Oral Argument Before the Intermediate Court of Appeals

No. CAAP-11-0000775 Wednesday, November 14, 2012, 10 a.m.

LYNEDON A. VAN NESS, Claimant-Appellant, v. STATE OF HAWAI`I, DEPARTMENT OF EDUCATION, Employer-Appellee, self-insured.

Attorney(s) for Claimant-Appellant:

Wayne H. Mukaida

Attorney(s) for Employer-Appellee:

David M. Louie, Attorney General; James E. Halvorson and Steve K. Miyasaka, Deputy Attorneys General

COURT: Foley, Fujise, and Reifurth, JJ.

SPECIAL NOTE: The above argument will take place in the Supreme Court courtroom on the Second Floor of Ali`iolani Hale, 417 South King Street, Honolulu, Hawai`i.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

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

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

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

Van Ness also challenges the following Conclusion of Law:

Claimant argues that his asthma was a compensable disease caused by conditions peculiar to his particular employment with Lahainaluna School and was in excess of ordinary hazards or risks faced by the general public.

Claimant also argues that although others in the community were required to breathe the same air, they may not have been required to do work that was comparably strenuous to the work required of him. The Board is not persuaded by and does not adopt Claimant's argument.

The Board further concludes that exposure to vog was not accentuated or made worse by the nature and conditions of Claimant's employment.

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.

Claimant further argues that, but for work, he would otherwise have been in a filtered environment at his home. However, the Board is not persuaded by and does not accept this argument, since the relevant comparison is made to the general public's exposure, not Claimant's alleged comparatively hermetic and sterile home environment.

 

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