Tag Archives: Smoking

The Cancer Presumption in Workers’ Compensation

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.

What is a legal presumption? 

Can a legal presumption be rebutted by sufficient contrary evidence?

Wisconsin workers’ compensation law contains many presumptions. For example, for firefighters, it is presumed that if a firefighter has cancer, the cancer is employment-related. The Statute applies to any State, County, or Municipal firefighter who has worked for ten years with at least two-thirds of the working hours as a firefighter who has cancer of the skin, breast, central nervous system, or lymphatic, digestive, hematological, urinary, skeletal, oral, or reproductive systems. For that firefighter whose disability or death is caused by cancer, the cancer diagnosis is presumptive evidence that the cancer was caused by employment. However, no presumption exists for firefighters who smoke cigarettes or use tobacco products for claims after January 2001. (Wis. Stat. §891.455 Presumption of Employment Connected Disease: Cancer)

Other presumptions in Wisconsin law include a presumption that a youthful worker (under age 27) is presumed to be able to earn the maximum wage rate by the time he reaches age 27, for purposes of Permanent Partial Disability, disfigurement, or death. For example, a McDonalds burger-flipper earning $10 per hour who has a severe burn is presumed (instead of the $200 or $300 he actually earns per week) to be earning $1,400 per week under the Youthful Age Presumption. Evidence of the worker’s likely inability to earn the maximum wage (due to cognitive or academic deficiency or similar lower earning work history) can be used to rebut the presumption and therefore limit the maximum Permanent Partial Disability or disfigurement award.

In a recent cancer case, the Pennsylvania workers’ compensation board found a firefighter cannot receive workers’ compensation benefits for prostate cancer because he failed to show his cancer was work-related despite a statutory presumption for firefighters. The firefighter began working for the City of Philadelphia in the 1970s and retired in 2006 after a diagnosis of prostate cancer. He filed a workers’ compensation claim saying his cancer stemmed from carcinogens he was exposed to while working as a firefighter, such as diesel fumes from fire trucks, second hand tobacco smoke from co-workers, and smoke from burning debris he encountered while fighting fires. Note he also acknowledged he smoked an average of a half pack of cigarettes daily since the 1960s. His doctor’s testimony that his carcinogen exposure caused the prostate cancer was rebutted by the City’s physician indicating that prostate cancer is typically more of a “disease of aging than it is of external influence.” The Judge, in denying the claim, noted “Any elevated risks for prostate cancer among firefighters might also be explained by other factors, such as detection bias, ethnicity and geography.”

The cancer presumption in Wisconsin (for non-smoking firefighters) would be more difficult to rebut, but factors such as family history may prove the “other evidence” necessary to rebut the presumption.

Health Care Testing: A New Frontier for Worker’s Comp

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.

As a worker’s compensation lawyer, I see many news stories through the prism of how the news event or trend will affect injured workers in the worker’s compensation system. A federal judge in Minnesota has ruled that Honeywell, Inc. can begin penalizing workers who refuse to take medical or biometric tests. 

The EEOC had claimed Honeywell’s policy violated the Americans With Disabilities Act and the Genetic Information Nondiscrimination Act. They filed a lawsuit in Minneapolis on behalf of two Minnesota employees of Honeywell.

The tests Honeywell required their employees to take measured blood pressure, cholesterol, and glucose, as well as signs that employee had been smoking. Employees who declined to take the test could be fined up to $4,000 in surcharges and increased health costs. Honeywell said the program is designed to “encourage employees to live healthier lifestyles and to lower health care costs.” Honeywell says the testing promotes employee well-being. Management also indicated “We don’t believe it’s fair to the employees who do work to lead healthier lifestyles to subsidize the healthcare premiums for those who do not.”

The ramifications of such testing for worker’s compensation immediately come to mind. In any kind of an occupational exposure claim, such tests could be used to help deny worker’s compensation claims for employees who smoke, are overweight, have diabetic condition, claims involving occupational back conditions, carpal tunnel claims, and any kind of respiratory complaints. Another “slippery slope” may be the use of these kinds of testing to actually screen prospective employees, since the employer rationale would be that hiring folks with those pre-existing conditions would cost the employer more money.

Five US Airports that Put Employees and Passengers At Risk For Environmental Tobacco Smoke

Secondhand Smoke Is Deadly

Today’s post comes from guest author Jon Gelman, from Jon Gelman, LLC – Attorney at Law.

Air pollution from secondhand smoke five times higher outside smoking rooms and other designated smoking areas than in smoke-free airports

 

Average air pollution levels from secondhand smoke directly outside designated smoking areas in airports are five times higher than levels in smoke-free airports, according to a study by the Centers for Disease Control and Prevention. The study conducted in five large hub U.S. airports also showed that air pollution levels inside designated smoking areas were 23 times higher than levels in smoke-free airports. In the study, designated smoking areas in airports included restaurants, bars, and ventilated smoking rooms.

Five of the 29 largest airports in the United States allow smoking in designated areas that are accessible to the public. The airports that allow smoking include Hartsfield-Jackson Atlanta International Airport, Washington Dulles International Airport, McCarran International Airport in Las Vegas, Denver International Airport, and Salt Lake City International Airport. More than 110 million passenger boardings—about 15 percent of all U.S. air travel—occurred at these five airports last year.

“The findings in today’s report further confirm that ventilated smoking rooms and designated smoking areas are not effective,” said Tim McAfee, M.D., M.P.H., director of CDC’s Office on Smoking and Health. “Prohibiting smoking in all indoor areas is the only effective way to fully eliminate exposure to secondhand smoke.”

2006 Surgeon General’s Report concluded that there is no risk-free level of exposure to secondhand smoke. Although smoking was banned on all U.S. domestic and international commercial airline flights through a series of federal laws adopted from 1987 to 2000, no federal policy requires airports to be smoke-free.

“Instead of going entirely smoke-free, five airports continue to allow smoking in restaurants, bars or ventilated smoking rooms. However, research shows that separating smokers from nonsmokers, cleaning the air and ventilating buildings cannot fully eliminate secondhand smoke exposure,” said Brian King, Ph.D., an epidemiologist with CDC’s Office on Smoking and Health and co-author of the report. “People who spend time in, pass by, clean, or work near these rooms are at risk of exposure to secondhand smoke.”

Secondhand smoke causes heart disease and lung cancer in nonsmoking adults and is a known cause of sudden infant death syndrome or SIDS, respiratory problems, ear infections, and asthma attacks in infants and children. Even brief exposure to secondhand smoke can trigger acute cardiac events such as heart attack. Cigarette use kills an estimated 443,000 Americans each year, including 46,000 heart disease deaths and 3,400 lung cancer deaths among nonsmokers from exposure to secondhand smoke.

For an online version of this MMWR report, visit http://www.cdc.gov/mmwr.  For quitting assistance, call 1-800-QUIT-NOW (1-800-784-8669) or visit www.smokefree.govExternal Web Site Icon.  Also, visit www.BeTobaccoFree.govExternal Web Site Icon for information on quitting and preventing children from using tobacco. For real stories of people who have quit successfully, visit http://www.cdc.gov/tips. For state-specific tobacco-related data, visit CDC’s State Tobacco Activities Tracking and Evaluation System at http://www.cdc.gov/tobacco/statesystem.

Read More About “Secondhand” Environmental Smoke

Apr 23, 2011
“Secondhand smoke (SHS) exposure causes lung cancer and cardiovascular and respiratory diseases in nonsmoking adults and children, resulting in an estimated 46,000 heart disease deaths and 3,400 lung cancer deaths …
Feb 20, 2008
An Atlantic City NJ casino card dealer employed at the Claridge Hotel who was exposed to second hand tobacco smoke was awarded workers’ compensation benefits. NJ Judge Cosmo Giovinazzi award $150,00 for lost …
Nov 14, 2012
“Secondhand smoke (SHS) exposure causes lung cancer and cardiovascular and respiratory diseases in nonsmoking adults and children, resulting in an estimated 46,000 heart disease deaths and 3,400 lung cancer deaths .
Oct 06, 2011
Lubick (2011) discussed the global health burden of secondhand smoke, and Burton (2011)emphasized a new and alarming consequence of smoking in indoor environments—“thirdhand smoke”—a term first coined in 2006 …