Widower gets death benefits in secondhand smoke case.

The husband of a nurse who worked in the smoke-filled psychiatric ward of a veterans' hospital recently won a workers' compensation award stemming fro his wife's fatal lung cancer. It is believed to be the first time a workers' comp claimant has received benefits for a death linked to secondhand smoke exposure.

In December, the U.S. Department of Labor ordered the Department of Veterans Affairs (VA) to pay benefits to Philip Wiley, whose wife, Mildred, died in 1991 after working for 18 years in the VA hospital in Marion, Indiana. (In re Wiley, No. A9-365951 (U.S. Dep't of Labor, Office of Workers' Compensation Programs Dec. 8, 1995).

The trend in recent years has been to grant [secondhand smoke] claims," said Richard Daynard, chair of the Tobacco Products Liability Project at Northeastern University in Boston. Although Wiley is the first claimant to receive death benefits, previous claimants have won benefits for illnesses caused or aggravated by secondhand smoke in the workplace, Daynard said.

Wiley's claim had been denied twice but was reconsidered and granted after he presented new medical evidence linking his wife's cancer to her exposure to secondhand smoke at work. The Labor Department claims examiner, Cynthia Bujakowski, said the new evidence "is sufficient to establish that the claimed fatal condition was causally related to the deceased claimant's work exposure to ETS [environmental tobacco smoke]" at the hospital.

According to the compensation order, Wiley's coworkers had stated that "their work area was in a haze of smoke fog so thick at times it was difficult to see the tops of the patients' heads. Mr. Wiley consistently stated his wife came home reeking of smoke, had to wash her work clothes daily, and hung her coat in a separate closet due to the smoke stench."

Joe Young, an Indianapolis attorney representing Wiley, said the hospital had adopted various policies over the years to reduce smoking in the building. However, indoor smoking was not banned until 1991, the year of Mildred Wiley's death. "It was too little, too late," Young said.

The new evidence that swayed Bujakowski came from David Burns, a professor of medicine at the University of California at San Diego and a well-known authority on lung disease. After reviewing Mildred Wiley's medical records and other documents, Burns concluded that secondhand smoke was the only human carcinogen that she was exposed to at a substantial level. He ruled out other possible causes of her cancer, including radon and asbestos.

Philip Wiley has also filed a products liability suit against the major cigarette manufacturers. (Dunn v. RJR Nabisco Holdings Corp., No. 18D01-9305-CT-06 (Ind., Delaware County Super. Ct. filed May 28, 1993).

Daynard said the workers' comp ruling bodes well for the civil case. The very same evidence is likely to lead to a finding of causation and hence liability," he said.