Van Ness was hospitalized for a diaphragmatic hernia

. He also contracted pneumonia during his treatment.

In July 2005, Van Ness was transferred to Lahainaluna to work as the technology coordinator. Lahainaluna had approximately one thousand students and one hundred and fifty staff members. Van Ness was the only technology coordinator at the school and was responsible for maintaining and repairing the technical equipment for the entire school.

Van Ness testified that Lahainaluna is located on the side of a mountain, at the end of Lahainaluna Road. Lahainaluna Road "starts right at the ocean, goes a couple blocks, and then goes up the hill past the intermediate and elementary school to the high school." Lahainaluna's campus was situated at the highest point that Lahainaluna Road reached on the mountain.

Van Ness testified that due to the school's location, the school buildings and classrooms are "kind of spread out and put up against the sides of the mountain in various locations," and there are "stairs that go up the side of the hill." Van Ness estimated that between campus buildings on the lowest and highest point of the mountain, there was an elevation difference of a "couple hundred feet."

Van Ness testified that the staff was not provided with golf carts for transportation, and due to the steepness of the campus terrain and the lack of paved roads, it would have been impractical to attempt to use golf carts for transportation around the school.

Van Ness's office was located in the school library, which was situated at the highest point of the campus. Van Ness was required to repeatedly climb up and down the school stairs daily in order to service the classroom computers at the lower parts of campus. He explained that there were fifty to sixty stairs at the base of the library, another eighty stairs to reach the next level of buildings, about "three or four floors" down to the parking lot, and then another "hike down" to the final section of buildings. The stairs "wrap[ped] around trees" and went "up the side of the hill." There were also "switchbacks, where you go up one way and go the other direction."

Van Ness testified that he was forced to stop to catch his breath as he traveled uphill to his office from the lower campus. It took "about five minutes to go down to [the] admin[istration] [building], [but] like 20 minutes to come back. It's the elevation change in the stairs. It takes quite a bit of effort."

Van Ness was generally present on campus for seven to eight hours a day. Although his office was air conditioned, Van Ness estimated that he spent less than five percent of his time at work in his office. When he was not in his office, Van Ness worked in non-air conditioned environments " all over campus," in buildings with "louvered windows" and "fans ... inside to keep the air circulating." Although many of the classrooms and offices were equipped with air conditioners, most of the units were turned off and the louver windows were left open.

Van Ness explained that his experience working as a technology coordinator at Lahainaluna was different from his experience working in the same position at other schools because he was required to engage in a significant amount of physical activity outside. Additionally, Van Ness testified that the computers at Lahainaluna required more maintenance than computers at other schools because they were exposed to more dust and dirt as a result of the buildings being non-air conditioned and the windows being left open. Van Ness frequently cleaned and replaced the computer filters, which were clogged with dust. Many computers "overheated" because of the lack of circulation and the accumulation of dust. At schools on O‘ahu, he focused on upgrading the computers to "run faster and more efficiently," whereas at Lahainaluna, "it was more an issue of keeping them running."

While Van Ness worked at Lahainaluna, he lived in an air conditioned home in Kihei. The air conditioner had a built-in filter. In addition, Van Ness had several "Bionic Breeze" filter units placed around his home. The units were high-efficiency particulate air (HEPA) filters, and had been recommended by his doctor. Van Ness also had a HEPA filter in his car.

Van Ness testified that there was a significant amount of vog on Maui from late October 2005 through April 2006. On days when the vog was severe, he was unable to see the administrative building "halfway down the campus" from the library. Van Ness also stated that a film of volcanic ash would accumulate on his car and windshield, requiring him to use the windshield wipers to keep the windshield clear while driving.

Van Ness did not have any problems with volcanic ash inside his car or his home. He testified that while living on Maui he spent little time outside, other than when he was at work, as he was "not much of an outdoors person" and "there really wasn't much to do there."

Van Ness testified that in late 2005, his exposure to vog at work affected his respiratory condition by reducing the amount of air he was able to breathe. When the vog was severe, he experienced "a lot of coughing, wheezing." He also caught a cold and contracted bronchitis

. Van Ness's shortness of breath worsened when he walked uphill to his office from servicing the computers in the lower campus classrooms. Van Ness described the pain from coughing as "incredibly sharp," "like a stabbing pain."

Additionally, Van Ness explained that when he tried to move around, he would start sweating, his heart began "pounding a lot," and his face "[got] all red." Because Van Ness had to walk to his office and assigned parking spot located at the top of Lahainaluna's campus, "it caused a lot of ... issues with strength, a lot of issues with just being able to breathe." He explained:

[The vog] basically reduced the amount of air I was able to breathe. And started wheezing and coughing. Real shortness of breath. And obviously the more that happened, the worse it got, to where I basically went level to level and took breaks before I'd continue all the way up. It's steep. There were times when I would drive. It was easier to drive from the library down, around the campus, up to admin, than to actually walk down there.

Prior to the period of severe vog, Van Ness was able to control his asthma

condition with a regular inhaler, which he usually did not need to use. Van Ness was prescribed enough medication to last thirteen months. While living on O‘ahu, Van Ness never exhausted the entire thirteen-month supply and only refilled his prescription when the inhalers expired.

While working at Lahainaluna in late 2005, however, Van Ness exhausted his supply of inhalers before his prescription expired, and he was frequently required to refill his inhalers at the pharmacy. However, his inhalers and other medication were not helping with his breathing.

On December 23, 2005, which was a work holiday during Lahainaluna's winter break, Van Ness traveled to O‘ahu to see Dr. Tom, his primary care physician, about his condition. Dr. Tom's clinical notes include a reference to "vog," although some of the handwriting is illegible. Dr. Tom wrote that Van Ness was experiencing difficulty breathing and coughing. Van Ness...