Hawaii Supreme Court rules vog can trigger workers’ comp

‘It’s very, very clear that all that is needed is some type of exacerbation,’ said Honolulu labor attorney Elizabeth Jubin Fujiwara’


HONOLULU —The Labor Industrial Relations Appeals Board (LIRAB) is being forced to pay a workers’ compensation claim to a former technology coordinator at Lahainaluna High School on Maui after a ruling Thursday by the Hawaii Supreme Court.


Click here to watch Andrew Pereira’s story.

In the unanimous 51-page decision, the high court said Lynedon Van Ness’ claim was valid because “the slightest aggravation or acceleration of an injury by the employment activity mandates compensation.”

Van Ness, 54, worked at Lahainaluna from July 2005 through Nov. 2006. He is now living on the mainland.

Van Ness filed a workers’ compensation claim in September 2007 after stating vog from Kilauea volcano made his asthma significantly worse from October 2005 through April 2006. In court documents, Van Ness said he worked outside 95 percent of the time since he had to go from classroom to classroom to service computers. Van Ness also claimed the layout of the Lahainaluna campus forced him to repeatedly climb stairs.

“[The vog] basically reduced the amount of air I was able to breathe,” he told the court.

“Those people are more susceptible to having problems with their lungs to begin with, but being outside with the vog and the irritability makes them more susceptible to having attacks of their asthma,” said Dr. Ronald Kuroda, who practices emergency medicine at the Queen’s Medical Center.

Both the Department of Education and the LIRAB denied Van Ness’ claim for workman’s comp since other Maui residents were faced with the same elevated levels of vog.

Van Ness’ attorney, Wayne Mukaida, did not return phone calls placed to him by KITV4, but he told the Honolulu Star-Advertiser that “It’s been a long fight, and we’re glad with the outcome to date.”

The state attorney general’s office believes Van Ness’ claim won’t have a broader impact on other employees or employers, since the ruling depended “upon both the unique facts and circumstances underlying” the case.

However, attorneys contacted by KITV4 say that’s absolutely false, and precedent has indeed been set.

“It’s very, very clear that all that is needed is some type of exacerbation,” said Honolulu labor attorney Elizabeth Jubin Fujiwara. “All you need is for the injury to have flowed from the work condition, or the disease to have flowed from the work condition. That’s all you need.”

Fujiwara’s partner, Joseph Rosebaum, said the high court’s decision will impact both government and private-sector workers in Hawaii, and any attempt to screen future workers with asthma would be deemed illegal.

“That would actually bring to light violations of the law,” said Rosenbaum. “Asthma clearly could be defined as somebody with a disability; that would be an inappropriate question to be asking an applicant.”

The Hawaii Supreme Court ordered the LIRAB to pay Van Ness’ claim, but it’s unclear at this point how much he will receive.

“He would just be allowed the remedies under the workers’ compensation law,” said Rosenbaum. “He would only be allowed a portion of his wages that he would have earned had he not been afflicted by the vog.”

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