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Lynedon A. Van Ness v. State of Hawaii

December 10, 2012

LYNEDON A. VAN NESS,
CLAIMANT-APPELLANT,
v.
STATE OF HAWAII, DEPARTMENT OF EDUCATION,
EMPLOYER-APPELLEE, SELF-INSURED



APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD (CASE NO. AB 2009-158(M) (7-07-10239))

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

MEMORANDUM OPINION

(By: Foley, Presiding J., Fujise and Reifurth, JJ.)

Claimant-Appellant Lynedon Van Ness (Van Ness) appeals from the Decision and Order of the Labor and Industrial Relations Appeals Board (LIRAB) filed September 20, 2011, affirming the Disability Compensation Division, Department of Labor and Industrial Relations' (DLIR) denial of Van Ness's workers' compensation claim against Employer-Appellee State of Hawaii, Department of Education (DOE).

I. BACKGROUND

Van Ness was employed by the Department of Education as a technology coordinator at Lahainaluna High School (Lahainaluna), on the island of Maui, from July 2005 until November 2006. He maintained and repaired all the technology equipment on campus, and he reported he spent the majority of his time outside, walking to various buildings on campus. Because the Lahainaluna campus is on the side of a mountain, getting around campus required climbing stairs. Van Ness testified that climbing the stairs from the school's main office up to his office in the library took him about twenty minutes. Many of the buildings were not air-conditioned, and the windows were left open.

Before working at Lahainaluna, Van Ness had a pre- existing asthma condition, which he controlled with medication. In late 2005, however, Maui faced days of unusually severe vog*fn1 affecting the entire island. Van Ness testified that on the days of high vog, he experienced symptoms such as coughing and wheezing, and his over-the-counter medication no longer worked. Consequently, over the winter break Van Ness saw Russell M. Tom, M.D. (Dr. Tom), who had been treating Van Ness since 1991. Dr. Tom diagnosed Van Ness with chronic bronchitis and made note of the vog in his clinical notes dated December 23, 2005 and January 28, 2006. Van Ness later saw James M. Sweet, M.D. (Dr. Sweet) and David A. Mathison, M.D. (Dr. Mathison) as well, and all three physicians opined that the vog on Maui worsened Van Ness's symptoms. In March 2006, Dr. Tom wrote a letter recommending that Van Ness transfer to Oahu to avoid further exacerbation, and shortly after Van Ness received approval for a hardship transfer to Oahu.

On September 20, 2007, Van Ness filed a claim for workers' compensation benefits, identifying the date of injury as on or about December 23, 2005 and alleging he was exposed to vog while walking around the Lahainaluna campus, exacerbating his asthma and bronchitis. On October 12, 2007, the DOE filed an Employee's Report of Industrial Injury (WC-1) denying liability for the claim. At the DOE's request, Ajit S. Arora, M.D. (Dr. Arora) conducted an independent medical evaluation (IME) of Van Ness on February 5, 2008. Dr. Arora prepared a post-IME report, as well as a supplemental report prepared after reviewing additional records from the various physicians who had treated Van Ness. On April 21, 2008, the DLIR issued a decision denying Van Ness's claim for compensation, and Van Ness filed an appeal of the DLIR's decision.

The LIRAB conducted a hearing on April 6, 2010, and on September 20, 2011 entered its Decision and Order affirming the DLIR's denial of Van Ness's workers' compensation claims. At the hearing before the LIRAB, the parties entered into evidence the reports from Dr. Arora and records from Drs. Tom, Sweet, and Mathison. Van Ness filed a timely notice of appeal to this court on October 24, 2011.

On appeal, Van Ness contends the LIRAB erred in denying his workers' compensation claim against the DOE. Specifically, Van Ness challenges the following Finding of Fact (FOF):

9. The Board finds that Claimant's work or work environment posed no greater vog exposure than that posed to the general public. The hazard from vog exposure Claimant faced while on the campus of Lahainaluna School was no greater hazard or risk than that faced by others off of the campus of Lahainaluna School.

Van Ness did not raise FOF 10 as a point of error but challenged it in the arguments section of his brief. Hawaii Rules of Appellate Procedure (HRAP) Rule 28(b)(4)(C) states "when the point [on appeal] involves a finding or conclusion of the court or agency, [the points of error shall include] either a quotation of the finding or conclusion urged as error or reference to appended findings and conclusions[.]" "[I]t is well settled that failure to comply with HRAP Rule 28(b)(4) is alone sufficient to affirm[.]" Morgan v. Planning Dept. Cnty. of Kauai, 104 Hawaii 173, 180, 86 P.3d 982, 989 (2004). Nonetheless, noncompliance does not always result in dismissal, and "[t]his is particularly so where the remaining sections of the brief provide the necessary information to identify the party's argument." Marvin v. Pflueger, 127 Hawaii 490, 496, 280 P.3d 88, 94 (2012).

Therefore, we review for clear error FOF 10, which states:

10. The Board has applied the presumption of compensability and finds that Employer has presented substantial ...


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