Johannesen v. New York City Dept. of Housing Preservation and Development

• Citation: 615 N.Y.S.2d 336,638 N.E.2d 981,84 N.Y.2d 129
• Parties: , 638 N.E.2d 981, 63 USLW 2029, 16 O.S.H. Cas. (BNA) 1920 In the Matter of Veronica JOHANNESEN, Respondent, v. NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, Appellant. Workers' Compensation Board, Respondent.
• Decision Date: 21 June 1994
• Court: New York Court of Appeals

Page 336

615 N.Y.S.2d 336

84 N.Y.2d 129, 638 N.E.2d 981, 63 USLW 2029,

16 O.S.H. Cas. (BNA) 1920

In the Matter of Veronica JOHANNESEN, Respondent, v. NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, Appellant Workers' Compensation Board, Respondent.

Court of Appeals of New York.

June 21, 1994.

Paul A. Crotty, Corp. Counsel of New York City (Barry P. Schwartz and Leonard Koerner, of counsel), for appellant.

G. Oliver Koppell, Atty. Gen., New York City (Howard B. Friedland, Jerry Boone, Peter H. Schiff, Jane Lauer Barker and Theresa E. Wolinski, of counsel), for Workers' Compensation Bd., respondent.

Stephen M. Gielowski and D. Jeffrey Buckley, Buffalo, for New York State Ass'n of Counties and others, amici curiae.

Pasternack Popish & Reiff, P.C., Brooklyn (Victor Pasternack and Dominick J. Tuminaro, of counsel), for The Amalgamated Clothing and Textile Workers Union and others, amici curiae.

Colleran, O'Hara & Mills, Garden City, (Edward J. Groarke, of counsel), for New York State AFL-CIO, amicus curiae.

OPINION OF THE COURT

BELLACOSA, Judge.

The determinative issue on this municipal, self-insurer, employer's appeal is whether claimant's bronchial asthma, aggravated by exposure to excessive amounts of secondhand cigarette smoke in a confined work environment, constitutes an accidental injury compensable under the Workers' Compensation Law. The Workers' Compensation Board found an accidental injury and the Appellate Division affirmed, 154 A.D.2d 753, 546 N.Y.S.2d 40. Because the decision accords with established precedents and is supported by substantial evidence, we affirm.

I.

The facts are essentially uncontroverted. Claimant, Veronica Johannesen, was an office assistant for the City of New York when, in 1981, she was assigned to work at the City's Department of Housing Preservation and Development. The office in which claimant worked consisted of one large room for approximately 50 employees, at least half of whom smoked cigarettes. The room was crammed with desks and file cabinets, so that the employees worked in close proximity to one another. The windows were kept closed because of smoke from the kitchen of a restaurant located below the office. Also, the office ventilation system did not function properly. A coemployee, who worked on the same office floor as claimant, confirmed claimant's factual allegations.

By 1983, claimant began wheezing and coughing at work. Her breathing worsened and, in January 1985, she was diagnosed as suffering from bronchial asthma aggravated by exposure to the tobacco smoke and dust in the workplace. Her treating physician recommended that she work only in a smoke-free environment. Claimant's transfer requests, however, were repeatedly denied.

In 1985, claimant sought workers' compensation benefits based on her asthmatic episodes of wheezing, coughing and spitting. Prior to the administrative hearing, in January 1986, claimant experienced two sudden and traumatic asthmatic attacks at work. On both occasions she was rushed to a hospital for emergency medical treatment and assistance for her breathing difficulty.

At the hearing, medical reports documented that claimant was first treated in 1983 for breathing difficulties and that her exposure to secondhand cigarette smoke at her office aggravated her condition. The Workers' Compensation Law Judge found that claimant suffered from a compensable occupational disease and made an award. On appeal, the Workers' Compensation Board rescinded the Administrative Law Judge's rationale, found instead that claimant had sustained an accidental injury as a result of repeated trauma of exposure to passive cigarette smoke, and restored the case to the Workers' Compensation Trial Calendar. The Appellate Division affirmed, stating that the Board's determination of accidental injury was supported by the record (154 A.D.2d 753, 546 N.Y.S.2d 40). We granted leave to appeal from the final decision of the Workers' Compensation Board and now affirm that decision and the order of the Appellate Division brought up for review.

II.

The Workers' Compensation Law was enacted for socioeconomic remediation purposes "as a means of protecting work[ers] and their dependents from want in case of injury" on the job (Matter of Post v. Burger & Gohlke, 216 N.Y. 544, 553, 111 N.E. 351; see, Surace v. Danna, 248 N.Y. 18, 20-21, 161 N.E. 315). An employee is entitled to receive compensation on a "no-fault" basis for all injuries "arising out of and in the course of the employment" (Workers' Compensation Law § 10[1]; see also, § 2[7]; § 21; Matter of Wood v. Laidlaw Tr., 77 N.Y.2d 79, 82, 564 N.Y.S.2d 704, 565 N.E.2d 1255). Under Workers' Compensation Law § 2(7), "injury" and "personal injury" means only "accidental injuries arising out of and in the course of employment and such disease or infection as may naturally and unavoidably result therefrom". To effectuate the statutory objectives, Workers' Compensation Law § 21(1) creates a presumption that injuries "arising out of and in the course of" employment are compensable under section 10(1) as "accidents" (Matter of Richardson v. Fiedler Roofing, 67 N.Y.2d 246, 251, 502 N.Y.S.2d 125, 493 N.E.2d 228). Moreover, given the remedial nature of the Workers' Compensation Law, the Court has construed the statute and given the Board, as "trier[ ] of the facts", a very wide latitude in determining whether a disabling condition is an accident (Matter of Middleton v. Coxsackie Correctional Facility, 38 N.Y.2d 130, 135, 379 N.Y.S.2d 3, 341 N.E.2d 527; see, Matter of Holcomb v. Daily News, 45 N.Y.2d 602, 607, 412 N.Y.S.2d 118, 384 N.E.2d 665; Matter of Wolfe v. Sibley, Lindsay & Curr Co., 36 N.Y.2d 505, 508, 369 N.Y.S.2d 637, 330 N.E.2d 603). In particular, the Court has noted also that an accidental injury must be gauged by the "common-sense viewpoint of the average [person]" (Matter of Middleton v. Coxsackie Correctional Facility, 38 N.Y.2d 130, 134, 379 N.Y.S.2d 3, 341 N.E.2d 527, supra; Matter of Masse v. Robinson Co., 301 N.Y. 34, 37, 92 N.E.2d 56).

On this appeal, the causal relationship between claimant's inhalation of the secondhand tobacco smoke and the aggravation of her bronchial asthma is not disputed. In addition to claimant's proof, the employer's own medical expert confirmed the existence of claimant's obstructive lung disease and concluded that her work environment aggravated her asthma condition. Thus, the sole focus of this Court's law question inquiry is whether claimant sustained an accidental injury within the meaning of the Workers' Compensation Law.

III.

Appellant Department of Housing Preservation and Development mounts a three-pronged attack against claimant's case qualifying as an "accidental injury". First, citing Matter of Mack v. County of Rockland, 71 N.Y.2d 1008, 530 N.Y.S.2d 98, 525 N.E.2d 744, the appellant employer argues that routine exposure to tobacco smoke in the work environment did not constitute an "accidental injury" in the early 1980s, though it acknowledges that it does today. Second, the Department asserts that the average person would not view claimant's bronchial asthma as an "accidental injury" because the asthma condition is solely an allergic or other type of sensitivity reaction to an everyday environmental condition and did not occur in an unexpected or unusual circumstance. Lastly, appellant asserts that even if the circumstances are deemed an "accident," the evidence is legally insufficient as to the "time-definiteness" component affixed under Matter of Middleton v. Coxsackie Correctional Facility, 38 N.Y.2d 130, 137, 379 N.Y.S.2d 3, 341 N.E.2d 527, supra.

Matter of Mack v. County of Rockland, 71 N.Y.2d 1008, 530 N.Y.S.2d 98, 525 N.E.2d 744, supra does not aid or support appellant's cause. That case is an "occupational disease" case and this one is an "accidental injury" case. A different analysis applies here.

In Mack, the claimant, a psychiatric social worker, suffered an aggravation of a preexisting eye disorder as a result of exposure to cigarette smoking in a poorly ventilated workplace. The Court affirmed an order of the Appellate Division which dismissed the claim that she suffered an "occupational disease" within the meaning of the Workers' Compensation Law (see, Workers' Compensation Law § 3[2]. The Court held that because the claimant's injury was caused solely by the "environmental condition[ ] of her work place, not by any distinctive feature of the occupation of a psychiatric social worker ", the claimant could not maintain a claim based on occupational disease (id., at 1009, 530 N.Y.S.2d 98, 525 N.E.2d 744 [emphasis added]. The focus of an "occupational disease" claim is on the nature of the work (see, Workers' Compensation Law § 2[15], not the nature of the workplace environment. Accordingly, denial of a claim in the occupational disease category is not definitive for an accidental injury in the workplace category (see, Matter of Middleton v. Coxsackie Correctional Facility, 38 N.Y.2d, at 134, 379 N.Y.S.2d 3, 341 N.E.2d 527, supra).

The term of art, accidental injury, lacks a statutory definition and, thus, requires a distinctive analysis and tracking of pertinent precedents. An accidental injury need not result suddenly or from the immediate application of some external force but may accrue gradually over a reasonably definite period of time (see, Matter of Middleton v. Coxsackie Correctional Facility, supra.). There, a correction officer contracted tuberculosis through exposure, over a period of three or four months for two or three hours a day, to an infected, coughing inmate. In holding that the claimant's tuberculosis was an accidental injury, the Court in Middleton relied on Matter of Pessel v. Macy & Co., 40 A.D.2d 746, 336 N.Y.S.2d 814, affd. 33 N.Y.2d 721, 349 N.Y.S.2d 995, 304 N.E.2d 565, where we held that a claimant's exposure to repeated bursts of cold air over a period of three months, which...