Second-hand smoke case may spark more claims

POSTED AT 8:21 PM EDT    Thursday, October 10

By VIRGINIA GALT and WALLACE IMMEN
From Friday's Globe and Mail

Workers' compensation boards can expect more claims for diseases linked to second-hand smoke following this week's high-profile case involving a former waitress — a non-smoker — with terminal lung cancer, says a lawyer with the Canadian Cancer Society.

Other non-smokers who have developed lung cancer, emphysema, heart disease and asthma will be encouraged by Tuesday's award by Ontario's Workplace Safety and Insurance Board, said lawyer Rob Cunningham, a senior policy analyst with the society.

The decision will also intensify pressure on provincial governments to ban smoking in all workplaces, including restaurants and bars, Mr. Cunningham said.

Current non-smoking laws are inconsistent, varying from province to province and municipality to municipality, he said. "There are still a number of places where office workers don't have any protection at all."

In the absence of protective legislation, smoke-filled workplaces have become a contentious bargaining issue, particularly at Casino Windsor, said Cathy Walker, national health and safety director with the Canadian Auto Workers.

"People go home from work and they just reek. Their hair reeks, their clothes reek — it's disgusting," Ms. Walker said. The casino has designated some areas as non-smoking and has told employees they do not have to work in areas where customers are smoking.

But the reality is that most of the work is carried out in the smoking sections, and employees feel they have no choice but to work in those conditions, Ms. Walker said. The union wants a smoking ban in all areas where CAW members are required to work.

This week's WSIB case involved 57-year-old Heather Crowe, who had worked for 40 years as a waitress. She claimed, and the WSIB agreed, that her terminal lung cancer was an occupational disease linked to long-term exposure to second-hand smoke. A non-smoker, Ms. Crowe has worked in restaurants across the country, the past 15 years in an Ottawa restaurant.

The federal government plans to launch a national advertising campaign on Monday warning of the dangers posed by second-hand smoke in the workplace. Ms. Crowe is featured in the campaign, talking about working in a cloud of blue smoke throughout her career.

WSIB spokesman Perry Jensen said Thursday that the board has received five claims relating to second-hand smoke since 1986, and has allowed three of those claims. Claims are decided on a case-by-case basis, Mr. Jensen said. Adjudicators take medical evidence, workplace history and the claimant's personal history into account, he said, and a clear link must be established before an occupational disease claim is allowed.

British Columbia's Workers Compensation Board allowed a claim earlier this year from a woman who filed for disability because she developed breast cancer working in a smoky workplace. The board agreed that smoke was "a contributing factor," spokeswoman Donna Freeman said.

"We wouldn't have seen these claims in the past because the provincial regulations on environmental tobacco smoke only came into effect in May," Ms. Freeman said.

These recent decisions are more likely to trigger a trickle of new claims than a flood, Ms. Walker said, because — with many occupational disease claims — it is not easy to prove a direct link between the work environment and the disease.

However, Ms. Walker said she knows of a few other non-smoking CAW members who might have grounds to file claims stemming from exposure to second-hand smoke at work. One is a possible case of lung cancer and the other is asthma.

Louis Brisson, a vice-president of the Canadian Lung Association, said the Quebec government has made all work environments smoke-free — except restaurants and bars, where "the smoke is often so thick you can cut it with a knife."

The pressure for greater worker protection has affected the Canadian Restaurant and Foodservices Association, which is lobbying for uniform laws across the country based on a model adopted by the B.C. government, said Jill Holroyd, vice-president of research and communications.

The B.C. law applies strict ventilation standards to businesses that permit smoking and requires employers to allow employees the right to refuse work in the smoking areas. "If they choose to work in the smoking area, it must not exceed 20 per cent of their workday," said Ms. Holroyd, whose organization believes this is more acceptable to businesses and customers than an outright smoking ban.

With a file from reporter Brian Laghi in Ottawa