Van Ness v. State, Department of Education.Â

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Electronically Filed
Supreme Court
SCWC-11-0000775
23-JAN-2014
08:07 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
LYNEDON A. VAN NESS,
Petitioner/Claimant-Appellant
vs.
STATE OF HAWAI#I, DEPARTMENT OF EDUCATION
Respondent/Employer-Appellee, Self-Insured.
SCWC-11-0000775
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0000775; CASE NO. AB 2009-158 (M) (7-07-10239)
January 23, 2014
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
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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
1
“Vog is a term that refers to volcanic smog. It is . . . caused
by a combination of weather, wind conditions and volcanic activity. Vog
becomes thicker or lighter depending upon the amount of emissions from Kilauea
volcano [on the island of Hawai#i], the direction and amount of wind, and
other weather conditions.” Important Information About Vog, Governor of the
State of Hawai#i, http://governor.hawaii.gov/emergency-information/important-
information-about-vog/ (last visited Dec. 11, 2013). See Merriam-Webster,
http://www.merriam-webster.com/dictionary/vog (last visited Dec. 12, 2013)
(defining “vog” as “air pollution caused by volcanic emissions”).
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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
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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
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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
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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.
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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
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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
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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
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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, post-
operative 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.”
B.
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
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[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.
C.
Upon the DOE’s request, the Director issued an order on
January 11, 2008, requiring Van Ness to submit to an Independent
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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
2
The DOE asked Dr. Arora to review Van Ness’s medical records and
to conduct a physical examination in order to address: (1) Van Ness’s relevant
medical history; (2) whether Van Ness suffered “an industrial injury” as a
result of exposure to vog on December 23, 2005; (3) whether the “alleged
condition was due in whole or in part to the nature of [Van Ness’s] employment
with the DOE,” or some other pre-existing cause; (4) whether the alleged
condition or injury was “temporary in nature”; (5) if the injury is not
temporary in nature, whether Van Ness is “expected to have permanent
impairment resulting solely from an alleged industrial injury of 12/23/05”;
and 5) whether there are any further issues or considerations regarding the
alleged injury.
3
Dr. Arora noted that Van Ness, upon advice of counsel, refused to
submit to blood work or to testing with an electrocardiogram to assess organ
function.
On March 31, 2010, the DOE filed a motion for an order suspending
Van Ness’s right to claim compensation for failure to comply with HRS § 386-
79, based on Van Ness’s refusal to have tests done during the IME.
Furthermore, the DOE alleged that Van Ness’s counsel “revoked medical
authorizations” and withheld certain medical records.
On June 23, 2010, the LIRAB denied the DOE’s requested order. In
the DOE’s June 3, 2010 post-hearing trial memorandum filed with the LIRAB, the
DOE continued to argue that Van Ness’s right to seek compensation should be
suspended because of his failure to participate in tests during the IME and
his continued withholding of medical records. The LIRAB concluded that it did
not need to reach the DOE’s argument regarding the suspension of Van Ness’s
rights to claim workers’ compensation benefits.
HRS § 386-79 (1993) provides that “[a]fter an injury and during
the period of disability, the employee, whenever ordered by the [Director],
shall submit oneself to examination . . . by a duly qualified physician or
surgeon designated and paid by the employer.” The statute further states that
“[i]f an employee refuses to submit oneself to, or in any way obstructs, such
examination the employee’s right to claim compensation for the work injury
shall be suspended until the refusal or obstruction ceases and no compensation
shall be payable for the period during which the refusal or obstruction
continues.” Id.
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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.”
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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
2006.”
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 has not regularly taken the
Advair.”
Dr. Mathison noted that throughout the years, Van
Ness’s “allergic diathesis has largely been controlled with
avoidances and the several-year course of immunotherapy during
the early 90s. However, he has had significant asthma
exacerbations with exposures to volcanic smoke (high in sulfur
dioxide) and ash including that carried by meteorologic[al]
conditions holding the pollutant[] in moist air over Maui.” Dr.
Mathison also found that at the time of the consultation, Van
Ness’s condition had “improved coincident to his residence in
Oahu, though he continues to . . . recover[] from complications
of respiratory disease-surgery from near 2 years ago.”
In conclusion, Dr. Mathison diagnosed Van Ness with
“[m]ild persistent asthma with history of exacerbations with
exposures to volcanic smoke-ash-pollution.”
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Dr. Mathison recommended that Van Ness “continue the
regimen of avoidances and medications as prescribed by Dr. Sweet
in an attempt to optimally control the allergic-asthmatic
disorders.” Dr. Mathison wrote, “Of particular concern is the
risk for serious and potentially fatal asthma exacerbation with
exposure to volcanic products, a well-recognized risk factor for
asthmatic patients.” (Emphasis added). He concluded that Van
Ness “can be considered to be disabled by virtue of his asthmatic
tendency and susceptibility to the volcanic pollutant effects
and, in accordance with the American Disabilities Act, it
behooves his employer not to place him at risk of asthmatic
exacerbations by assignments to areas likely to have volcanic
exposure-pollution.” (Emphasis added).
D.
The Director’s hearing on Van Ness’s claim was held on
March 13, 2008.4 On April 21, 2008, the Director issued a
decision denying Van Ness’s workers’ compensation claim. The
Director stated that “[a]fter a review of the evidence presented
at the hearing, the Director is not convinced that claimant’s
injury arose out of and in the course of employment.” The
Director found that “[Van Ness’s] exposure to vog aggravated his
long standing asthma condition.” However, “[t]he vog was present
on the entire island of Maui and not only at claimant’s place of
employment.” The Director found that “it was claimant’s exposure
4
The transcript for the March 13, 2008 hearing was not made part of
the record on appeal.
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to vog on the island of Maui that aggravated his asthma
condition,” and there was “insufficient evidence” to support Van
Ness’s “claim that his exposure to vog at only Lahainaluna School
was so overwhelming that [Van Ness’s] exposure to vog occurred at
this place of employment only[.]” The Director therefore did not
“find a nexus between the claimant’s employment and his injury of
12/23/2005.”
The Director concluded: “[T]he claimant’s respiratory
problem and aggravation of his asthma condition was not work
related. The Director credits the report of Dr. Arora and the
employer’s position.”
II. APPEAL TO LIRAB
On May 2, 2008, Van Ness timely filed an appeal from
the Director’s Decision with LIRAB, pursuant to HRS § 386-87.5
A.
On April 10, 2009, Dr. Arora issued a supplemental
report as a follow-up to his initial evaluation of February 5,
2008. The report reviewed records from Dr. Tom from 1994 through
2007, diagnostic reports from the same time period, records from
the California hospital where Van Ness was admitted in 2004, and
hospital records from January 2005 through October 2006.
Dr. Arora wrote that Dr. Tom’s records from Van Ness’s December
23, 2005 visit noted that Van Ness had experienced a cough for
5
HRS § 386-87(a) (1993) provides in relevant part: “A decision of
the director shall be final and conclusive between the parties, . . . unless
within twenty days after a copy has been sent to each party, either party
appeals therefrom to the appellate board by filing a written notice of appeal
with the appellate board or the department.”
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only five days, had difficulty breathing, and requested a refill
of his albuterol inhaler. According to Dr. Arora, Dr. Tom did
not make any note of the vog as a contributory factor.
Additionally, Dr. Arora found that Van Ness had seen
Dr. Tom on December 2, 2005 for a regular checkup and laboratory
work-up, and did not report any problem with breathing at that
time.
In Dr. Arora’s opinion, it was “impossible to
determine” if the reported worsening of Van Ness’s asthma
symptoms in March 2006 was caused by the vog or by the
diaphragmatic hernia that worsened around the same time.
Dr. Arora stated that he had “not had the opportunity to review
the records from Dr. Sweet to determine if objectively there was
any change in [Van Ness’s] pulmonary status between December 2005
and March 2006 compared to his previous baseline.” Nevertheless,
Dr. Arora indicated, “I doubt that to be the case.” He
explained, “Asthma exacerbation can occur in association with
irritant exposure. However, it is a temporary worsening of the
symptoms with recovery to baseline. It does not constitute
aggravation of the condition.”
Dr. Arora concluded that Van Ness’s “history is
compatible with mild exacerbation of his asthma while in Maui
because of vog conditions.” Dr. Arora also concluded that the
exacerbation of asthma “has no relationship to his employment
with the department of education,” and “[s]uch exacerbation was
temporary and reversible and did not cause any permanent
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aggravation of his condition.” Dr. Arora’s opinion was that
“there was no occupational injury that occurred in [Van Ness] as
a result of employment with [the DOE].”
B.
On July 1, 2009, the LIRAB issued a Pretrial Order,
providing that “[t]he sole issue to be determined is whether
Claimant sustained a personal injury to his respiratory system,
on December 23, 2005, arising out of and in the course of
employment.”6
The LIRAB hearing on the case was held on April 6,
2010. Van Ness was the only testifying witness at the hearing,
and testified as to his asthmatic condition and his experience
working at Lahainaluna, as summarized above.
An air quality advisory that was posted on the State of
Hawai#i government’s website on July 29, 2008 was stipulated into
evidence. The advisory stated that the State Department of
Health and Hawai#i County Civil Defense had reported “that recent
activity at the Kilauea volcano has resulted in some temporary
increased levels” of sulfur dioxide and particulates. The
advisory provided that the Department of Health “advises that
exposure to such elevated levels of sulfur dioxide can pose an
immediate health threat to people who have asthma and other
respiratory conditions.” (Emphasis added). The advisory further
stated that people in “sensitive groups such as those with asthma
. . . can be particularly vulnerable” and that “people reacting
6
The Director’s case file was made a part of the LIRAB’s record.
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to volcanic emissions” should “take protective measures such as
staying indoors with the windows closed or relocating to a safe
area.” The advisory cautioned that people should “avoid physical
activity (especially outdoors) such as brisk walking or
exercise.”
In addition, an undated document entitled “Health
Effects,” prepared by the Office of the Governor, was also
entered into evidence. The document explained that sulfur
dioxide is an “irritant gas” that is “a major component of vog.”
Sulfur dioxide “is usually removed by the nasal passages,” and
“[m]oderate activity levels that trigger mouth breathing (such as
a brisk walk) are needed for [sulfur dioxide] to cause health
problems.”
The document further stated that “[p]eople with pre-
existing respiratory conditions are more prone to adverse effects
of vog which may include: headaches, breathing difficulties,
increased susceptibility to respiratory ailments, watery eyes,
and sore throat.” Additionally, “[p]eople with asthma who are
physically active outdoors are most likely to experience the
health effects of [sulfur dioxide]. The main effect, even with a
short exposure, is a narrowing of the airways (called
bronchoconstriction). This may cause wheezing, chest tightness,
and shortness of breath.” (Emphasis added).
Both the air quality advisory and the “Health Effects”
notice provided that “[t]he long-term health effects of vog are
unknown.”
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C.
The LIRAB ordered that the parties submit post-trial
memoranda in lieu of closing arguments.
1.
In his Post Hearing Memorandum, Van Ness argued that he
“suffered an aggravation of his asthmatic condition due to having
to do strenuous work and breathe outdoor air during a period of
high vog concentrations.” He contended that the DOE failed to
provide substantial evidence to overcome the presumption of
compensability for his workers’ compensation claim. Van Ness
argued that the aggravation of his asthma met the test for
compensability under Flor v. Holguin, 94 Hawai#i 70, 81, 9 P.3d
382, 393 (2000), which held that an injury by disease is
compensable if the disease (1) is caused by conditions that are
characteristic of or peculiar to the particular trade,
occupation, or employment, (2) results from the employee’s actual
exposure to such working conditions, and (3) is due to causes in
excess of the ordinary hazards of employment in general.
The DOE countered that Van Ness failed to establish a
nexus between his employment and the alleged injury of vog-
related asthma. The DOE argued that there was no causal
connection between Van Ness’s employment and his injury because
Van Ness was not required to be at work on the alleged date of
injury and his medical records indicated that his respiratory
problems were related to his preexisting health condition.
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Additionally, the DOE argued that there was no evidence
that the vog conditions experienced by Van Ness at work were
greater than that experienced by the general population. The DOE
also contended that any aggravation of Van Ness’s asthmatic
condition was temporary in nature as demonstrated by his improved
health when he was transferred to O#ahu.
2.
On September 20, 2011, the LIRAB issued its Decision
and Order, which included its Findings of Fact (FOF) and
Conclusions of Law (COL).
With respect to Van Ness’s medical records, the LIRAB
found that: 1) on March 23, 2007, Dr. Tom “concluded that [Van
Ness] suffered from asthma exacerbated by vog while he was on
Maui” and recommended that Van Ness move to O#ahu; 2) on February
14, 2008, Dr. Mathison diagnosed Van Ness with “mild persistent
asthma with history of exacerbations with exposures to volcanic
smoke-ash-pollution”; and 3) Dr. Arora’s opinion in his
supplemental report was that “Claimant’s history was compatible
with mild exacerbation of his asthma because of vog conditions.”
The LIRAB entered findings reiterating Van Ness’s
testimony about Lahainaluna’s campus, the vog at work, and his
pre-existing asthma condition. However, the LIRAB found that Van
Ness faced the same “hazard from vog exposure” at work as the
general public, and the DOE had presented substantial evidence to
overcome the presumption of compensability:
9. The Board finds that Claimant’s work or work environment
posed no greater vog exposure than that posed to the general
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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.
10. The Board has applied the presumption of compensability
and finds that Employer has presented substantial evidence
to overcome said presumption.
(Emphases added).
The LIRAB thus concluded that Van Ness “did not sustain
a personal injury to his respiratory system, on December 23,
2005, arising out of and in the course of employment.” The LIRAB
explained that Van Ness “was not at work or even on Maui on
December 23, 2005.”
“However, inasmuch as Claimant identified his date of
injury as ‘on or about’ December 23, 2005,” the LIRAB also
concluded that it was “not persuaded by” Van Ness’s argument that
“his asthma was a compensable disease caused by conditions
peculiar to his particular employment.” In this regard, the
LIRAB concluded that “exposure to vog was not accentuated or made
worse by the nature and conditions of Claimant’s employment,”
based on the following reasoning:
Claimant was a technology coordinator. His risk of exposure
to vog was walking outdoors and being in some buildings that
were not air-conditioned. These exposures are no greater
than that of the general public. The nature and conditions
of his employment did not accentuate the exposure. Rather,
the vog was in the air, and the general public breathed the
same air.
(Emphasis added).
The LIRAB also rejected Van Ness’s claim that, “but for
work, he would otherwise have been in a filtered environment at
his home.” The LIRAB reasoned that “the relevant comparison is
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made to the general public’s exposure, not Claimant’s alleged
comparatively hermetic and sterile home environment.”
Based on the foregoing, the LIRAB concluded that it was
unnecessary to address the DOE’s argument that Van Ness’s “right
to claim workers’ compensation benefits be suspended because of
his refusal to cooperate by undergoing the tests requested by Dr.
Arora.”7
Therefore, the LIRAB affirmed the Director’s decision
to deny compensation.
III. APPEAL TO ICA
On October 20, 2011, Van Ness timely filed a Notice of
Appeal to the ICA.8
A.
Van Ness raised three points of error on appeal to the
ICA, alleging that the LIRAB erred 1) in entering FOF 9 that his
vog exposure at work posed no greater vog exposure or greater
hazard or risk than that faced by the general public; 2) by
concluding that he did not sustain a personal injury to his
respiratory system on December 23, 2005, arising out of and in
the course of employment; and 3) by concluding that his exposure
to vog was not made worse by the nature and conditions of his
employment because the general public breathed the same air.
7
See supra note 3.
8
HRS § 386-88 (Supp. 2011) provides in relevant part: “The decision
or order of the appellate board shall be final and conclusive, . . . unless
within thirty days after mailing of a certified copy of the decision or order,
the director or any other party appeals to the intermediate appellate court, .
. . by filing a written notice of appeal with the appellate board.”
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Van Ness reiterated that the aggravation of his asthma
condition was compensable as an injury by disease under the Flor
test. With respect to the first Flor factor, he argued that his
preexisting asthma condition should be considered along with the
unique nature of his work at Lahainaluna, as compared with the
same position at other schools. Second, Van Ness argued that his
work required actual exposure to vog, as was found by the LIRAB
in FOF 9, and the evidence demonstrated that exposure to vog
adversely affected him and exacerbated his asthma. Third, Van
Ness contended that the LIRAB erred in comparing his vog exposure
to that of the general public, as the general public was not
exposed to the vog conditions while being “required to do
strenuous work outdoors.” The real issue was that “Claimant’s
job conditions exposed him to a positional or actual risk which
resulted in his injury.” In this case, the LIRAB’s own findings
demonstrated that his asthma was exacerbated by vog.
In response, the DOE maintained that Van Ness’s claim
was non-compensable based on the evidence that Van Ness was
exposed to the same air and vog at work as all other persons on
Maui. Additionally, the DOE argued that “[a]lthough the medical
experts opined that vog exacerbated Claimant’s asthma, none of
them opined that Claimant’s asthma was exacerbated by his
employment.”
The DOE further contended that while it was unclear
whether Van Ness was pursuing his claim as an injury by accident
or injury by disease, the LIRAB accurately concluded that Van
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Ness’s injury was not compensable under either alternative. With
respect to an injury by accident, the DOE argued that the LIRAB
correctly found that there was no nexus between the alleged
injury and Van Ness’s employment, as Van Ness was not physically
present at work or on Maui on the alleged date of injury. In
regard to an injury by disease claim under Flor, the DOE
maintained that there was “no evidence that [Van Ness’s] asthma
is characteristic of his occupation as a technology coordinator.”
The DOE acknowledged that Van Ness “may meet” the second Flor
requirement, as there was evidence that “Claimant’s presence at
Lahainaluna School, just as his presence anywhere on the island
of Maui, exacerbated his asthma due to the presence of vog.” As
to the third Flor condition, the DOE maintained that there was
“no evidence that the aggravation of Claimant’s asthma is due to
causes in excess of the ordinary hazards or employment in
general,” as the vog affected the entire island. Therefore, the
LIRAB’s FOF 9 and FOF 10 were correct.9
Van Ness responded that his claim was based on an
injury by disease under the Flor test. He also argued that the
DOE misconstrued Flor as requiring “all technology coordinators .
9
Relatedly, the DOE argued that Van Ness failed to challenge FOF 10
as a point of error and that any arguments regarding FOF 10 should therefore
be disregarded.
Van Ness responded that his argument should not be disregarded, as
FOF 10 was thoroughly discussed as a point of error in the body of his Opening
Brief. [RB at 8] Van Ness argued that FOF 10 was clearly erroneous because
the DOE did not adduce substantial evidence to overcome the presumption of
compensability.
The ICA found that although Van Ness had not raised FOF 10 as a
point of error, he had challenged FOF 10 in the argument section of his
Opening Brief and provided the necessary information to assist the ICA in
identifying his argument. Van Ness v. State, No. CAAP-11-0000775, 2012 WL
6115601, at *2 (Haw. App. Dec. 10, 2012) (mem.).
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. . to have something in their work that causes asthma.” Rather,
the correct analysis was to determine whether a condition,
characteristic to Van Ness’s particular job as a technology
coordinator at Lahainaluna, caused the exacerbation of his
asthma.
B.
The ICA applied the Flor test for providing coverage
for injuries caused by an “occupational disease.” Van Ness v.
State, No. CAAP-11-0000775, 2012 WL 6115601, at *4 (Haw. App.
Dec. 10, 2012) (mem.). Characterizing Van Ness’s claim as a
claim that the exacerbation of his asthma resulted from work-
related vog exposure, the ICA found that the second condition of
the Flor test was met because it was “undisputed that Van Ness
faced actual exposure to vog in his employment[.]” Id. However,
the ICA concluded that Van Ness’s claim did not constitute a
“compensable occupational disease because the DOE produced
substantial evidence” that the first (disease caused by
conditions characteristic of employment) and third (disease due
to causes in excess of ordinary hazards of employment) conditions
of Flor were not met. Id.
Citing Flor, the ICA applied the following standard for
compensable occupational diseases:
[A]n occupational disease requires “a recognizable link
between the disease and some distinctive feature of the
claimant’s job, common to all jobs of that sort.” An
occupational disease cannot be “an ordinary disease of life
to which general public was equally exposed outside of that
employment,” and the disease must “have incidence
substantially higher in that occupation than in usual
occupations or, in case of ordinary disease of life, in
general population.” In other words, the Flor test requires
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that “the employer’s working conditions produced the ailment
as a natural incident of the employee’s occupation in such a
manner as to attach a hazard distinct from and greater than
the hazard attending employment in general.”
Id. (citations omitted) (emphasis added).
The ICA found that Van Ness did not meet this test,
emphasizing the requirement that the feature causing the disease
be “common to all jobs of that sort.” Id. The ICA reasoned that
“Van Ness’s occupation was as a technology coordinator, and his
primary duties were maintaining and repairing technology
equipment.” Id. at *5. “This work, in and of itself, could not
have exacerbated his asthma and Van Ness does not contend that it
does.” Id. Thus, the ICA concluded, “his disease was produced
not by ‘natural incident’ or ‘distinctive feature of the
claimant’s job, common to all jobs of that sort,’ but rather by
his exposure to vog.” Id. (citation omitted) (emphasis added).
The ICA continued, “Vog exposure itself cannot be considered a
condition characteristic of or peculiar to Van Ness’s employment,
however, because it is undisputed that vog affected the entire
island of Maui at the time.” Id.
The ICA held that the LIRAB’s FOF 9, finding that Van
Ness’s work or work environment posed no greater vog exposure
than that posed to the general public, was supported by
substantial evidence rebutting the presumption that Van Ness’s
injury was work-related. Id. In this regard, the ICA cited the
medical reports, finding that the “reports all concluded the Maui
vog exacerbated Van Ness’s asthma, but nothing in those reports
noted any relationship between the exacerbation and Van Ness’s
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employment.” Id. (emphases added). Dr. Tom’s recommendation
that Van Ness transfer to O#ahu rather than to another position
on Maui demonstrated that Van Ness’s “condition was not peculiar
to his employment at Lahainaluna.” Id. Additionally, the ICA
noted the vice principal’s statement that she also experienced
adverse effects of vog and that the vog was heavier in other
parts of Maui. Id. Thus, the ICA concluded that Van Ness “faced
a risk no different and no greater than that faced by any member
of the general public or in another field of work who spent time
outdoors.” Id.
The ICA further emphasized Dr. Arora’s conclusion in
his supplemental report that Van Ness’s exacerbated asthma had
“no relationship to his employment with the DOE.” Id. (brackets
and quotation marks omitted). The ICA noted that Dr. Arora
reviewed “extensive medical records,” which “indicate Van Ness
had a complex medical history and numerous health issues,” and
Dr. Arora “identified a diaphragmatic hernia as a possible cause
or contributing factor of Van Ness’s exacerbated asthma.” Id.
According to the ICA, “Dr. Arora’s reports were sufficiently
specific and credible to constitute substantial evidence, and
given the complexity of Van Ness’s medical history, it was
reasonable for the LIRAB to conclude Van Ness’s condition was
unrelated to his work.” Id. at *6.
In addition, the ICA found that “[o]ther than Van
Ness’s own testimony about his work environment and his duties,
there is no other evidence in the record suggesting that vog
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exposure was a hazard peculiar to his employment or in excess of
the hazards of employment in general.” Id.
The ICA therefore concluded that the LIRAB’s decision
was not clearly erroneous and affirmed the decision. Id.
IV. APPLICATION
A.
On April 1, 2013, Van Ness timely filed the Application
and presented the following questions for review:
A. Is the contraction of a disease compensable under HRS §
386-3 although there is no historical association of that
disease with that particular line of work?
B. Are “ordinary diseases of life” compensable under HRS §
386-3?
C. Should a test similar to the “unitary test” of Royal
State National Insurance Company v. Labor & Industrial
Relations Appeal Board, 53 Haw. 32, 487 P.2d 278 (1971),
be applied to “diseases” under HRS § 386-3?
In his Application, Van Ness argued that Flor did not
limit compensable diseases to those associated with particular
trades. Rather, under Flor, “causation could be . . . peculiar
to the particular ‘occupation, or employment’.” Thus, the ICA
erred in holding that his “claim failed because all technology
coordinator positions do not face asthma exacerbation.”
Van Ness proposed that “[a] test similar to the unitary test of
compensability for injury by ‘accidents’ should also apply to
injury by ‘disease,’ that is, the requirement of HRS § 386-3 is
simply that the disease be proximately caused by or result from
the nature of employment.” At oral argument, counsel for Van
Ness maintained that the Flor test was met, but also extended
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this argument by asking the court to reexamine or overrule the
three-part Flor test and to expressly apply the unitary test to
determine the compensability of injuries by disease under HRS §
386-3(a). MP3: Oral Argument, Hawai#i Supreme Court, at 0:03:00,
0:07:20 (Jun. 20, 213), available at
http://state.hi.us/jud/oa/13/SCOA_062013_11775.mp3.
B.
In response, the DOE maintained that Van Ness, “at
most, met one of the three criteria established by Flor” but that
Flor “requires that all three criteria must exist for an
occupational disease claim to be compensable.”
Alternatively, the DOE argued that the ICA’s ruling
should be upheld even if it misapplied the Flor test because Van
Ness’s injury also did not meet the requirements for
compensability of an injury by accident. The DOE contended that
although “both the Board and ICA decided the case based on the
merits of an occupational disease claim, both should have decided
the claim as an injury by accident claim.” The DOE emphasized
that the LIRAB’s pretrial order identifies the issue as whether
Van Ness “sustained a personal injury to his respiratory system .
. . arising out of and in the course of employment,” which
“connotes an injury by accident claim.” However, at oral
argument, counsel for the DOE stated that although the LIRAB
framed the issue as an injury by accident, it was not necessarily
the DOE’s position that the LIRAB should have decided Van Ness’s
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claim as an injury by accident rather than an injury by disease.
Oral Argument at 00:56:30-00:57:03.
V. STANDARDS OF REVIEW
A. Board decisions
Appellate review of the LIRAB's decision is governed by
HRS § 91–14(g) (1993), which provides that:
Upon review of the record the court may affirm the decision
of the agency or remand the case with instructions for
further proceedings; or it may reverse or modify the
decision and order if the substantial rights of the
petitioners may have been prejudiced because the
administrative findings, conclusions, decisions, or orders
are:
(1) In violation of constitutional or statutory provisions;
or(2) In excess of the statutory authority or jurisdiction
of the agency; or
(3) Made upon unlawful procedure; or
(4) Affected by other error of law; or
(5) Clearly erroneous in view of the reliable, probative,
and substantial evidence on the whole record; or
(6) Arbitrary, or capricious, or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.
Tauese v. State of Haw., Dep’t of Labor & Indus. Relations, 113
Hawai#i 1, 25, 147 P.3d 785, 809 (2006) (quotation marks and
citations omitted).
The LIRAB’s conclusions of law are reviewed de novo,
under the right/wrong standard. Id. Its findings of fact “are
reviewable under the clearly erroneous standard to determine if
the agency decision was clearly erroneous in view of reliable,
probative, and substantial evidence on the whole record.” Id.
(quoting Poe v. Haw. Labor Relations Bd., 87 Hawai#i 191, 195,
953 P.2d 569, 573 (1998)) (quotation marks omitted).
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B. Statutory interpretation
“The interpretation of a statute is a question of law
which this court reviews de novo. When construing a statute, our
foremost obligation is to ascertain and give effect to the
intention of the legislature, which is to be obtained primarily
from the language contained in the statute itself.” Tauese, 113
Hawai#i at 26, 147 P.3d at 810 (quotation marks and citations
omitted).
VI. DISCUSSION
HRS § 386-3(a) (Supp. 2005) provides, “If an employee
suffers personal injury either by accident arising out of and in
the course of the employment or by disease proximately caused by
or resulting from the nature of the employment, the employee’s
employer or the special compensation fund shall pay compensation
to the employee or the employee’s dependents[.]”
Pursuant to HRS § 386-85 (1993), for any workers’
compensation claim, “it shall be presumed, in the absence of
substantial evidence to the contrary . . . [t]hat the claim is
for a covered work injury.” “In workmen’s compensation cases,
the employer carries a heavy burden.” Lawhead v. United Air
Lines, 59 Haw. 551, 559, 584 P.2d 119, 124 (1978). The
presumption imposed by HRS § 386-85 “is not a mere procedural
device that disappears upon the introduction of contrary
evidence.” Akamine v. Hawaiian Packing & Crating Co., 53 Haw.
406, 408, 495 P.2d 1164, 1166 (1972). Rather, “it imposes upon
the employer the burden of going forward with the evidence and
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the burden of persuasion.” Id. The presumption is rebutted
“only by substantial evidence that [the injury] is unrelated to
the employment.” Id.
“The term ‘substantial evidence’ signifies a high
quantum of evidence which, at the minimum, must be ‘relevant and
credible evidence of a quality and quantity sufficient to justify
a conclusion by a reasonable [person] that an injury or death is
not work-connected.’” Flor, 94 Hawai#i at 79, 9 P.3d at 391
(quoting Akamine, 53 Haw. at 408, 495 P.2d at 1166) (emphasis
added). “If the employer fails to adduce substantial evidence to
the contrary, the presumption mandates that the claimant must
prevail.” Akamine, 53 Haw. at 409, 495 P.2d at 1166.
The high burden placed on the employer is attributed to
the purpose of the workers’ compensation law. “[T]he legislature
has decided that work injuries are among the costs of production
which industry is required to bear[.]” Id. “Workmen’s
compensation laws were enacted as a humanitarian measure, to
create legal liability without relation to fault. They represent
a socially enforced bargain: the employee giving up his right to
recover common law damages from the employer in exchange for the
certainty of a statutory award for all work-connected injuries.”
Evanson v. Univ. of Haw., 52 Haw. 595, 598, 483 P.2d 187, 190
(1971).
Accordingly, “[t]his court has consistently construed §
386-85 liberally in accordance with the humanitarian purposes of
workmen’s compensation.” Lawhead, 59 Haw. at 559, 584 P.2d at
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124. Thus, “[i]n addition to the presumption of compensability,
the broad humanitarian purpose of the workers’ compensation
statute read as a whole requires that all reasonable doubts be
resolved in favor of the claimant[.]” Id. at 560, 584 P.2d at
125 (quotation marks and citations omitted) (emphasis added).
See Akamine, 53 Haw. at 409, 495 P.2d at 1166 (“if there is
reasonable doubt as to whether an injury is work-connected, the
humanitarian nature of the statute demands that doubt be resolved
in favor of the claimant”).
A.
In this case, Van Ness alleged that the aggravation of
his asthma resulting from his exposure to vog at Lahainaluna was
a compensable injury by disease. This court has interpreted HRS
§ 386-3 broadly to “reflect[] the policy of the Workmen’s
Compensation Law that an employee should be indemnified for all
infirmities resulting from his employment.” Royal State Nat’l
Ins. Co. v. Labor & Indus. Relations Appeal Bd., 53 Haw. 32, 37,
487 P.2d 278, 281 (1971) (emphasis added) (holding that “psychic
injuries arising out of the employment relationship” are
compensable under the statute). The parties have not contested
that the aggravation of Van Ness’s asthma would constitute a
compensable injury if it was sufficiently connected to his
employment.10
10
In the context of workers’ compensation, “[t]he term ‘disease’
[has been] construed in its broadest dictionary meaning of any ‘serious
derangement of health’ or ‘disordered state of an organism or organ.’” A.
Larson, Workers’ Compensation Law § 52.04[2] (2012) [hereinafter Larson’s].
See Black’s Law Dictionary 535 (9th ed. 2009) (defining “disease” as a
“deviation from the healthy and normal functioning of the body,” “[a]ny
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The parties dispute whether the aggravation of Van
Ness’s asthma was “proximately caused by or resulting from the
nature of the employment.” In this regard, the parties have
focused on the applicability of the three-part test for
occupational diseases established in Flor v. Holguin, 94 Hawai#i
70, 9 P.3d 382 (2000), recon. granted in part, 94 Hawai#i 92, 9
P.3d 404 (2000).
In Flor, the court held that “an employee’s injury
caused by a disease is compensable as an ‘injury by disease,’
pursuant to HRS § 386-3, when the disease (1) is caused by
conditions that are characteristic of or peculiar to the
particular trade, occupation, or employment, (2) results from the
employee’s actual exposure to such working conditions, and (3) is
due to causes in excess of the ordinary hazards of employment in
general.” 94 Hawai#i at 81, 9 P.3d at 393 (citations omitted).
Applying this test, the ICA in this case found that although it
was “undisputed that Van Ness faced actual exposure to vog in his
employment, satisfying the second condition,” “Van Ness’s
condition does not fall within the definition of a compensable
occupational disease because the DOE produced substantial
evidence that the first and third conditions of Flor were not
met.” 2012 WL 6115601, at *4. Similarly, the LIRAB rejected Van
Ness’s argument that his asthma was a compensable disease,
concluding that “[t]he nature and conditions of his employment
disorder; any depraved condition”).
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did not accentuate the exposure” to vog because “the vog was in
the air, and the general public breathed the same air.”
Inasmuch as the ICA and LIRAB considered whether vog
exposure was a natural incident of Van Ness’s occupation as a
technological coordinator, the analyses reflect a conflation of
the injury by disease prong of HRS § 386-3(a). The plain
language of HRS § 386-3(a) provides for two distinct ways in
which an “injury by disease” may be compensable under the
statute: “If an employee suffers personal injury . . . by disease
proximately caused by or resulting from the nature of the
employment, the employee’s employer . . . shall pay compensation
to the employee . . . .” (Emphasis added).
Revised Laws of Hawai#i (RLH) § 97-3 (1955), the
counterpart to HRS § 386-3, provided that “[i]f a workman
receives personal injury . . . by disease proximately caused by
the employment, or resulting from the nature of the employment,
his employer . . . shall pay compensation[.]” The history of the
statute thus demonstrates that disease proximately caused by
employment and disease resulting from the nature of employment
were intended to be distinct, although related, concepts.
A close reading of Flor indicates that the three-part
test articulated in that case is not applicable to situations in
which the disease is alleged to be “proximately caused by”11 the
11
See Black’s Law Dictionary 250 (9th ed. 2009) (defining “proximate
cause” as “[a] cause that is legally sufficient to result in liability”);
Montalvo v. Lapez, 77 Hawai#i 282, 287 n.5, 884 P.2d 345, 350 n.5 (1994) (“For
our purposes, the terms ‘legal cause’ and ‘proximate cause’ are
synonymous[.]”).
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employment, rather than alleged to “result[] from the nature of
the employment.”
In Flor, the claimant filed a workers’ compensation
claim upon being diagnosed with the hepatitis C virus after
decades of working as a dental hygienist for numerous dentists
and periodontists. Id. at 74, 9 P.3d at 386. There was
significant evidence demonstrating that the claimant “probably
had acquired hepatitis C through work exposure to contaminated
blood.” Id. However, there was “no test or procedure that could
reliably isolate either the time of first infection with
hepatitis C or the source of the infection,” and the claimant was
“unable to recall, identify, or otherwise determine the date on
which she contracted hepatitis C.” Id. Given the multiple
employers and lengthy time period involved, and the inability to
isolate the event precipitating the disease, the court stated
that it would analyze the claim as an “injury by disease,” id. at
83-85, 9 P.3d at 395-97, and defined an “injury by disease” as an
injury that “generally developed gradually over a long period of
time” as opposed to “result[ing] from a discrete event.” Id. at
78, 9 P.3d at 390.
Although the court then characterized the issue before
it as “constru[ing] the causation requirements applicable to the
‘injury-by-disease’ prong of HRS § 386-3,” id. at 80, 9 P.3d at
392, the court was clearly focused on the “resulting from the
nature of the employment” prong of injuries by disease. Thus,
the court defined an “occupational disease” as a disease
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“resulting from the nature of the employment.” Id. at 80, 9 P.3d
at 392 (citing Komatsu v. Bd. of Trustees, Employees’ Ret. Sys.,
5 Haw. App. 279, 284, 687 P.2d 1340, 1344 (1984)) (emphasis
added). The court further developed the definition of an
“occupational disease,” explaining that “‘an ailment does not
become an occupational disease simply because it is contracted on
the employer’s premises.’” Id. (quoting Anderson v. General
Motors Corp., 442 A.2d 1359, 1360 (Del. 1982)) (brackets
omitted). Rather,
[t]here must be a recognizable link between the disease and
some distinctive feature of the claimant’s job, common to
all jobs of that sort. In other words, an ailment or
disease is a compensable occupational disease if the
employer’s working conditions produced the ailment as a
natural incident of the employee’s occupation in such a
manner as to attach a hazard distinct from and greater than
the hazard attending employment in general.
94 Hawai#i at 80, 9 P.3d at 392 (emphases added) (citations and
quotation marks omitted). The Flor court then announced its
three-part test for compensating an employee’s injury caused by
disease under HRS § 386-3(a). Id. Based on the facts of that
case, the court determined that the claimant’s “disability,
caused by hepatitis C,” was compensable “inasmuch as the
Employers failed to demonstrate by substantial evidence that
Flor’s disease (1) was not caused by conditions that were
characteristic of or peculiar to her employment as a dental
hygienist, (2) did not result from her actual exposure to such
conditions, and (3) was not due to causes in excess of the
ordinary hazards of employment in general.” Id. at 84-85, 9 P.3d
at 396-97.
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The Flor court distinguished its three-part test from
the “unitary” or “nexus” test used for determining the
compensability of injuries “by accident.” Id. at 80, 9 P.3d at
392. The unitary test “considers whether there is a sufficient
work connection to bring the accident within the scope of the
statute,” and “requires the finding of a causal connection
between the injury and any incidents or conditions of
employment.” Tate v. GTE Hawaiian Tel. Co., 77 Hawai#i 100, 103,
881 P.2d 1246, 1249 (1994).
The Flor court did not examine whether the claimant’s
injury by disease was compensable under the proximate cause
analysis due to the factual nature of the case. However, the
court did not preclude circumstances in which an injury by
disease claim would be compensable under a proximate cause
analysis. On the contrary, the Flor court expressly stated that
“[w]hen a disease causing injury results from an identifiable
accident,” or from a “discrete event—the time and place of which
can be fixed,” “rather than from a peculiar risk of the
employment, it should be compensated as an accidental injury.”
Id. at 78, 9 P.3d at 390 (emphasis added). Thus, the purpose of
the Flor test was to expand coverage under HRS § 386-3 in a case
where the claimant would not have been able to show proximate
cause under the unitary test; the purpose was not to supplant the
proximate cause analysis.12
12
This is consistent with the purpose of occupational disease
legislation generally. The distinction between injuries by accident and by
disease originally developed because occupational diseases were excluded from
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Accordingly, the Flor test for compensability is
limited to determining the compensability of injuries by disease
“resulting from the nature of the employment.” For injuries by
disease “proximately caused by” the employment, we continue to
apply the unitary test.13
B.
The relevant issue under the unitary or “work-
connection approach” is simply whether there is a causal
connection between the injury and any incidents or conditions of
employment:
The work-connection approach rejects the necessity of
establishing temporal, spatial, and circumstantial proximity
coverage under early workers’ compensation laws. See Larson’s § 52.02.
Workers’ compensation statutes “were designed to substitute no-
fault coverage for common law fault remedies,” which provided coverage for
“accidental” injuries. 2 Employment Law § 7.24 Occupational disease (4th
ed.). “Because occupational diseases were not conditions subject to tort
liability, state legislatures did not address those particular problems,” and
most early court decisions did not allow coverage for non-accidental
illnesses. Id. “[T]he earliest kind of occupational disease coverage in the
United States,” beginning in the early 20th century, “took the form of general
inclusion within the term ‘injury’ or within the term ‘disease’.” Larson’s §
52.02.
However, “[w]ith the expansion of occupational disease
legislation, [the] contrast between accidental and occupational disease is
gradually losing its importance, and awards are frequently made without
specifying which category the injury falls in.” Id. at § 52.03[1].
“Jurisdictions having general coverage of occupational disease now usually
define the term to include any disease arising out of exposure to harmful
conditions of the employment, when those conditions are present in a peculiar
or increased degree by comparison with employment generally.” Id. at § 52-1.
13
This court has previously applied the unitary test in cases
involving the compensability of an injury resulting from a disease or the
aggravation of a pre-existing disease, without explicitly identifying whether
it considered the injury to be an injury by accident or by disease under the
statute. See Akamine, 53 Haw. 406, 495 P.2d 1164 (awarding compensation for
aggravation of heart condition resulting in death); Lawhead, 59 Haw. 551, 584
P.2d 119 (holding that “a disease or illness such as influenza is an injury
within the meaning of § 386-3” and awarding compensation because employee
“contracted influenza as a result of her employment”). See also Chung, 63
Haw. 642, 636 P.2d 721 (applying work-connection test to determine that
claimant’s heart attack arose out of and in the course of employment based on
evidence that claimant’s employment activities engaged claimant for long hours
and “generated a substantial amount of mental and emotional stress which is
strongly linked to the production of heart disease”).
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between the injury and employment. Instead, focusing on the
injury’s origin rather than the time and place of its
manifestation, the work-connection approach simply requires
the finding of a causal connection between the injury and
any incidents or conditions of employment.
Chung v. Animal Clinic, Inc., 63 Haw. 642, 648, 636 P.2d 721, 725
(1981) (emphasis added). “[C]ompensation is awarded if the
injury reasonably appears to have flowed from the conditions
under which the employee is required to work.” Royal State Nat’l
Ins. Co. v. Labor & Indus. Relations Appeal Bd., 53 Haw. 32, 37-
38, 487 P.2d 278, 281-82 (1971).
In Akamine, 53 Haw. at 407-08, 495 P.2d at 1165-66, the
court held that the employer and insurance carrier failed to
overcome the presumption of compensability, where an employee
died of a heart attack at work while he unloaded, stacked and
handtrucked cargo. The LIRAB had denied the workers’
compensation claim filed by the employee’s dependents, reasoning
that the employee’s death “was due to his cardiovascular disease
of long standing and that it was not attributable to his
employment[.]” Id. at 407, 495 P.2d at 1165.
In reviewing this decision, the court noted that
“[b]ecause of the relatively higher degree of uncertainty
surrounding causation of heart diseases, the strength of the
presumption is especially formidable” in “cardiac cases.” Id. at
409, 495 P.2d at 1167. The court explained that the presumption
“signals and reflects a strong legislative policy favoring awards
in arguable cases.” Id. In Akamine, there was medical testimony
by two expert witnesses. Id. at 409-10, 495 P.2d at 1167. One
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expert testified that there was no connection between the
employee’s death and his employment, based “on his belief that
heart diseases originate relatively early in one’s life and [the
employee’s] pre-existing pathological condition was the sole
cause of death.” Id. at 410-11, 495 P.2d at 1167 (footnote
omitted). The expert further testified that the employee’s job
was not “extremely exertional” and would not have precipitated a
heart attack. Id. at 411, 495 P.2d at 1168.
The court determined that it would give “little
probative weight” to such testimony. Id. at 410-11, 495 P.2d at
1167-68. The court reasoned that “while it may be sound
medically to say that the work did not ‘cause’ the attack, it may
be bad law, because, [i]n general, existing law treats the
slightest factor of aggravation as an adequate ‘cause’.” Id. at
410, 495 P.2d at 1167 (emphasis added). Thus, it was “legally
irrelevant” whether the employee’s heart attack “might have
occurred at home, on the street or elsewhere while tending to his
private affairs. The only consideration should have been whether
the attack in fact was aggravated or accelerated by his work
activity.” Id. at 413, 495 P.2d at 1169 (emphasis added).
Based on this standard, the court found that a doctor’s
testimony that he was unable to render an opinion as to whether
the heart attack was related to the employee’s work activity
“represents a salient index of the absence of substantial
evidence to the contrary.” Id. at 414, 495 P.2d at 1169
(emphasis added). The court found that the employee’s claim was
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compensable, and reversed and remanded for a determination of the
amount of the award. Id. at 414, 495 P.2d at 1170.
Following Akamine, this court has continued to hold
that “the slightest aggravation or acceleration of an injury by
the employment activity mandates compensation.” DeFries v. Ass’n
of Owners, 999 Wilder, 57 Haw. 296, 309, 555 P.2d 855, 862 (1976)
(holding that claimant was entitled to recover for injuries
resulting from stumble that aggravated or accelerated the
arthritic condition of his knee). See Chung, 63 Haw. at 651-52,
636 P.2d at 727-28 (claimant’s heart attack was aggravated or
accelerated by work activity); Flor, 94 Hawai#i at 85, 9 P.3d at
397 (applying principle that primary focus of medical testimony
is “whether employment situation in any way contributed to the
employee’s injury”); Korsak v. Haw. Permanente Med. Group, Inc.,
94 Hawai#i 257, 260, 12 P.3d 357, 360 (App. 1999) (applying
slightest aggravation test and comparing facts to Akamine, which
held that “[t]he primary focus of the medical testimony should
have been a discussion on whether the employment effort, whether
great or little, in any way aggravated [the] heart condition
which resulted in his death”) (quotation marks and citation
omitted).
In Lawhead, 59 Haw. at 558, 584 P.2d at 124, the court
held that “[i]n view of the broad scope of [HRS § 386-3], . . . a
disease or illness such as influenza is an injury within the
meaning of § 386-3.” In that case, the claimant was a flight
attendant. Id. at 553, 584 P.2d at 121. On a certain flight,
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she “worked in the galley section of the aircraft where the
temperature was extremely low.” Id. During a stopover, she
stayed in accommodations arranged by her employer, where the air
was very dry due to a “defective heating and air-conditioning
system.” Id. She woke up the next day with a “dry and sore
throat” and upon returning home she was diagnosed with influenza.
Id.
Based on these facts, the court held that the claimant
was entitled to compensation. Id. at 560, 584 P.2d at 125-26.
The court rejected the employer’s contention that the claim
should be denied because the claimant “failed to show that she
was exposed to an increased risk attributable to work.” Id. at
560, 584 P.2d at 125. The court noted that a nearly identical
argument was rejected as legally irrelevant in Akamine, and
explained, “The relevant point is not whether a claimant would
more likely have suffered an injury at work than elsewhere but
whether her injury occurring in the course of employment was work
related.” Id. In announcing its holding, the court referenced
the statutory language for injuries by disease: “[T]here was
evidence that she suffered from an illness proximately caused by
or resulting from the nature of her employment. Since United
failed to present substantial evidence to rebut the presumption
that her claim was for a covered work injury, appellee must
prevail.” Id. at 560, 584 P.2d at 125-26 (emphasis added).
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C.
In this case, the DOE failed to present substantial
evidence to overcome the statutory presumption of compensability.
As stated, “[t]he statue nowhere requires . . . some preliminary
showing . . . before the presumption will be triggered. Rather,
HRS § 386-85 clearly dictates that coverage will be presumed at
the outset, subject to being rebutted by substantial evidence to
the contrary.” Chung, 63 Haw. at 650-51, 636 P.2d at 727.
Here, the evidence was undisputed that Van Ness had a
pre-existing asthma condition. It was also undisputed that
exposure to vog aggravated Van Ness’s condition. Dr. Mathison
diagnosed Van Ness with “[m]ild persistent asthma with history of
exacerbations with exposures to volcanic smoke-ash-pollution,”
and Dr. Tom recommended that Van Ness be transferred out of Maui
because of his “asthma condition, which is exacerbated by vog.”
Dr. Arora’s supplemental report concluded that Van Ness’s medical
history is “compatible with mild exacerbation of his asthma while
in Maui because of vog conditions.”
The State’s 2008 advisory further recognized that
elevated levels of sulfur dioxide as a result of volcanic
emissions “pose an immediate health threat to people who have
asthma and other respiratory conditions.” The State’s “Health
Effects” notice confirmed that “[p]eople with asthma who are
physically active outdoors are most likely to experience the
health effects of [sulfur dioxide],” which may include “wheezing,
chest tightness, and shortness of breath.” Van Ness testified to
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experiencing such health effects when exposed to vog at work.
Thus, his asthma condition was clearly exacerbated and aggravated
by exposure to vog.
It was further undisputed that Van Ness faced actual
exposure to vog while employed at Lahainaluna. This was
recognized by both the LIRAB and the ICA. The LIRAB found that
Van Ness’s “work or work environment posed no greater vog
exposure than that posed to the general public,” (emphasis
added), implicitly finding that Van Ness was exposed to vog at
work, while the ICA expressly stated that it was “undisputed that
Van Ness faced actual exposure to vog in his employment.” 2012
WL 6115601, at *4. Additionally, there was evidence that the vog
on Maui was particularly severe around December 2005. Vice
Principal Dennis, who did not have a pre-existing asthma
condition, confirmed that she “experienced intense headaches”
during that time because of the vog.
Finally, Van Ness testified that his exposure to vog at
Lahainaluna, coupled with the requirements of his employment, the
layout of the campus, and the severity of the vog in late 2005,
caused his condition to worsen. Van Ness’s employment as a
technology coordinator at Lahainaluna was affected by the campus’
location and layout. Lahainaluna’s campus is situated on a
mountain side, with stairs providing most of the access to the
school buildings. Van Ness’s office was located at the highest
elevation point of the campus. During the seven to eight hours a
day that he was generally present on campus, Van Ness estimated
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that he spent less than five percent of his time in his office.
In order to service the computers at the lower parts of the
campus, Van Ness was required to repeatedly climb up and down the
school stairs daily. He estimated that there were 140 stairs or
about “three or four floors” down to the parking lot, and then
another “hike down” to the final section of buildings. The
stairs went “up the side of the hill” and there were also
“switchbacks.” Van Ness explained that it took “quite a bit of
effort” and about twenty minutes for him to get back to his
office from the administration building.
Van Ness testified that the exposure to vog caused many
issues with “strength” and his ability to breathe. He testified
that when the vog was severe, he experienced coughing and
wheezing, as well as a “sharp” “stabbing pain” from coughing.
This made it very difficult for him to move around the
Lahainaluna campus. His coughing worsened when he walked uphill
and climbed stairs back to his office from the lower campus, and
he would have to take breaks between stair levels because of the
coughing and wheezing that the vog caused.
Accordingly, it is clear that the “effort or strain”
Van Ness experienced with his respiratory condition as a result
of vog exposure “occur[ed] during the course of the employment
and as an ordinary or usual incident of the work,” given that his
employment required strenuous activity and the strenuous activity
caused the exacerbation of his asthma. Akamine, 53 Haw. at 413,
495 P.2d at 1169. The LIRAB’s finding that Van Ness’s “work
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environment posed no greater vog exposure than that posed to the
general public” is inapposite, inasmuch as the “relevant point is
not whether [Van Ness] would more likely have suffered an injury
at work than elsewhere[,] but whether [his] injury occurring in
the course of employment was work related.” Lawhead, 59 Haw. at
560, 584 P.2d at 125-26.
The evidence offered by the DOE to rebut the statutory
presumption was Dr. Arora’s opinion in his supplemental report
that the exacerbation of Van Ness’s asthma was “temporary and
reversible.” However, as the court held in Akamine, “existing
law treats the slightest factor of aggravation as an adequate
‘cause’” of injury. 53 Haw. at 410, 495 P.2d at 1167 (emphasis
added).
Dr. Arora also concluded that it was “impossible to
determine” if the exacerbation of Van Ness’s asthma was caused by
the vog or by the diaphragmatic hernia that developed around the
same time. While the ICA relied on this opinion to conclude that
Dr. Arora’s reports constituted substantial evidence for the
LIRAB to conclude that Van Ness’s condition was unrelated to
work, 2012 WL 6115601, at *6, the LIRAB did not rely on Dr.
Arora’s opinion in this regard. Furthermore, Dr. Arora’s opinion
that it was impossible to determine the cause of the aggravation
does not constitute substantial evidence rebutting the
presumption. On the contrary, pursuant to Akamine, doubt as to
the cause of the injury “represents a salient index of the
absence of substantial evidence” required to overcome the
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presumption that the claim is compensable. 53 Haw. at 414, 495
P.2d at 1169 (emphasis added). In any event, the presumption of
compensability and “the broad humanitarian purpose of the
workers’ compensation statute . . . requires that all reasonable
doubts be resolved in favor of the claimant.” Lawhead, 59 Haw.
at 560, 584 P.2d at 125 (quotation marks and citations omitted)
(emphasis added).
The LIRAB, however, found that the “hazard from vog
exposure [Van Ness] faced while on the campus of Lahainaluna
School was no greater hazard or risk than that faced by others
off of the campus,” and concluded that “[t]he nature and
conditions of [Van Ness’s] employment did not accentuate the
exposure. Rather, the vog was in the air, and the general public
breathed the same air.”
As discussed, the evidence overwhelmingly demonstrated
that Van Ness’s exposure to vog at work, combined with the
surrounding circumstances of his employment and his pre-existing
condition, resulted in the exacerbation of his asthma. Thus, the
aggravation of Van Ness’s asthma was causally connected to the
“incidents or conditions” of his employment. See Chung, 63 Haw.
at 648, 636 P.2d at 725 (“the work-connection approach simply
requires the finding of a causal connection between the injury
and any incidents or conditions of employment”). The LIRAB’s
finding and conclusion failed to properly consider Van Ness’s
pre-existing condition and the fact that the general public was
not exposed to the vog in the same manner as Van Ness. Therefore
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the LIRAB’s finding is clearly erroneous and the conclusion of
law is wrong.14
The DOE failed to present substantial evidence to
overcome the presumption that the aggravation of Van Ness’s
asthma was an injury “by disease proximately caused by” his
employment. See Miyamoto v. Wahiawa General Hosp., 101 Hawai#i
293, 310-11, 67 P.3d 792, 809-10 (App. 2003) (holding that LIRAB
misapplied statutory presumption that claimant’s injuries were
work-related, reversing LIRAB’s judgment and remanding for a
determination of the amount of compensation to be awarded);
Korsak v. Haw. Permanente Med. Group, Inc., 94 Hawai#i 257, 261-
62, 12 P.3d 357, 361-62 (App. 1999) (reversing LIRAB’s decision
denying benefits and remanding for determination of compensation
and apportionment, given that undisputed facts were not
sufficient “to constitute substantial evidence to rebut the
presumption” of compensability), affirmed by 94 Hawai#i 297, 309,
12 P.3d 1238, 1250 (2000) (affirming ICA’s reversal of LIRAB
decision and ICA’s remand to the LIRAB for determination of
14
It is somewhat unclear what standard the LIRAB applied in denying
Van Ness’s claim, as the LIRAB referenced language consistent with Flor as
well as language referring to the statutory standard for accidental injuries.
As stated, the LIRAB erred in applying the Flor test. The LIRAB also erred in
the way it applied the unitary work-connection test.
The LIRAB’s pretrial order characterized the claim as an injury by
accident, and the LIRAB’s decision concluded that Van Ness “did not sustain a
personal injury to his respiratory system, on December 23, 2005, arising out
of and in the course of employment.” The LIRAB’s basis for its conclusion was
simply that Van Ness “was not at work or even on Maui on December 23, 2005.”
However, as stated, the work-connection approach “rejects the necFessity of
establishing temporal, spatial, and circumstantial proximity between the
injury and employment.” Chung, 63 Haw. at 648, 636 P.2d at 725. The focus is
on the “injury’s origin rather than the time and place of its manifestation.”
Id. Accordingly, the LIRAB clearly erred in its application of the unitary
test.
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compensation and apportionment); DeFries, 57 Haw. at 309, 555
P.2d at 863 (reversing LIRAB’s judgment and remanding for
determination of amount of compensation); Akamine, 53 Haw. at
415, 495 P.2d at 1170 (same).
Accordingly, Van Ness’s claim is for a covered work
injury under HRS § 386-3.
VII.
Based on the foregoing, we vacate the ICA’s judgment
and the LIRAB’s decision and order. The case is remanded to the
LIRAB for a determination of the amount of compensation to be
awarded.15
Wayne H. Mukaida /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Steve Miyasaka
for respondent /s/ Simeon R. Acoba, Jr.
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
15
As appropriate, the LIRAB may consider the DOE’s argument
regarding the suspension of Van Ness’s right to claim workers’ compensation
benefits. See supra note 3.
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