HOFFMANN LAW FIRM, PC

SECONDHAND SMOKE:

Q: Can a worker who has preexisting asthma, or another personal health condition, aggravated by secondhand smoke recover workers' compensation benefits?

A: At this point, no Iowa court is found to have awarded workers' compensation benefits for asthma, or other personal health conditions, aggravated by secondhand smoke in the work place. However, New York has held that two on-the-job asthma episodes requiring immediate medical attention were covered by the employer's workers' compensation. JOHANNESEN v. NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, 84 N.Y.2d 129 (1994), see, also, ANR, Rights of Nonsmokers, SourceWatch, Secondhand smoke workers compensation cases and deaths, and, the Centers for Disease Control and Prevention, Nathan's Story and Videos; Ellie's Story and Videos; Jamison's Story and Videos; and Second Hand Smoke and Casino Dealers. Workers' compensation is generally a "no fault" insurance, so voluntarily taking a job involving secondhand smoke exposure may not be a defense, but proving medical causation may be difficult if you yourself are a smoker, or if you have non-work connected secondhand exposures. See, Legal Risks to Employers Who Allow Smoking in the Workplace.

In the New York case, the claimant worked with approximately 50 employees in a single room office crammed with desks and file cabinets. Of the 50 co-employees, at least half of them smoked. Reliance was placed on poor ventilation in the office and the close proximity of the claimant to the smoking employees.

The claimant was diagnosed as suffering from bronchial asthma aggravated by exposure to the tobacco smoke and dust in the office which accounted for two sudden asthmatic attacks while at work. The court held that exposure to secondhand smoke which lead to the asthma episodes requiring immediate emergency medical attention met the requirement of "accidental injury" for workers' compensation benefits to be awarded.

Note that, although, as of 7-1-08 smoking in the workplace is very limited, the NOTICE and STATUTE OF LIMITATIONS rules may still allow for later claims.

If you have questions regarding making, or defending, a claim of this kind you should consult an attorney, and contact your insurance carrier.

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