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Van Ness v. State, Department of Education

Supreme Court of Hawaii

January 23, 2014

LYNEDON A. VAN NESS, Petitioner/Claimant-Appellant
STATE OF HAWAI'I, DEPARTMENT OF EDUCATION Respondent/Employer-Appellee, Self-Insured.


Wayne H. Mukaidafor petitioner

Steve Miyasaka for respondent




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.


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


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 testified that after performing x-rays and tests, Dr. Tom diagnosed him with chronic bronchitis.

Van Ness testified that following his visit with Dr. Tom, he was placed on "light duty" at work, which required that he "stay out of the vog whenever [he] could" but did not limit his physical activity.

Van Ness had a follow-up visit with Dr. Tom on January 28, 2006. Dr. Tom's clinical notes indicated that Van Ness's symptoms of coughing, chest congestion, shortness of breath, and wheezing, had "never completely gone away from [the] 12/23/05 visit." Dr. Tom also made note of the possibility of "vog contributing" and "vog on Maui."

On March 4, 2006, Van Ness saw Dr. Sweet, his treating physician for his respiratory condition. Van Ness was still experiencing shortness of breath and wheezing. Dr. Sweet also noted that Van Ness had taken a trip to Pennsylvania and "[w]hile in Philadelphia he was on prednisone. His wheezing and [shortness of breath] essentially resolved. [Van Ness] states as soon as he returned to Maui he started to have wheezing and [shortness of breath]."

On March 10, and 23, 2006, Dr. Tom wrote two notes, addressed "To Whom It May Concern, " stating that Van Ness had an asthma condition which was exacerbated by vog. Dr. Tom wrote that Van Ness's symptoms had worsened since moving to Maui due to the higher vog exposure there. Dr. Tom recommended that Van Ness be transferred to O'ahu due to his condition.

On March 23, 2006, the DOE approved Van Ness's request for a "hardship transfer from Maui District to Oahu District due to medical reasons." However, Van Ness was not immediately transferred.

On May 2, 2006, Van Ness was hospitalized at Queen's Medical Center (QMC) on O'ahu for surgery on a hernia in his diaphragm. Van Ness testified that the x-ray that Dr. Tom performed of Van Ness's diaphragm in December 2005 had identified a "hole in the diaphragm . . . separating the abdomen from the lungs." He testified that "later it was found that because of all the coughing and wheezing, . . . the tear had gotten a lot larger[.]"

After surgery, Van Ness testified that he experienced various complications, including "post-operative pneumonia, postoperative multi-system organ failure, life threatening pneumonia, advanced respiratory distress syndrome, renal failure, gastrointestinal bleeding, tracheostomy and gangrene." The gangrene "led to amputation of the terminal digits of his first and fifth fingers on the right." Van Ness testified that Paul Morris, M.D. (Dr. Morris), Van Ness's treating physician at QMC, told him that his body would not have been as physically weak post-operation if the DOE had transferred him to O'ahu in March 2006 when his hardship transfer was approved by the DOE.

Van Ness was discharged from QMC on June 9, 2006. On July 25, 2006, Van Ness returned to work at Lahainaluna.

Van Ness was transferred to O'ahu in November 2006. Following the transfer, he continued to have respiratory difficulties as his body recuperated from surgery. On June 16, 2007, Dr. Tom restricted Van Ness from "walking too far because that just kept [Van Ness] in a situation of overworking [his] lungs in the recovery period."


On September 20, 2007, Van Ness filed a workers' compensation claim with the Director, stating that "on or about" December 23, 2005, he was exposed to vog during the course of his employment at Lahainaluna, resulting in the "exacerbation of [his] asthma, bronchitis, [and] difficulty breathing." He stated that he had given his employer notice of injury through Joanne Dennis, Lahainaluna's Vice Principal.

On October 12, 2007, the DOE filed a report denying liability for Van Ness's claimed injury "pending further evaluation."

On October 19, 2007, Vice Principal Dennis wrote a letter confirming that prior to December 23, 2005, she had, on several occasions, discussed with Van Ness his difficulties with breathing and asthma that he experienced while working at Lahainaluna. She also verified that " [w] e experienced some unusually severe vog-polluted days during the weeks preceding that winter break." "On some days the atmosphere was so heavy with vog that we could barely see Lahaina town from Lahainaluna High School." She noted that "the vog was even worse" in Kihei, where Van Ness lived. Vice Principal Dennis also "experienced intense headaches during those , voggy' days, " even though she did not have asthma.

Van Ness also testified that he had discussed his medical condition with Vice Principal Lynn Kaholohala prior to December 23, 2005.


Upon the DOE's request, the Director issued an order on January 11, 2008, requiring Van Ness to submit to an Independent Medical Examination (IME) by Ajit S. Arora, M.D. (Dr. Arora).[2]The IME was conducted on January 25, 2008, and consisted of an "extended interview and examination."[3] No medical records were available for Dr. Arora's review at the time. Dr. Arora submitted his report on February 5, 2008.

As an initial matter, Dr. Arora noted that "[t]he claim apparently is based on the assumption that since exposure to vog occurred also at the school, it is a work related exacerbation of asthma. The legal implications of this are not clear to me because vog is not a factor that is associated with school uniquely."

The majority of Dr. Arora's report reiterated Van Ness's medical history and exposure to vog at Lahainaluna, consistent with Van Ness's testimony at the LIRAB hearing. Dr. Arora stated that "the issues are quite complex." Because Dr. Arora did not have access to Van Ness's medical records, he concluded that "it [would] be unwise to address the [DOE's] referral questions" until he had access to the relevant records. On February 14, 2008, Van Ness was seen by David A. Mathison, M.D. (Dr. Mathison), for a consultation regarding "asthma, allergies, [and] vog effect on lungs." Dr. Mathison prepared a consultation report based on his interview with Van Ness and his wife, a physical examination of Van Ness, and Van Ness's medical records provided by Dr. Sweet dating back to 1991, which included a summary of Van Ness's hospitalization at QMC in May 2006.

Dr. Mathison first discussed Van Ness's aggravated asthma and noted that after several months on Maui "during a 40-day spell of rainy weather with vog (moisture, pollutants including volcanic smoke/ash) exposure from about November 2005 and continuing into the spring of 2006, [Van Ness] had serious flare of asthmatic symptoms with harsh paroxysms of cough, chest tightness, shortness of breath, and wheeziness[.]" At that time Van Ness's symptoms were "only partially controlled with medications for asthma/bronchitis including Advair, Singulair, and albuterol."

Dr. Mathison wrote that Van Ness's symptoms were complicated by "hernia of the right diaphragm, and urgent surgery was performed at the Queens Medical Center on May 2, 2006." Dr. Mathison also noted the various post-surgery complications Van Ness experienced. He wrote that after being discharged from the hospital, Van Ness had "improved respiratory symptoms, he was able to return to Maui and work there through the remainder of 2 0 0 6."

Dr. Mathison noted that since moving back to O'ahu, Van Ness "has been relatively free of respiratory symptoms. He . . . rarely has had need for albuterol and ...

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