Smoking does not derail work comp case

The appellate court recently has held that an injured workers smoking was not sufficient to retard his recovery from the work injury to prevent him from receiving his benefits.  In that case the injured worker had a back surgery which did not work. The injured worker then underwent a fusion for  the failed back surgery. The fusion did not work, and the surgeon recommended a third surgery.  The respondents doctor testified the reason the fusion surgery failed was because the injured worker was a smoker and a third surgery would not help because he was still a smoker.

The court held that although smoking did not help the recovery of the injured worker, and may have been the reason the fusion surgery failed, if it were not for the initial work injury and first surgery there would not have been a second fusion surgery that also failed and found the injured worker entitled to the third surgery and continued benefits under the act.