Smoke-Free Environments Law Project
The Center for Social Gerontology, Inc.
2307 Shelby Avenue
Ann Arbor, Michigan 48103
734 665-1126 • fax 734 665-2071 • sfelp@tcsg.org
WORKER'S COMPENSATION CLAIMS
& ENVIRONMENTAL TOBACCO SMOKE
OVERVIEW:
The Michigan Worker's Compensation
Law (MCL ¤ 418.101) enables individuals to seek monetary benefits for bodily
injury caused or aggravated by employment-related accidents or diseases. While
there is currently limited case law in Michigan involving such claims based on
exposure to Environmental Tobacco Smoke (ETS), there have been a number of
employee claims filed in which Worker's Compensation benefits were sought due
to an occupational disease alleged to have been caused by ETS in the workplace.
Michigan cases have gone both ways on ETS-related claims, but it is clear the
Worker's Compensation Commission recognizes ETS as a cause of certain
occupational diseases, especially those related to lung and respiratory
problems.
CAUSAL CONNECTION BETWEEN DISEASE/INJURY AND ETS IN
WORKPLACE:
As in other Worker's Compensation
cases, the burden is on the employee to demonstrate by a preponderance of the
evidence that there is a causal connection between his/her disease and ETS
encountered in the workplace setting. This means that the evidence - generally
medical evidence -- supporting the claim of a causal connection between ETS and
an occupational disease simply has to outweigh opposing evidence.
NOTICE TO THE EMPLOYER:
The employee filing a claim for
Worker's Compensation benefits has an obligation to have affirmatively notified
or communicated to the employer that ETS in the workplace was causing injury or
other physical conditions to the employee. This notice is to assure that the
employer is aware of the workplace conditions causing the physical harm to the
employee, and to enable the employer to attempt to make a reasonable
accommodation for the employee. Without this prior notice and opportunity for
the employer to respond, the Michigan Worker's Compensation Appellate Commission
has denied benefits and has stated that such benefits would have been denied
even if the employee had been able to demonstrate a causal connection between
an occupational disease and ETS in the workplace.
REASONABLE ACCOMMODATION:
When the employee notifies the
employer that s/he is suffering from an injury or physical condition due to ETS
in the workplace setting, it is clear that the employer has an obligation to
make reasonable accommodations to address the problem. If reasonable
accommodations are not taken by the employer, the Michigan Worker's
Compensation Appellate Commission has awarded benefits to an employee who had
demonstrated a causal connection between ETS in the workplace and lung disease.
If reasonable accommodations are taken by the employer or offered to the
employee and the employee rejects them, the Michigan Worker's Compensation
Appellate Commission has denied benefits to the employee. What is a reasonable
accommodation will vary with the specific circumstances of the case.
EACH CASE DECIDED ON ITS OWN MERITS/FACT:
The success or failure of
ETS-related Worker's Compensation claims will, of course, depend on the facts
of each claim, but ETS-related Worker's Compensation claims have been
successful in Michigan and other states.
RELEVANT CASE LAW:
The following are relevant cases
involving Worker's Compensation claims based on exposure to ETS. As noted
below, ETS-related Worker's Compensation claims have been both approved and
rejected.
MICHIGAN CASES:
David Heffner v. State of Michigan, Dept. of Mental
Health
Docket No. 1997 ACO #614
1997 MIWCLR (LRP) LEXIS 544; 10 MIWCLR (LRP) 1556
November 14, 1997
Plaintiff, a security guard at a
maximum security psychiatric hospital, alleged that his exposure to ETS at work
aggravated his pre-existing asthmatic condition. Defendant temporarily
reassigned plaintiff to smoke-free areas during the day shift, but subsequently
offered plaintiff the midnight shift which was designated as smoke-free.
Plaintiff refused the midnight shift and was subsequently terminated for
refusing to work the midnight shift. Plaintiff sought benefits for the period
of Feb. 14, 1994 to Oct. 6, 1994, during which time he was terminated; in
October, 1994, he asked to be employed on the midnight shift and was employed.
The Magistrate denied plaintiff the benefits he sought for this period. The
Worker's Compensation Appellate Commission upheld the Magistrate, finding that
defendant's actions in selecting the midnight shift to accommodate plaintiff
were reasonable, noting that defendant's offer of reasonable employment was
based on considerations of whether plaintiff would be exposed to residual
cigarette smoker from time to time during the day shift, contrary to
restrictions the plaintiff's doctor had set for plaintiff's health protection.
The Commission further held that the Magistrate properly found plaintiff
unreasonably refused an offer of reasonable employment, thereby voluntarily
having removed himself from the workforce and thence making himself ineligible
for worker's compensation benefits.
Vinkle v. Emmet County, et al
Docket No. 1996 ACO #362
1996 MIWCLR (LRP) LEXIS 1141; 9 MIWCLR (LRP) 1375
July 31, 1996
Plaintiff, an attendant and
"jack-of-all-trades" at a small county airport, alleged that working
in an environment of dust, airplane fumes, exhaust, chemicals, and ETS caused,
contributed to or aggravated his existing lung condition. The Magistrate denied
benefits, finding plaintiff failed to establish a work relationship for
plaintiff's pulmonary problem. The Magistrate also indicated that, even if the
plaintiff had established a causal relationship between the chronic obstructive
pulmonary disease and his employer, he would have denied benefits due to lack
of timely notice by the plaintiff to the employer that he was experiencing
breathing difficulties which were somehow related to his work. The Worker's
Compensation Appellate Commission upheld the Magistrate's findings on all
points. The Commission noted at length the importance of and purpose for timely
notice to the employer in these cases, stating: "Accordingly, we would
hold that an employee must affirmatively state or otherwise effectively
communicate to the employer that he or she claims to be suffering from an
injury or other physical condition which is work related, unless the injury
arises in circumstances so as to make such facts patently obvious to the
employer." The Commission observed that the notice requirement is more
"easily applied in cases involving easily identifiable single event
injuries" than in cases such as this "where a worker may be suffering
from an ongoing or pre-existing condition." In a situation [such as
Vinkle's], it is difficult for the employer to know that the work situation is
causing the employee injury "unless the statement or incident is such that
it would impart knowledge to others that the worker's underlying or
pre-existing condition is now being affected by his work," and, "in
many cases, this requires an affirmative statement by the employee that the
work is causing the pain or the condition."
Jean Fasang v. Ford Motor Company
Docket No. 1991 WCABO #121
1991 MIWCLR (LRP) LEXIS 836; 4 MIWCLR (LRP) 3099
June 26, 1991
Plaintiff claimed she suffered
disabling orthopedic and lung problems, the latter of which she alleged were
caused by years of working with heavy smokers and, to a lesser extent, in a
polluted atmosphere. Evidence showed that although the employer was aware of
plaintiff's lung problems, supervisors continued to place her in smoky, dusty jobs,
until she voluntarily quit work. The Administrative Law Judge denied benefits,
finding plaintiff failed to prove she suffered from disabling lung or
orthopedic conditions. The Worker's Compensation Appeal Board (WCAB), after
thoroughly reviewing the somewhat conflicting evidence concerning ETS and the
plaintiff's condition, reversed, finding that plaintiff suffered a disabling
occupational lung condition brought on by years of inhaling secondary cigarette
smoke (ETS), and some industrial air pollutants, and also suffered work-related
orthopedic problems. The Board also found that the employer "knew the
plaintiff was on certain restrictions regarding bending, lifting, and unclean
air, and nevertheless assigned her to work stations and tasks which exceeded
those restrictions," including knowing that the "plaintiff indeed was
restricted to working only in those areas with clean air, that [the employer]
knew that there was heavy cigarette smoking in some of the areas to which
plaintiff was assigned, and the [the employer] lacked, or claimed he lacked,
the authority to do anything about it," and that the employer "was
aware of medically-imposed restrictions and more or less ignored them in
assigning and re-assigning plaintiff." The Board noted that it lacked the
authority to make a determination whether the employer should have done
something about the cigarette smoke and other air-borne pollutants, saying that
the Board only had the authority to determine if "these conditions had a
compensable effect on the plaintiff." The Board also stated that "a
claimant need establish causality only by a preponderance of the
evidence," and that "the WCAB may conclude that the party who has the
burden of proof has produced evidence which preponderates when it is persuaded,
viewing all the evidence, circumstances and reasonable inferences, that the
evidence and inferences which support the claim outweigh those which oppose
it." On this basis, the Board concluded the plaintiff had an
"occupational disease" caused by ETS and other air-borne pollutants
and was entitled to benefits, plus interest.
Walter O'Neil v. Chrysler Motors Docket No. 1991 ACO #126
1991 MIWCLR (LRP) LEXIS 549; 4 MIWCLR (LRP) 1104
June 14, 1991
Plaintiff developed a debilitating
obsession with ridding his workplace of cigarette smoke and chose to resign
when management refused to transfer him to a completely smoke-free work
environment, causing further depression. The Magistrate awarded plaintiff a
closed period of benefits for psychiatric disability. A split Worker's
Compensation Appellate Commission reversed the award of benefits, finding
plaintiff's mental problems were not compensable. The dissent would find
plaintiff was disabled by a work-related psychiatric condition and would affirm
the award of benefits. The majority of the Board found that the plaintiff, when
placed in a work environment which is not smoke-free "becomes so
overwrought that he must be considered impaired in his ability to
function;" but, the Board said, "we cannot agree with plaintiff that
work brought him to this turn, this intolerance amounting to disability....It is
[plaintiff's] position that his years at defendant sensitized him, thus
contributing significantly to his intolerance of smoke. There is, though, no
evidence at all of this sensitization on a physiological basis.... Finally, the
evidence cannot support a finding, and the magistrate did not make it, that
work engendered plaintiff's dedication to a smoke-free environment for himself,
a dedication so profound that it can manifest itself in bizarre inappropriate
behavior." The Board also said "Defendant's point is well taken in
this quarter that plaintiff never had a wage-earning capacity that included
working around smokers." The Board stated: "We are of course
satisfied ... that plaintiff cannot work at defendant in a smoky environment, but
we find no support in Dr. Feldstein's testimony for the finding that this
inability was ever related to having worked at defendant." [SFELP comment:
It appears that this case could have gone the other way, since there does seem
to have been evidence that O'Neil's condition began in the work setting, but it
is possible that his "bizarre" behavior had some impact on the
majority decision. This demonstrates how the specific facts of a case can
affect the outcome.]
NON-MICHIGAN CASES:
The following Worker's Compensation
cases from jurisdictions outside Michigan are listed for reference purposes,
but do not include brief synopses. The cases are listed in alphabetical order
of the state in which the case was decided.
Deborah Poston v. Rufus R. Smith, Jr.
666 So. 2nd 833; 1995 Ala. Civ. App. LEXIS 382
Court of Civil Appeals of Alabama
July 21, 1995
Eastern Airlines and Gab Business Services v. Patricia
Crittenden & Travelers Insurance
596 So. 2d 112; 1992 Fla. App. LEXIS 2514
Court of Appeal of Florida, First District
March 11, 1992?
Ate Fixture Fab and St. Paul Fire & Marine Insurance
Co. v. Paul R. Wagner
559 So. 2d 635; 1990 Fla. App. LEXIS 1364
Court of Appeal of Florida, First District
March 1, 1990
James C. Palmer v. Del Webb's High Sierra
108 Nev. 673; 838 P. 2d 435; 1992 Nev. LEXIS 137
Supreme Court of Nevada
September 1, 1992
Herbert Schober v. Mountain Bell Telephone
96 N.M. 376; 630 P. 2nd 1231; 1980 N.M. App. LEXIS 928
Court of Appeals of New Mexico
August 7, 1980
In the Matter of Veronica Johannesen v. New York City
Department of Housing Preservation & Development
84 N.Y. 2d 129; 638 N.E. 2d 981; 1994 N.Y. LEXIS 1347
Court of Appeals of New York
June 21, 1994
In the Matter of Judith Mack v. County of Rockland
71 N.Y. 2d 1008; 525 N.E. 2d 744; 1988 N.Y. LEXIS 714
Court of Appeals of New York
May 26, 1988
Kellogg v. Mayfield et al
72 Ohio App. 3d 490; 595 N.E. 2d 465; 1991 Ohio App. LEXIS 588
Court of Appeals of Ohio, Twelfth Appellate District
February 11, 1991
CONCLUSION:
While each Worker's Compensation
case stands or falls on its own merits, existing cases demonstrate that the
threshold issues which an employee must address are the following: first,
providing medical evidence which demonstrates a clear causal connection between
the injury/affliction and ETS in the workplace; and second, showing that the
employer was notified that the ETS in the workplace was causing health problems
for the worker, so that the employer had an opportunity to make a reasonable
accommodation. If these facts can be demonstrated, then the key issue will be
whether the employer provided a reasonable accommodation for the worker, and
this will turn on the specific facts of the case. It appears quite clear that,
if the employee has an injury caused by ETS in the workplace, has clearly
notified the employer of the harm being caused by the ETS, and the employer has
taken no reasonable action or no action at all, the Worker's Compensation claim
is likely to succeed.
___________________________
Prepared by SFELP, June 6, 2000.