Magaw v. Middletown Board of Education, New Jersey Department of Labor, Division of Workers’ Compensation

A physical education teacher’s tonsillar cancer was caused by secondhand smoke, according to a worker’s compensation judge (Boyle, J.).  On July 23, 1998, the judge awarded Magaw $45,000 in temporary disability benefits and also ordered the Middeletown Board of Education to pay outstanding medical bills, provide future treatment and restore sick time that he had used up.  The judge ruled that “I am satisfied that [the petitioner] has proven even beyond the preponderance of credible evidence that [his] tonsillar cancer was caused by exposure to second-hand smoke during the twenty-six years that he shared an office with a co-employee who was a chain-smoker.”  See Ackermann, M., “Second-Hand-Smoke Injury Yields Worker’s Comp Award,” New Jersey Law Journal, August 10, 1998; and “Second-Hand SmokeAwardLeavesSchool District Fuming,” Your School and the Law, October 2, 1998.

On July 2, 1999, a state appeals panel, at 323 N.J. Super. 1, 731 A.2d 1196, 14.7 TPLR 2.424, 1999 N.J. Super LEXIS 253 (A-1384-98T3F, Superior Ct. of N.J., Appellate Div.), upheld Magaw’s monetary award but ruled that he would have to go back to the school board to seek reimbursement for the sick leave time he used up.  See Tabachnik, S., “Teacher Who Sat by Smoker Wins Suit,” Asbury Park Press (Neptune, NJ), July 3, 1999, A1.  On November 5, 1999, the New Jersey Supreme Court, at 744 A. 2d 1208, 162 N.J. 477, 1999 N.J. LEXIS 1522, refused to hear the school district’s second appeal, thus letting the lower court ruling stand. Magaw was awarded about $53,000 for medical costs and $20,000 for legal costs.  See Ginsberg, T., “A Big Victory for Nonsmoker Made Ill by Coworker’s Cigarettes,” Philadelphia Inquirer, November 13, 1999.

, Claim Petition No. 95-005466 (1998).