County can legally take funds as workers’ comp reimbursement
WAILUKU - Lanai plane crash survivor Doug Miller told a Maui County Council committee Friday to "do the right thing" and allow the survivors and families of the deceased to keep their settlement money from a lawsuit with the airline, Maui Air.
Miller and other testifiers told the Committee of the Whole that, under state law, the county may seek reimbursement from settlement funds of money it paid out as workers' compensation to the victims of the 2014 crash.
The Maui Air Tours chartered flight crashed on Lanai on Feb. 26, 2014, killing the pilot, Richard "Dick" Rooney; and two Maui County Planning Department employees - Tremaine Balberdi, a secretary, and Kathleen Kern, a planner. Severely injured in the crash were Miller, a planner; Mark King, a geographical information systems analyst with the Planning Department; and Deputy Corporation Counsel James Giroux.
At least two investigations have blamed pilot error for the crash. The aircraft was heading to Maui after a night meeting on Lanai.
Miller, King and Giroux were able to climb out of the burning plane after it crashed.
After spending about two hours in executive session discussing the victims' claims and other agenda matters, the committee recommended approval of the claims for the five employees. The resolution addressing the claims is scheduled to be taken up at the next council meeting April 1.
No specific information about the claims was disclosed in open session during the committee meeting.
Because the cases are still in litigation, details of the committee's deliberations could not be released, said Office of Council Services spokeswoman Kit Zulueta.
In an emailed statement, committee Chairman Don Guzman said: "I want to thank those who came out to share their thoughts - co-workers, family members and friends of the Lanai plane crash victims. I admire their courage despite the difficult nature of the topic."
Before going into closed executive session, Deputy Corporation Counsel Caleb Rowe said that state law creates a lien on behalf of the employer, for each employee, when a third party is at fault in a situation such as the Lanai crash.
Rowe said how much money is tied to each employee would be shared in executive session because there is ongoing litigation and medical records of the victims may be discussed.
In asking that his settlement money be left untouched, Miller told the committee: "My life has changed forever. Today I have visible scaring on my head, face, hands, arms and legs from the fire and the skin graft surgery.
"I've lost the sensitivity to heat and sharp objects on the grafted skin. I've lost my sense of smell and can no longer enjoy the fragrance of flowers or the smell of great food, but more importantly I cannot smell dangerous gases putting me at risk. Since the crash, getting on an airplane is extremely stressful, and this presents a serious problem for someone living on an island that has only one option for off-island travel," Miller said.
He said the money for medical expenses from the airline is not enough to cover all of his costs, and he hopes to have the settlement money to help him pay for those costs.
"Fortunately, Maui County has the ability to prevent their workers' comp carrier from taking the victims' award money," he said. "Therefore, I urge the good members of the Maui County Council to do the right thing for the plane crash victims and their families and to choose not to enable their workers' comp carriers to pick the pockets of the victims of this tragic event and force us to pay for past and future medical costs stemming from this tragic event that occurred on the job."
Miller's testimony was echoed by his co-workers who, like him, took time off from their jobs to testify.
The co-workers and family members of the victims asked council members to leave the settlement money untouched.
In open session, Corporation Counsel Pat Wong described the situation as "very, very, delicate circumstances."
The Department of the Corporation Counsel has the obligation to present the law to council members, he said.
"Being mindful of that, please understand that it is very difficult to discuss this topic. I understand the members may have a difficult time," Wong told the committee.
He reminded council members that the workers' compensation statute is a state, not a county, law.
"Add in that it is our obligation to be mindful of the fiduciary responsibility to the rest of the county," Wong said.
Deputy Planning Director Michele Chouteau McLean expressed her support for the employees.
She told the committee: "I believe these employees and their families deserve everything the county can offer them. We realize that you have few options, and simply ask that you choose whichever option will support these folks the most, even if that option costs the county the most."
She praised the victims and commended King and Miller, who continue to do their work with the Planning Department.
"Even after all they have been through, they want to keep doing it. They deserve nothing less than our whole-hearted appreciation and respect, and as a great financial settlement that a government employer can offer," McLean said.
Balberdi's husband of 32 years, George, expressed his continued sadness over this wife's death and wept throughout his testimony.
"Life has never been the same. It's not an easy thing," he said. "When I'm home, she's not there. When I'm shopping, she's not there."
"She will never be with me, never ever again." he said. "My heart has been broken so much, that nobody knows what I'm going through inside."
Original article can be found here: http://www.mauinews.com
Kathleen Kern
Tremaine Balberdi
Nonscheduled 14 CFR Part 135: Air Taxi & Commuter
Accident occurred Wednesday, February 26, 2014 in Lanai City, HI
Probable Cause Approval Date: 10/21/2015
Aircraft: PIPER PA31, registration: N483VA
Injuries: 3 Fatal, 3 Serious.
NTSB investigators either traveled in support of this investigation or conducted a significant amount of investigative work without any travel, and used data obtained from various sources to prepare this aircraft accident report.
The airplane departed during dark (moonless) night conditions over remote terrain with few ground-based light sources to provide visual cues. Weather reports indicated strong gusting wind from the northeast. According to a surviving passenger, shortly after takeoff, the pilot started a right turn; the bank angle continued to increase, and the airplane impacted terrain in a steep right bank. The accident site was about 1 mile from the airport at a location consistent with the airplane departing to the northeast and turning right about 180 degrees before ground impact. The operator’s chief pilot reported that the pilot likely turned right after takeoff to fly direct to the navigational aid located southwest of the airport in order to escape the terrain-induced turbulence (downdrafts) near the mountain range northeast of the airport. Examination of the airplane wreckage revealed damage and ground scars consistent with a high-energy, low-angle impact during a right turn. No evidence was found of preimpact mechanical malfunctions or failures that would have precluded normal operation. It is likely that the pilot became spatially disoriented during the right turn. Although visual meteorological conditions prevailed, no natural horizon and few external visual references were available during the departure. This increased the importance for the pilot to monitor the airplane’s flight instruments to maintain awareness of its attitude and altitude. During the turn, the pilot was likely performing the additional task of engaging the autopilot, which was located on the center console below the throttle quadrant. The combination of conducting a turn with few visual references in gusting wind conditions while engaging the autopilot left the pilot vulnerable to visual and vestibular illusions and reduced his awareness of the airplane’s attitude, altitude, and trajectory. Based on toxicology findings, the pilot most likely had symptoms of an upper respiratory infection but the investigation was unable to determine what effects these symptoms may have had on his performance. A therapeutic level of doxylamine, a sedating antihistamine, was detected, and impairment by doxylamine most likely contributed to the development of spatial disorientation.
The National Transportation Safety Board determines the probable cause(s) of this accident as follows:
The pilot’s spatial disorientation while turning during flight in dark night conditions and terrain-induced turbulence, which resulted in controlled flight into terrain. Contributing to the accident was the pilot’s impairment from a sedating antihistamine.
http://www.ntsb.gov
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