Sharing an office with a chain smoker caused a Middletown physical education teacher's tonsillar cancer, entitling him to disability benefits, a worker's compensation judge has ruled.
The ruling by Judge James Boyle appears to be the first in New Jersey to extend compensation for second-hand-smoke exposure beyond lung cancer. Boyle, citing recent litigation involving flight attendants and custody and visitation issues concerning a child's exposure to a parent's second-hand smoke, said the extension was justified.
"I am satisfied ... that the next logical step in the evolution of the known effects of second hand smoke has been reached," Boyle wrote. "That is, I am satisfied that [the petitioner] has proven even beyond the preponderance of credible evidence that [his] tonsillar cancer was caused by his exposure to second-hand smoke during the twenty-six years that he shared an office with a co-employee who was a chain-smoker."
Boyle awarded Donald Magaw $45,000 in temporary disability benefits and also ordered the Middletown Board of Education to pay outstanding medical bills, provide future treatment and restore sick time that Magaw had used up.
Magaw's attorney Michael McGann, a partner with Oakhurst's Amdur, Boyle, Maggs & McGann, says the ruling expands the already accepted fact that cigarettes are dangerous to non-smokers in the workplace. "What this decision illustrates is that the full danger of cigarettes has barely been scratched," McGann says.
Middletown's attorney, John Geaney a partner with Mount Laurel's Capehart, Scatchard, & Geaney, says he plans to appeal the decision.
The case began in October 1994 when Magaw was diagnosed with cancer of the tonsils. Magaw's oncologist, Dr. Carol Kornmehl, told Magaw that tonsillar cancer was caused by exposure to tobacco or alcohol. But, Magaw, 51, of Neptune City was a non- smoker and a light drinker.
Magaw said his only exposure to cigarettes was from work. Magaw is a physical education teacher at Thorne Middle School in Port Monmouth since 1968. From the time he was hired until October 1994. he shared an office with another teacher, whose name was removed from record, who was a chain smoker. The other teacher, smoked a pack of cigarettes each day. Other teachers testified they could not remember a time when they "didn't not see [the teacher] without a cigarette."
The two men shared a small office with two other gym teachers. The small office did not have any windows that could be opened and its vents were broken. McGann argued that the Middletown School Board left Magaw to be asphyxiated by cigarettes for 26 years.
In November 1994, Magaw had surgery that removed his tonsils, jaw palette, and teeth. He then had surgery that grafted bones and skin from his leg to reconstruct his jaw. Magaw underwent radiation, physical and speech therapy to recover from the surgeries. After the procedures, Magaw had to use artificial saliva in order to digest his food.
Magaw sued for temporary disability and medical benefits in early 1995. Over the next three years, seven hearings were held where witnesses and experts testified before Boyle.
McGann says that the case turned on the testimony of Magaw's oncologist, Dr. Carol Kornmehl. Kornmehl testified that the secondary smoke was "the most likely contributing factor for Mr. Magaw's malignancy." She said Magaw's only carcinogen risk was his exposure to second-hand smoke.
Kornmehl's argument was unique because no studies could be cited that authoritatively stated that second-hand smoke caused a head or neck cancer. Middletown's expert, Dr. Frederick Cohen, also an oncologist, testified that "data did not exist to be able to make a case" that second-hand smoke could cause a head and neck malignancy.
McGann said it was left to Boyle to decide whether to believe speculations about data or testimony from a treating physician. "Dr. Kornmehl dealt with Mr. Magaw one on one. She was aware of his history," McGann said. "This is a unique set of circumstances where there really isn't any other way he could have contracted the cancer."
Citing Shimp v. N.J. Bell Telephone Co., 145 N.J. Super. 516, 526 (Ch. Div. 1976), Boyle said that employer are required to provide safe working conditions. In Shimp, the court concluded that cigarettes contaminate and pollute the air and create health hazards including lung cancer.
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