ATTORNEY: PASSIVE-SMOKE AWARD IS A FIRST

Massachusetts Lawyers Weekly, December 23, 1991

The apparent precedent may be a small one, but anti-smoking forces consider it an important one.  Late in November, her employer,the Massachusetts Turnpike Authority, decided not to appeal an October 2nd ruling by a Department of Industrial Accidents administrative judge awarding workers’ compensation benefits to a woman who claimed that secondhand cigarette smoke in the workplace had caused her to become disabled. Administrative Judge Diane L. Solomon ruled that the worker could receive the benefits despite the fact that she had smoked for 29 years.

The woman’s attorney, workers’ compensation lawyer J. Channing Migner, says he believes the decision by Solomon is the first in Massachusetts to award workers’ compensation benefits for health problems resulting from passive workplace smoke.

Edward L. Sweda Jr., an attorney with the Boston-based Group Against Smoking Pollution (GASP), says it is the first such award he’s heard of.  Sweda says that the decision means that employers who fail to provide smoke-free work areas are “exposing themselves to significant potential liability.” Sweda says that while the decision apparently is the first in Massachusetts, at least four other states have awarded workers’ compensation benefits to persons claiming that workplace smoke has caused health problems.

“It’s a precedent in that it certainly gives notice to employers that they’ ve got to be careful about work environments,” Migner says.  His client had smoked about one pack of cigarettes daily for more than 29 years, but she quit in 1980 at about the same time she transferred from he remployer’s Boston office to one in Weston, where she was as engineering and maintenance assistant.

The client told Solomon that she had been exposed to a great deal of cigarette smoke in the Weston office, where she worked for six years until transferring to the division in her home town of Auburn. There, she worked in a small trailer where the presence of secondary smoke increased, she told the judge.  She developed a cough and conditions of chronic obstructive pulmonary disease (COPD) while working in Auburn. The condition worsened, and she was forced to leave her job in May 1988.

Solomon ruled that her condition largely was caused by her own history as a smoker, but “the passive smoke to which the employee was exposed at work over a period of years clearly exacerbated her underlying COPD, promoting her symptomatology and rendering her presently disabled.”

Migner’s key expert was Dr. Joseph DiFranza, a Fitchburg physician who testified that the woman’s preexisting condition was exacerbated by the secondhand smoke.  Migner says the case was the first related to workplace smoking that he’s had.

“My father died of lung disease a few years ago, although it wasn’t from secondhand smoke,” he says, “So I have an interest in it.”  -Dick Dahl