N.Y. Court of Appeals Rules Workers' Aggravated Asthma From Secondary Smoke Is Accidental Injury.

• Author: Youmans, Sue

ALBANY, N.Y. -- The New York State Court of Appeals has ruled that exposure to excessive amounts of secondhand cigarette smoke in a confined work environment which aggravate a claimant's bronchial asthma condition constitutes an accidental injury compensable under workers' compensation.

The court's 6-0 decision [in which Judge Howard Levine took no part], stated that the claimant had sustained an accidental injury as a result of repeated trauma of exposure to passive cigarette smoke and was entitled to benefits under workers' compensation.

The ruling affirms the decision of the Workers' Compensation Board and the Appellate Division in the suit brought by Veronica Johannesen against her employer, the New York City Department of Housing Preservation and Development and the Workers Compensation Board.

In the suit, Johannesen charged that her working environment at the Department of Housing aggravated her bronchial asthma condition and caused two asthma attacks that forced her to be rushed to the hospital from her workplace. The office was crowded with 50 employees--half of whom smoked, she asserted--and the office ventilation system did not function properly. Because she was not offered an alternative to what she considered a hazardous environment, and her requests for transfer were denied, she blamed her condition on her workplace and requested benefits from workers' compensation.

The Department of Housing argued that routine exposure to tobacco smoke in the work environment did not constitute an "accidental injury" in the 1980s, when Johannesen's condition worsened, though it does now. The department also charged that the absence of a "catastrophic or extraordinary" event as the cause of Johannesen's condition disqualifies her...