2ND-HAND SMOKE CLAIMS A PRICE
By Robert R. Bliss, Staff Reporter Worcester Telegram
Phyllis Bena of Auburn had urged her employer, the Massachusetts Turnpike Authority, to ban smoking in her workplace. The authority did not, and now it is paying the price. According to a physician who testified on her behalf, Bena is the first Massachusetts person to win a workers’ compensation claim based on exposure to second-hand cigarette smoke.
Bena, 62, also has paid a price. She has chronic obstruction pulmonary disease. Her lungs are extremely sensitive. A medium-length conversation, or simply combing her hair, leaves her short of breath. She is weak.
Getting out of bed in the morning, clearing her lungs and starting the day may take up to two hours. Catching a cold means Bena must take medications to prevent the onset of pneumonia. She carries an inhaler and a variety of respiratory drugs. She carefully measures a climb up a flight of stairs to make sure it won’t leave her lungs with the feeling that someone is standing on her chest.
Department of Industrial Accidents Administrative Judge Diane L. Solomon last October ruled her totally disabled due to "heavy passive smoke inhalation over a number of years" which aggravated her disease. Bena worked for the turnpike authority from 1974 to 1988. She was a pack-a-day smoker herself for much of 29 years. She quit smoking in 1981 shortly after receiving a promotion and moving to a new office. She did not suffer shortness of breath when she stopped smoking.
Bena’s history as a smoker actually helped her to win the workers’ compensation case.
According to Dr. Joseph R. DiFranza, an associate professor of family medicine at the University of Massachusetts Medical School who was an expert witness in the case, Bena is unique in that she suffered lung damage due to her own smoking to have passive smoke disable her.
DiFranza explained that a person with healthy lungs exposed to second-hand cigarette smoke might develop heart disease or lung cancer, but would not develop Bena’s ailment to the extent that it would cause a work-related disability.
However, someone whose lungs were already damaged could become disabled from smoke exposure, as happened to Bena, DiFranza said.
The case marks the first time a Massachusetts court has recognized that passive smoking is a cause of injury to nonsmokers, accordin g to DiFranza.
"That is crucial. Courts are recognizing that passive smoking causes damage. The federal Environmental Protection Agency has recognized it as a cause of cancer, and now there are lawsuits filed to force the federal Occupational Safety and Health Administration to protect workers from passive smoke exposure on the job," DiFranza said.
"The Phyllis Bena case says that even if OSHA does not act, employers had better, because in the absence of federal regulations they could be held responsible for injuries suffered by their employees as a result of exposure to passive smoke," DiFranza said.
Bena’s lawyer, J. Channing Migner, hopes the impact "is one of prevention rather than creating a new cause of action for workers…Until this case no one saw breathing smoke as a personal injury.
"I hope employers will take more seriously the threat of potential injury to their employees and will make the workplace safe by making it free of smoke," Migner said.
In 1980, Bena moved from turnpike authority offices in the Prudential Building in Boston to a 16 x 20 engineering office off the turnpike in Weston. She was an engineering assistant in charge of the turnpike’s 15,000 original Mylar maps. She had three co-workers who smoked continuously.
In May 1986 she transferred to a 12 x 16 construction trailer off Bancroft Street in Auburn. The smoke inside was thick enough to color the air blue.
"It was extremely offensive," Bena said.
As many as 30 people a day, engineers, inspectors, construction workers, came in and out of the trailer. "If it was cold, they might come in to have a cigarette and get warm. If it was warm, they might come in to get a cigarette to cool off. So it was constantly filled with smoke," she said.
"That’s when I began to feel real trouble, after I had been there seven months; wheezing, experiencing shortness of breath. I realized weekends I was not wheezing or coughing, then I would go back on Monday and it would get progressively worse," she said.
In May 1987 she moved into a new engineering building in Auburn. That September, tests at the University of Massachusetts Hospital showed lung damage.
"JUST LET ME BREATH"
"I tried to have them (the Authority) stop the smoking. I asked for no smoking signs, and it was denied. Everyone smoked. There was a room and my desk was in there, along with a conference table so there were pre-construction meetings there, people hanging out."
"I was told not to expect any different treatment. I did not want to be treated differently. The issue was, just let me breathe. The smoke was terrible," she said.
UMass doctors advised her to leave her job in December 1987, but she kept working until May 1988, after which she never returned to work. She left a rehabilitation program at UMass convinced her lung problems were not related to allergies or asthma, but to smoke, and filed a workers’ comp claim in the summer of 1988.
The authority claimed it had taken steps to rid her office of smoke, but Bena said the efforts were laughable. Her immediate supervisor one day typed a no smoking sign on a piece of scratch paper and taped it to the wall.
"I don’t know why they were so adamant they were going to smoke, whether I liked it or not," she said.
The case has not changed the turnpike authority policy on smoking, said spokeswoman Linda Dailey. The smoking policy is the same. "We do have restricted areas in the workplace," Dailey said.
"I had heard things hadn’t changed much," Bena said of Dailey’s remark.
The time to appeal the case has passed, but Dailey said turnpike authority lawyers are still looking at it.
Today, Bena receives $301 weekly in workers’ compensation. When she last worked, her average weekly wage was $452.00. No matter how carefully she takes care of herself, "I will never get back what I had," she said.
"I try to maintain what is there so it is functional as much as it can be. I need a clean environment and must be careful of what I do or where I go. I don’t’ have anything to do with anybody who smokes. And of course I won’t go into public places where there is smoking," she said.
DiFranza said that according to a medical journal called "Circulation," about 53,000 non-smokers die from exposure to second-hand smoke every year.
Most of those deaths are due to heart disease. By contrast, the number of deaths due to auto accidents is about 45,000, of which half of those are due to drunken driving, he said.
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