Vog-related workers’ compensation case properly decided

The Hawaii Supreme Court case of my client, Lynedon Van Ness, involving workers’ compensation and the exacerbation of his asthma because of vog, has been misinterpreted by many.

Not everyone breathing vog will have a workers’ compensation case. There must be a connection between the job and the injury or disease for workers’ compensation to be applicable.

Van Ness’ situation on Maui was unique. He had high-efficiency particulate absorption (HEPA) air filters in his car and at home. He was largely a homebody. Vog particulates were removed from the air by his HEPA filters. Unless Van Ness was at work, he was largely in an air-conditioned environment, and, therefore, his exposure to vog was at work.

Van Ness worked as a technology coordinator for the state Department of Education at Lahainaluna High School, which is located high on a steep hillside. He was required to walk up and down the hillside carrying computer equipment, and this caused him to breathe the voggy air in deeply, and resulted in the exacerbation of his asthma.

The DOE approved a transfer for medical reasons from Maui to Honolulu, but took a long time to implement the transfer. There are many employees who are ordered by their employers to do jobs without suitable protective gear; however, not many employees can afford to walk away from their jobs, nor afford to lose their health benefits.

Van Ness’ asthma condition deteriorated — severe coughing ensued, which exacerbated a pre-existing hernia, and surgery was required. Because of his pulmonary condition, there were surgical complications, which included multisystem organ failures and amputations. Van Ness has permanent injuries to his lungs and his right arm and had parts of two fingers amputated.

It has long been the law that workers’ compensation covers an employee’s pre-existing condition if it is made worse because of work. The state itself warned against physical exertion by persons with asthma in voggy conditions, and therefore no one should be surprised about the result of the Supreme Court decision.

Workers’ compensation is generally supposed to provide immediate medical care to injured workers without regard to fault; it is supposed to be a no-fault system. However, the DOE denied the case, and at great expense hired a physician from California to challenge the claim. Van Ness had to fight for seven years to be covered.

Van Ness fought to emphasize that employers must protect their employees from job hazards, must pay medical expenses, must compensate employees for disabilities related to work, and must continue to protect everyone under their employment.

The DOE argued that before a disease could be work-related, there had to be some history of an association between job category and the disease. For example, there was an association between coal miners and black lung disease, and therefore that disease is compensable. The DOE argued that Van Ness was a technology coordinator, and that because there was no relationship between being a technology coordinator and asthma, that there was no workers’ compensation coverage. Such a test would, of course, severely limit the types of work-related diseases that would be compensable.

The state Supreme Court clarified that coverage should be broad, and that where a disease "results from the nature of the employment," then the disease may be work-related and covered by workers’ compensation.

It was clear that breathing voggy air at work exacerbated Van Ness’ asthma, and was therefore properly covered by workers’ compensation.

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Wayne H. Mukaida is an attorney who represented Lynedon Van Ness in this case. (Editor’s note: The Star-Advertiser article about the state Supreme Court’s ruling is posted online at http://bit.ly/1g4kFLA.)