No. SCWC-11-0000775, Thursday, June 20, 2013, 10 a.m.

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

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner:

Wayne H. Mukaida

Attorneys for Respondent:

James E. Halvorson and Steve K. Miyasaka, Deputy Attorneys General

NOTE: Order accepting Application for Writ of Certiorari, filed 05/09/13.

COURT: MER, CJ; PAN, SRA, SSM, & RWP, JJ.

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Brief Description:

This appeal arises from the Petitioner/Claimant-Appellant’s (Petitioner) claim for workers’ compensation benefits under Hawaiʻi Revised Statutes (HRS) § 386-3. Petitioner alleged that he was exposed to vog as a result of his employment with Respondent/Employer-Appellee State of Hawai`i, Department of Education (Respondent), at a school on Maui. Petitioner alleged that this exposure resulted in the exacerbation of his asthma, bronchitis and other respiratory problems. The Department of Labor and Industrial Relations denied his claim. The Labor and Industrial Relations Appeals Board (LIRAB) affirmed this decision, reasoning that Petitioner’s “personal injury to his respiratory system” did not “arise out of and in the course of employment.”

The Intermediate Court of Appeals affirmed the LIRAB’s decision by applying the three-part test for compensability of occupational diseases established in Flor v. Holguin, 94 Hawai`i 70, 9 P.3d 382 (2000) (disease compensable if caused by conditions characteristic of or peculiar to employment; results from employee’s actual exposure to such working conditions; and is due to causes in excess of ordinary hazards of employment in general).

In his application for writ of certiorari to this court, Petitioner maintains that the exacerbation of his asthma is compensable under the Flor test and under HRS § 386-3, which provides that an injury by disease is compensable if it is proximately caused by or results from the nature of the employment. Respondent argues that Petitioner’s alleged injury is not compensable because his asthma was not characteristic of or associated with his occupation.