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Services of Mead Data Central, Inc. LEVEL 1- 45 OF 55 STORIES Capyright (c) 1987 The Bureau of National Affairs, Inc. Government Employee Relations Report January 12, 1987 Vol. 25, No. 1196; Pg. 46 PAGE 159 LENGTH: 483 words SECTION: STATE & LOCAL CASE FILE: Safety and'Health. TITLE: NONSMOKERS MAY SUE EMPLOYERS, APPEALS COURT PRECEDENT RULES. TEXT: The Washington State Court of Appeals rules in favor of a woman who sued her public employer for negligence when she developed pulmonary disease af ter being exposed to the smoke of coworkers. Saying the plaintiff's case is not preempted by the state Industrial Insurance Act, the court holds that Helen McCarthy, irr her appeal of an order of the state superior court, had a claim upon which relief can:be granted. This 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 organization that assis s corpora tions in resolving problemsd by smoking in the workplace. McVicker said previous cases involving sidestream smoke in the workplace have been civil suits in which the best settlement for a plaintiff was for the employer to create a smoke-free workplace. McCarthy was employed by the state Department of Social and Health Services (DSHS)' from February 1970 to December 1980 i'n 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 a t DSHS that she was concerned about health effects of the smoke. Obstructive Lung Di'sease "Notwithstanding her complaints and the department's awareness of her 'pulmonary problems,' the department negligently failed to provide McCarthy with a.4a,fe and healthful place of employment and an office environment reasonably free of tobacco smoke," the court says. 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 her disease was not the result of an industrial injury. Nor did it constitute an occupational diseas e under the state Industrial Insurance Act, the board said. Directly Sue Employers However, the appeals court rules that M¢Carthy had a common law action for negligence. "If we were to hol6otherwise, McCarthy would have effectively ® ® ® ~~~®~  ®~~1~ ''~1®~  `il~~ i:

Services of Mead Data Central, Ihc. PAGE 160, (1c) BNA, Inc., Government Employee Relations Report, January 12, 1987 fallen into a 'crack' between the state industrial insurance system and the state's tort system," it says. in oa sue their emnloyer for damaoes said the Smoki Pa 11 a statement issued after the ruling. "This case dramaticallv increases the potential liabilit fail to protect the health and safetv of their employees," accordin Robert Rosner, executive director of the i'nstitute. (McCarthy v. State of Washington Department of Social and;Hpalth Services; Wash CtApp No. 7667-5-11, Dec. 8', 1986.) Kx~ LEXIS' NEXIS0 LEXIS 0 NEJ3S°