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Services of, Mead Data Central, Inc. LEVEL 1- 46 OF 55 STORIES Copyright (c) 1987 The Bureau of National Affairs, Inc. Daily Labor Report JANUARY 8, 1987 THURSDAY DLR No. 5; Pg. A-3 PAGE 161 LENGTH: 478 words SECTION: CURRENT DEVELOPMENTS SECTION. TITLE: APPEALS COURT RULES NONSMOKERS MAY SUE EMPLOYERS FOR NEGLIGENCE. TEXT: SEATTLE (By a BNA Special Correspondent) -- The Washington State Court of Appeals rules i'n favor of a woman who sued her employer for negligence when s he developed pulmonary disease after being exposed to the smoke of co-workers. Saying the plaintiff's case Is not preempted by the state Industrial Insurance Act, the court holds that Helen McCarthy, in her appeal of an order of the state Superior Court, had'a claim upon which relief can be granted. Lhis is the first ruling of its kind in the nation, said Carolyn McVicker. director of marketing for the Smoking Policy Institute in Seattle, a nonprofit prganization which assists corporations in resol-ving problems created by smoking in-t_he-workalace. McVlcker said previous cases involvino sidestream smoke in the work lace have been civil suits in which the best settlement for a plaintiff was for the employer to create a smoke-free workp ace. McCarthy was employed by the state Department of Social an6Health Services (DSHS) from February 1970 to December 1,980 in an office environment in which s he was regularly exposed to "cigarette and other kinds of tobacco smoke," according to McCarthy's complaint. She told her supervisor and an assistant director at DSHS that she was concerned about health effects of the smoke. "Notwithstanding her complaints and the Department''s awareness of her 'pulmonary problems,' the Department negligently failed to provide McCarthy with a safe and healthful place of employment and an office environment reasonably free of tobacco smoke," says the court. She developed obstructive lung disease, which became progressively more serious. After quitting her job in December 1980, McCarthy sought industrial insurance benefits for her condition. The state Department of Labor and'Industries denied her claim, but she appealed the decision to the state Board of Industrial Insurance Appeals. The board upheld the denial of benefits, concluding he r disease was not the result of an industrial injury. Nor did it constitute an occupational disease under the state Industrial Insurance Act, said the board. But the appeals court rules that McCarthy had a common law action for negligence. "If we were to hold otherwise, McCarthy would have effectiVel y fallen into a 'crack' between the state i'ndustrial insurance system and the state's tort system.". "This decision creates the opportunity for employees harmed by sidestream mvrle to directly sue their employer for damages," said the _ Smoking Poli Insti'tute in a statement issued after the ruling. e~ E~IsONE x Is"LEXIs"NEXe s"

Services of, W1'ead Data Central, Ina (c) BNA, Inc., Daily Labor Report, JANUARY 8', 1987 PAGE 162 °_This case dramatically i'ncreases the potential liability of corporations that fail to protect the health and safety of their employees," accordinq to Robert Rosner, executive director of the institu e. (McCarthy v. State of Washington Department of Social and Health Services, Wash CtApp, No. 7667-5-11, Dec. 8, 1986.) w LEXIS *NEX1s OLEX1s `NEXe s O