Volcanic smog affecting entire island blows away comp for coordinator

In Hawaii, an occupational disease is compensable if it is caused by conditions that are characteristic of or peculiar to the particular trade, occupation, or employment.

Case name: Van Ness v. State of Hawaii, No. CAAP-11-0000775 (Hawaii Ct. App. 12/10/12).

Ruling: The Hawaii Intermediate Court of Appeals held that a coordinator was not entitled to benefits for the aggravation of his asthma and bronchitis.

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What it means: In Hawaii, an occupational disease is compensable if it is caused by conditions that are characteristic of or peculiar to the particular trade, occupation, or employment.

Summary: A technology coordinator for a high school had asthma, which he controlled with medication. He spent the majority of his time outside, walking between buildings on the school's campus. Many of the buildings did not have air conditioning, and the windows were left open. The island experienced days of unusually severe vog and air pollution caused by volcanic emissions. He experienced coughing and wheezing, and his medication no longer worked. He was diagnosed with chronic bronchitis. Three physicians opined that the vog worsened his symptoms. One doctor recommended that he transfer to a different island to avoid further exacerbation by the vog. The coordinator sought workers' compensation benefits, claiming that the vog exposure at work exacerbated his asthma and bronchitis. The Hawaii Intermediate Court of Appeals held that he was not entitled to compensation.

It was undisputed that the coordinator faced exposure to vog in his employment. The court explained that vog exposure would not be a condition characteristic of or peculiar to his employment because the vog affected the entire island. He argued that his work environment and duties made his employment unique and created a higher hazard of vog exposure. However, the court found that the hazard he faced while at the school was no greater risk than that faced by others off campus.

The court pointed out that none of the doctor's reports noted any relationship between the exacerbation and his employment. One doctor recommended that he transfer to another area. The court said that this indicated that his condition was not peculiar to his employment at the school but was due to his presence on the island.

Read more at the WorkersComp Forum homepage.

March 18, 2013

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