The fate of a lawsuit filed by a researcher severely injured in a lab accident may come down to what her employment status was at the University of Hawaii Manoa.

Thea Ekins-Coward was a postdoctoral fellow when the explosion occurred in 2016; she filed a lawsuit against UH claiming negligence in 2017.

The question about her employment status may elevate the case to the Hawaii Supreme Court after attorneys for Ekins-Coward filed a petition to the state’s high court last month, contending she was never a UH employee.

UH lawyers, who declined to comment for this report, argue in court documents that Ekins-Coward cannot pursue restitution in court. They say her only recourse is workers’ compensation.

Although postdoctoral fellows are not considered employees while they are conducting research, a UH internal policy says they may be “treated as employees only for workers’ compensation benefits,” according to Ekins-Coward’s attorneys. They say this was not made known to her until after the explosion.

“At least at the beginning, they made it a point to say that she was not an employee,” Claire Choo, one of Ekins-Coward’s attorneys, told Civil Beat. “She only found out after she was in the hospital.”

In March, Circuit Court Judge Bert Ayabe, agreed with the university’s argument that the court did not have jurisdiction in the case. Ayabe ruled that the decision must be left up to State Department of Labor and Industrial Relations Director Leonard Hoshijo.

Hoshijo could not be reached for comment.

In response, Ekins-Coward’s attorneys filed a petition with the Supreme Court to keep the case in the lower trial court and away from the labor department. The court has not indicated whether it will rule on the petition.

“The outcome we’re seeking is justice for my client,” Choo said. “And we contend that it’s the university’s fault.”

UH has not said how much financial compensation it would offer Ekins-Coward through workers’ compensation, Choo said.

Court documents also don’t state what financial compensation she is seeking. That would be determined at a trial, Choo said.

A trial was originally set for May 2019, but that has been put off pending a ruling by the labor department.

First Insurance Co. of Hawaii, UH’s workers’ compensation adjustor, paid nearly $43,000 to cover Ekins-Coward’s medical expenses, according to court documents.

She was working on an experiment in March 2016 when a cylinder exploded. She lost her right arm above the elbow and suffered burns and nerve damage to her ear, the documents said.

The university told her wife, Amy, that Ekins-Coward would not be eligible for workers’ compensation two days after the explosion, according to the Supreme Court petition, but then informed her attorneys that workers’ compensation was the only option pursuant to university policy.

Ekins-Coward’s lawsuit filed in 2017 alleges that the university did not provide adequate safety training regarding compressed gas cylinders. The UH responded that the training was adequate.

Addressing Hazards

The Hawaii Occupational Safety and Health Division initially fined UH $115,500 in 2016. UH paid $69,300 after a settlement agreement, the magazine Science reported.

The cause of the explosion was a static charge caused by a digital pressure gauge on a gas tank, according to a report by the University of California Center for Laboratory Safety, which conducted an independent investigation on behalf of UH.

“Serious deficiencies in the institution’s approach to laboratory safety contributed to a lapse in proper risk assessment and lack of a culture of safety that ultimately led to the accident,” University of California researchers wrote in a second report to UH.

The university instructed Ekins-Coward to use a type of digital gauge that was not designed to be used around explosive gases, the lawsuit states.

The University of California team wrote that UH had a myriad of problems relating to laboratory safety, chemical hygiene, training and operating procedures.

“There was a big laundry list of stuff to improve lab safety,” UH spokesman Dan Meisenzhal told Civil Beat. Since 2016, all the recommendations from the University of California have been implemented, he said.

In January, UH launched Hooponopono, software that helps to assess and identify hazardous materials related to research, according to a press release.

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Read the Supreme Court petition:

Ekins-Coward Supreme Court Petition (Text)