Safety and OSHA News

What made employee’s lungs worse: Smoking or workplace injury?

An employee suffered a traumatic injury to his lung. However, he smoked two packs a day and had breathing problems before the work injury. Can he get workers’ comp for worsening of his lung condition?

On Aug. 23, 2007, Harold Vandre was working for McMurray Ready Mix Co. as a heavy equipment operator on a road project near Pinedale, WY.

He was walking along the shoulder of the road when he was struck by an asphalt paver. With his right leg caught in the paver, he was dragged about 150 feet.

His right leg had to be amputated just below the pelvis. He also suffered rib fractures that caused his right lung to collapse, and a head injury.

In the course of his treatment, doctors re-inflated his right lung, but it collapsed again. A second re-inflation was successful.

Workers’ comp covered the expenses for his injuries and permanent disability.

However, comp denied coverage for four medical bills in 2012 having to do with a breathing problem.

Vandre had chronic obstructive pulmonary disease (COPD) before he was injured at work. He had also smoked two packs of cigarettes a day and continued to do so through sometime in 2013, despite advice from his doctors that he stop because it made his COPD worse.

Workers’ comp refused to pay for expenses for oxygen, equipment related to oxygen administration and prescription inhalers. The reason: “Treatment of chronic obstructive pulmonary disease is disallowed, as it is unrelated to the work injury of August 23, 2007.”

Vandre appealed, and an administrative hearing officer upheld the denial of those benefits. A state district court upheld the hearing officer’s decision. Vandre took his case to the Wyoming Supreme Court.

Hearing officer got it wrong

In its review of Vandre’s case, the supreme court noted that in Wyoming’s workers’ comp law:

“Injury does not include any injury or condition preexisting at the time employment begins with the employer against whom a claim is made … however, in Wyoming an employer takes the employee as he finds him … An employee thus may recover for a preexisting condition if his employment aggravated, accelerated, or combined with the disease or infirmity to produce the condition for which compensation is sought.”

The hearing officer had found that Vandre’s COPD was the same before and after his work injury and that any aggravation of it was due to his smoking.

Vandre had prescriptions for oxygen and inhalers before and after the work injury.

However, the court noted that Vandre relied on those prescriptions much more after his injury.

Vandre testified he didn’t use oxygen or inhalers before the injury.

His doctor said some patients with COPD adapt to their condition, even working as Vandre did without using their oxygen or inhalers.

The hearing officer opined that his doctor hadn’t sufficiently explained how the work injury had exacerbated Vandre’s COPD.

But the Wyoming Supreme Court found that just wasn’t the case.

Vandre’s doctor said the work injuries accelerated the worsening of his COPD.

The doctor didn’t say that smoking wasn’t a factor. He said that was a factor, too.

The court said the hearing officer was wrong to try to determine whether there was additional physical damage to Vandre’s lungs.

While there was no evidence of that, the evidence was clear that Vandre’s respiratory functioning was aggravated and his dependence on oxygen and other therapies had increased.

The court found:

“Vandre’s work injuries combined with his preexisting condition to create the need for treatment. The hearing examiner’s rejection of Dr. Berry’s opinion on the ground that it was not sufficiently explained is therefore not supported by the record.”

The court ruled workers’ comp should cover the bills for Vandre’s COPD because it was made worse by his work injuries. It didn’t matter which factor contributed more, smoking or work injuries. What matters is that the work injuries had a significant contribution to his current condition.

What do you think about the court’s decision? Let us know in the comments.

(Harold F. Vandre v. State of Wyoming, Dept. of Workforce Services, Workers’ Compensation Div., Supreme Court of Wyoming, No. S-14-0176, 3/31/15)

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  1. when in doubt, always make the companies / ins. companies pay for everything… isn’t that how America works these days? We wouldn’t want to hurt any individuals feelings, would we? After all, it’s not HIS fault that he smokes, we must blame it on someone else…

  2. miltonmojo says:

    I think this is utter CRAP! Certainly this worker is entitled to help with his physical injuries resulting from the accident, and presumably also the resulting disability rating (assuming it’s based on those same physical injuries, not the COPD). But the COPD part is pre-existing and primarily self-inflicted (plus the article mentions the worker had continued to smoke heavily even after his accident), so why should treatment of it ever fall under WC?
    This case illustrates very clearly one of the major faults in much of the WC system, namely that if work happens to provide even the smallest contribution to a worker’s condition (that proverbial last straw if you will) then work ends of with 100% of the financial responsibility for it. In this case we see a worker who obviously contributed heavily to his own problem through his smoking, but who will now receive 100% care on somebody else’s dime – once again demonstrating that the courts are interpreting WC into one massive social entitlement system for anyone bold enough to want to take advantage.

  3. The fact is, regardless of smoking or not, the injury was very serious and obviously related to an on the job report-able accident. It says, “he suffered rib fractures, that caused his lung to collapse”. Now, I am very pro-safety, and having been trained OSHA and MSHA I am pretty tough on whether comp should be paid. I look at all the evidence I can find, and I can usually find something that goes straight back to “avoidable incident”. In this case that would be, “why is a trained heavy equipment operator walking anywhere near a place where there is a paver in operation?” Avoidable? Most definitely. However, that does not change the fact that the injuries were in fact caused by the incident and therefore, yes, workman’s comp should cover the medical bills.

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