Matter of Johannesen v. Department of Housing Preservation and Development

).  The Workers’ Compensation Board awarded benefits to a woman who sustained bronchial asthma as a result of her exposure to tobacco smoke and dust in a crowded office where she worked for New York City’s Department of Housing Preservation and Development.  The Board ruled that she had sustained an occupational injury as a result of the repeated trauma of exposure to cigarette smoke in her office.  The New York Supreme Court’s Appellate Division affirmed the Board’s decision, ruling that it was supported by substantial evidence that the office was severely over-crowded, lacked adequate ventilation, that there were many smokers in the immediate vicinity of Johannesen’s work station and that, within one week, she had suffered two severe asthma attacks which required her to be taken to the local hospital’s emergency room.

On appeal, the decision was affirmed on June 21, 1994 at 615 N.Y.Supp.2d 336, 638 N.E.2d 981, 84 N.Y.2d 129, 9.3 TPLR 2.73.  The court ruled that “substantial evidence supports the Board’s determination that claimant’s disabling and aggravated asthmatic condition, caused by prolonged exposure to secondhand tobacco smoke in her confined employment workplace, constituted an accidental injury within the meaning and intent of the Workers’ Compensation Law.  The award should be upheld.”  See Spencer, G., “Secondhand Smoke Cause of Work Injury; Compensation Award Sustained on Appeal,” New York Law Journal, June 22, 1994, 1; Woolsley, “N.Y. Court Awards Work Comp Benefits for Illness Tied to Second-hand Smoke,” Business Insurance, June 27, 1994, 1; and Sablone, K., “Note: A Spark in the Battle Between Smokers and Nonsmokers: Johanssen v. New York City Dept. of Housing Preservation & Development,” 36 BostonCollege Law Review 1089, September 1995.

154 A.D.2d 753, 546 N.Y.S.2d 40, 5.1 TPLR 2.12 (A.D. 3 Dept. 1989).