JAMES C. PALMER, Appellant, v. DEL WEBB'S HIGH SIERRA, Respondent
Palmer v. Del Webb's High Sierra
Rose, J., and Whitehead, D. J., concur.
JAMES C. PALMER, Appellant, v. DEL WEBB’S HIGH SIERRA, Respondent.
JAMES C. PALMER, Appellant, v. DEL WEBB’S HIGH SIERRA, Respondent.
No. 20338
September 1, 1992
838 P.2d 435
Nancyann Leeder, Nevada Attorney for Injured Workers, Carson City, for Appellant.
Perry & Spann and Douglas R. Rands, Reno, for Respondent.
Vargas <£ Bartlett and Albert F, Pagni, Reno, for Amicus Curiae South Tahoe Gaming Alliance.
Langton & Kilburn, Reno; Hamilton & Lynch, Reno, for Amicus Curiae Nevada Trial Lawyers Association.
The Honorable Jerry Carr Whitehead, District Judge of the Second Judicial District, was designated by the Governor to sit in place of The Honorable John Mowbray, Chief Justice. Nev. Const. art. 6, § 4.
OPINION
By the Court,
Springer, J.:
The issue in this case is whether a worker who claims to suffer from a disease caused by inhaling tobacco smoke exhaled by others in the work place is eligible for compensation under the Nevada Occupational Disease Act (NODA). Appellant Palmer filed a claim for occupational disease compensation, claiming that his lung disease was caused by environmental tobacco smoke present at his place of employment. The trial court, in reversing an appeals officers' adjudication in favor of Palmer, ruled that "[u]ntil such time as the Legislature so decides, the claim must fail." We agree with the trial court that until the legislature so decides, occupational disease claims based on inhalation of environmental smoke in the work place must fail. Specifically, we agree that environmental smoke, although usually present in a casino, is not uniquely "incidental to the character" of that business. Further, we conclude that secondary smoke is a hazard to which workers, as a class, may be "equally exposed outside of the employment." Therefore, we affirm the judgment of the trial court.
In reading the occupational disease statute one learns that an occupational disease must arise out of the employment, that is to say, it must be related to the nature of the employment at hand. The definitional statute, NRS 617.440, requires an occupational disease to be an incident of the employment and not merely an accidental consequence that is not related to the nature of the employment. Specifically, NRS 617.440(1) provides that the disease must be a "natural incident of the work as a result of the exposure occasioned by the nature of the employment." (Our emphasis.)
What this language means is that the disease must arise out of job conditions, specifically, the "nature of the employment." With regard to this requirement, that the disease-causing conditions must be "incidental to the character of the business," it is apparent that the legislature intended that there must be a connection between the kind of job and the kind of disease. Mere causation is not enough. One could easily say that going to work caused a person to develop ulcers; but the "nature of the employment" is, in most cases, not inherently ulcerogenic; and ulcers are not in all probability a "natural incident of the work" claimed to be the cause of the disease. Thus, a person who develops ulcers, catches a cold or gets a migraine headache on the job is probably not going to be able to assert a successful claim for occupational disease compensation.
We are, then, talking about a special kind of cause, "work-related" cause; and where, as appears to be the case here, disease is not related to the nature of the job, the disease cannot properly be called "occupational." It is apparent to us that despite its common presence in bars and casinos, environmental tobacco smoke is not incidental to the character of these businesses, is not a natural incident of these businesses.
The trial court disallowed Palmer's claim, stating that it "must fail under NRS 617.440(2)." We agree with this conclusion. Under NRS 617.440(2), an occupational "disease must be incidental to the character of the business and not independent of the relation of the employer and employee." Again, contracting the disease must be part of the actual job. Unless the disease is a part of the job, unless it is "incidental" to the character of the business, a disease cannot be said to have the necessary "direct causal relation" to the employment. NRS 617.440(l)(a). To illustrate: breathing in coal dust is certainly incidental to the character of coal mining work. Whereas coal dust, the cause of "black lung" disease, is certainly incidental to the character of coal mining (mining coal necessarily creates coal dust), tobacco smoke is not part of the nature or character of a bar or casino business. Tobacco smoke is not a "natural incident" of Palmer's employment nor is exposure to smoke "occasioned by the nature of the employment." NRS 617.440(l)(b). It is probably true that more environmental smoke is associated with the casino and bar businesses than with other businesses; still, the amount and density of such tobacco smoke is highly inconstant and may range from none to quite dense, depending on the particular bar or casino and depending on the air filtration systems and other variables that vary from business to business.
Of course, any individual business establishment might be shown to have an excessive amount of secondary smoke in the work place. Until fairly recently, many office environments were so filled with smoke that they were virtually intolerable to nonsmokers. Still, there is nothing in the "nature" of office work that would make stale tobacco smoke a "natural incident of the work." A nonsmoker unfortunate enough to contract some disease because of the excessive smoke rather clearly would not be entitled to compensation, because "environmental smoke disease" is not an occupational disease of office work. The legislature, of course, is free to declare that any person who contracts some secondary smoke-related disease at work is eligible for occupational disease compensation. The courts, we believe, do not have this power.
What we must not lose sight of is the reality that occupational disease coverage is designed to protect those who suffer illness because of the special nature of their occupation, those who suffer from an occupational disease. That is why words like "natural incident" of the employment and "occasioned by the nature of the employment" are used in NRS 617.440. In NRS 617.450, the statutory schedule of occupational diseases, we find further indication of the legislature's intention that occupational diseases be incidental to the character of the business and occasioned by the nature of the employment. The diseases listed in the statute are quite job-specific and are closely related to the nature of the particular occupation, diseases such as "brass and zinc poisoning" or "chrome ulceration of the skin or nasal passages." In addition, NRS 617.450 provides a description of the specific processes by which the listed diseases are contracted. The statutory purpose is clearly to provide protection for people who have diseases that are related to their particular jobs. If the disease is not related to the character of the particular business and not proximately caused by the "conditions under which the work is performed," it is not an occupational disease.
Smith v. Garside, 76 Nev. 377, 355 P.2d 849 (1960), is in harmony with our opinion in this case. In Smith, a woman working in a printing plant claimed that she had incurred serious diseases as a result of her employer's failure to heat the work place adequately. We concluded that a disease contracted under such circumstances was not "occupational" because the disease, which resulted from a poorly heated place of employment, was not, as required under NRS 617.440 "incidental to the character of the business." Id. at 382, 355 P.2d at 352. In Smith we also concluded that Smith's disease was not "occupational" because NRS 617.440 excludes from coverage any disease that "come[s] from a hazard to which workmen would have been equally exposed outside of the employment."
As the condition of poorly heated premises is common and not "incidental to the character" of the printing business, so is secondary tobacco smoke a condition that is not incidental to the "character" or "nature" of the casino business. Similarly, as the condition of poorly heated premises is one to which workers are commonly exposed outside of employment, so is secondary tobacco smoke a condition to which we are generally exposed independent of our employment.
Based on the statutory provisions and on our case law, we hold as a matter of law that diseases claimed to be caused by environmental tobacco smoke present in the work place are not covered by the Nevada Occupational Disease Act. We therefore affirm the judgment of the trial court.
Rose, J., and Whitehead, D. J., concur.
The concurring justice contends that Desert Inn Casino & Hotel v. Moran, 106 Nev. 334, 792 P.2d 400 (1990), is in "direct conflict" with this opinion. The concurring opinion, however, fails to recognize that Moran's aggravated joint disease was compensable as an occupational disease because it was specifically related to Moran's job as a masseuse and was a direct result of the character of the massage business which the casino ran. If Moran had been exposed to second-hand smoke while working as a masseuse, any lung disease would not have been compensable, as exposure to smoke was not incidental to Moran's job as a masseuse.