Deschenes v. Transco, Inc.

• Decision Date: 12 August 2008
• Docket Number: No. 17853.,No. 17852.,17852.,17853.
• Citation: 953 A.2d 13,288 Conn. 303
• Parties: George DESCHENES v. TRANSCO, INC., et al.
• Court: Connecticut Supreme Court

953 A.2d 13

288 Conn. 303

George DESCHENES v. TRANSCO, INC., et al.

No. 17852.

No. 17853.

Supreme Court of Connecticut.

Argued September 6, 2007.

Decided August 12, 2008.

Lucas D. Strunk, Glastonbury, with whom was John W. Greiner, for the appellants in each case (defendant Reed and Greenwood Insulation Company et al.).

Christopher Meisenkothen, New Haven, for the appellee in both cases (plaintiff).

ROGERS, C.J., and NORCOTT, KATZ, PALMER and ZARELLA, Js.

NORCOTT, J.

The sole issue in this appeal is whether the workers' compensation benefits payable to a claimant with a 25 percent permanent partial disability in each lung, caused in part by work-related asbestos exposure, should be apportioned¹ or reduced by the amount of that disability attributable to a concurrently developing nonoccupational disease, specifically cigarette smoking related emphysema. The defendants, Reed and Greenwood Insulation Company (Reed), and AC & S, Inc. (AC & S),² appeal³ from the decision of the compensation review board (board) affirming the decision of the workers' compensation commissioner for the second district, Stephen Delaney, awarding compensation for a 25 percent permanent partial disability in each lung to the plaintiff, George Deschenes. We conclude that further findings of fact are required because apportionment of permanent partial disability benefits is appropriate when a respondent employer is able to prove that: (1) a disability has resulted from the combination of two concurrently developing disease processes, one that is nonoccupational, and the other that is work related; and (2) the conditions of the claimant's occupation have no influence on the development of the nonoccupational disease. Accordingly, we reverse the decision of the board and remand the case for further proceedings.

The record reveals the following facts and procedural history. The plaintiff, who was born in 1945, joined Local 33 of the International Association of Heat and Frost Insulators and Asbestos Workers (union) in 1967. After he joined the union, the plaintiff worked until 1985 as an insulator on numerous commercial construction sites for multiple employers, including Reed and AC & S. During that time, he was exposed to significant amounts of asbestos, with his last exposure occurring in 1985, while he was employed by Transco. The plaintiff has not been able to work full-time since 1994, when he was diagnosed with asbestos related pleural lung disease.⁴

Asbestos is, however, not the only toxic substance to which the plaintiff's lungs have been exposed. He started smoking cigarettes at the age of seventeen or eighteen, and he smoked one and one-half to two packs per day from the age of twenty-five until 1991, when he had a heart attack requiring coronary artery bypass surgery. At that point, he reduced his smoking, and currently is down to one cigarette after each meal. The plaintiff has, however, developed emphysema as a result of his cigarette smoking.⁵

The plaintiff filed a claim for compensation with the workers' compensation commission in 1994. After a hearing held in 2003, the commissioner for the eighth district, Amado Vargas, found that the plaintiff had suffered a lung injury as a result of his asbestos exposure at work, and "another lung injury" that resulted from his "long history of cigarette smoking...." Vargas, who desired to appoint an independent physician to assess the plaintiff's condition, left open the apportionment and permanent partial disability claims pending that examination. At a subsequent hearing, Delaney adopted Vargas' findings, and concluded that the plaintiff had sustained a 25 percent permanent partial disability to each lung "as a result of [his] asbestos related injury." Delaney noted that the various physicians who testified agreed about the extent of the plaintiff's disability, but disagreed about whether that disability was caused by asbestos exposure or smoking. Delaney found, however, that the "work related asbestos exposure was a substantial contributing factor to this injury and resulting permanency," and ordered the defendants to pay permanent partial disability benefits to the plaintiff equating to 25 percent of each of his lungs, apportioned among the defendants, based on his length of prior service with each.⁶

The defendants petitioned the board for review of Delaney's decision. The board agreed with Delaney that the plaintiff's entire disability was compensable. The board concluded that Delaney's conclusions were adequately supported by the testimony of Mark Cullen, a physician who had testified that the plaintiff's lung impairment was the result of both "his asbestos exposure and ... his `former smoking,' rather than ... any smoking that had occurred after the disease symptoms had begun to develop." The board also noted Cullen's testimony that three quarters of the plaintiff's disability was related to his emphysema, with one quarter of that, or 6.25 percent of the total disability, attributable to the asbestos exposure.<sup>7</sup> The board also stated that Cullen had testified about the "synergistic effects" of the plaintiff's emphysema and asbestos related disease, and specifically "about the interplay between asbestos and smoke exposure that contributes to the [plaintiff's] overall permanency, based on his experience studying `this population of jointly exposed men.' ... The ongoing effects of the [plaintiff's] asbestos exposure were not described by [Cullen] as being self-limiting. Thus, it was reasonable to conclude that the effects of the asbestos exposure have continued over time to produce an impairment, whether the progression has happened of its own volition, or in conjunction with the [plaintiff's] smoking-induced emphysema."

Relying on its decision in Strong v. United Technologies Corp., No. 4563 CRB-1-02-8 (August 25, 2003), the board further concluded that the plaintiff's "smoking-related emphysema need not be treated separately for the purpose of assigning liability for the lung permanency, even if some doctors calculated the percentage of the impairment that was caused by asbestos exposure. It has long been a fundamental principle of workers' compensation law that an employer takes an employee as it finds him, and that any statutory variation from that principle must be construed to work a minimum encroachment on that rule." The board emphasized that even if the plaintiff's smoking related emphysema is considered a "concurrently developing condition," rather than a preexisting condition, "that argument does not undo the foundational tenet that the employer is responsible for the effects of a compensable injury, even if that injury's toll on a particular claimant is unexpectedly severe because of the way it collaborates with other health problems. Here, the employers and insurers that were on the risk during the [plaintiff's] period of asbestos exposure are responsible for the effects of that occupational exposure on the [plaintiff], with apportionment rights amongst themselves under [General Statutes] § 31-299b. There is no legal remedy that allows those employers to avoid liability for whatever portion of the [plaintiff's] lung impairment might be traceable to non-work-related emphysema, insofar as it was one of two conditions that combined to cause a single impairment." Accordingly, the board affirmed the decision of Delaney.⁸ This appeal followed. See footnote 3 of this opinion.

On appeal, the defendants claim that the board improperly awarded the plaintiff compensation for the entire 25 percent permanent partial disability in each lung. The defendants first argue that they are responsible for only one quarter of the plaintiff's total disability because the plaintiff has two distinct lung injuries, one occupational, and one not. As a corollary to this argument, the defendants also contend that the 25 percent award is improper because there was no finding that the plaintiff's smoking related emphysema, which was a distinct disease process that had developed concurrently with his asbestos related symptoms and was responsible for 75 percent of his disability, was itself occupational in nature in any way and, therefore, compensable. Emphasizing that there is no evidence that the plaintiff's emphysema was a preexisting condition that was aggravated by the asbestos exposure, they contend that the axiom that an employer takes an employee as it finds him is inapplicable and that, as a policy matter, employers should not have to bear the costs of their employees' smoking habits.

In response, the plaintiff, emphasizing the broad construction and application customarily given to the workers' compensation statutes, contends that, although it "is undisputed that the [plaintiff] has emphysematous changes in his lungs, and it is undisputed that the [plaintiff] has asbestos-related pleural disease ... it is far from clear that he has two separate and distinct lung injuries." The plaintiff notes the "synergistic and often difficult to separate" effects of asbestos exposure and cigarette smoking, and also claims that there is no practical way to determine whether he would have a lung impairment in the absence of asbestos exposure, or whether the cigarette related impairment would be the same without the asbestos exposure. The plaintiff emphasizes that the defendants all took him as they found him, specifically, as "a man with a history of smoking and a risk for developing smoking-related disease. Each successive employer took a man with a history of asbestos exposure and a risk for developing asbestos-related disease. And each successive employer took a man with both a history of cigarette smoking and asbestos exposure and a risk for developing synergistic lung disease." In light of the evidence adduced before Delaney, we agree with the defendants.

"As a threshold matter, we set forth the standard of review applicable to workers' compensation appeals. The principles that govern...