Sullins v. United Parcel Serv., Inc.

• Decision Date: 17 February 2015
• Docket Number: No. 19226.,19226.
• Citation: 315 Conn. 543,108 A.3d 1110
• Court: Connecticut Supreme Court
• Parties: John W. SULLINS, v. UNITED PARCEL SERVICE, INC., et al.

315 Conn. 543

108 A.3d 1110

John W. SULLINS

v.UNITED PARCEL SERVICE, INC., et al.

No. 19226.

Supreme Court of Connecticut.

Argued Oct. 30, 2014.

Decided Feb. 17, 2015.

Nancy S. Rosenbaum, Wallingford, for the appellants (defendants).

Robert F. Carter, Woodbridge, with whom was Nancy L. Meyer, West Hartford, for the appellee (plaintiff).

ROGERS, C.J., and PALMER, EVELEIGH, McDONALD, ESPINOSA and VERTEFEUILLE, Js.

Opinion

EVELEIGH, J.

The issue in this certified appeal is whether a disability arising from a progressive nonoccupational condition that manifests prior to an occupational injury that further disables the same body part is a compensable preexisting injury or a noncompensable concurrently developing disease under the apportionment rule set forth in Deschenes v. Transco, Inc., 288 Conn. 303, 953 A.2d 13 (2008). The defendants, United Parcel Service, Inc. (UPS), and its insurer, Liberty Mutual Insurance Company, appeal from the judgment of the Appellate Court in favor of the plaintiff, John W. Sullins, concluding that the defendants should pay the entirety of the plaintiff'spermanent partial disability to his upper extremities and hands, instead of apportioning the payment so that the defendants pay only for the proportion of disability attributed to the plaintiff's occupational injuries, as the Workers' Compensation Review Board (board) and the Workers' Compensation Commissioner for the First District (commissioner) had determined. On appeal, the defendants claim that the Appellate Court improperly determined that Deschenes is inapplicable to the facts of the present case and, accordingly, incorrectly concluded that apportionment is not required. We affirm the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following relevant facts and procedural history. “The plaintiff worked for UPS, unloading trucks and sorting small parts, for approximately thirty-two years. The plaintiff was diagnosed with diabetes in 1987 and with diabetic neuropathy in 1998. The diabetic neuropathy caused impairment to his arms and hands, including weakness and tingling in the plaintiff's hands as well as difficulty in grasping things. On March 5, 2003, the plaintiff suffered injuries to his upper arms and hands as the result of a work related accident. He received medical treatment, including surgeries, and returned to his job duties without restrictions until he retired in 2008. By agreement of the parties, after his original treating physician retired, the plaintiff was examined by Richard Linburg, an arthroscopic hand surgeon, on January 5, 2010. In his report of January 5, 2010, Linburg assigned a disability rating of 44 percent permanent partial impairment to the plaintiff's bilateral upper extremities (arms) and 40 percent permanent partial impairment to the plaintiff's hands. These ratings were not in dispute. Linburg attributed 10 percent of the 44 percent impairment of the plaintiff's arms to work related cubital tunnel syndrome and the surgery used to treat it, and 10 percent of the 40 percent impairment of his hands to work related carpal tunnel syndrome and the surgery used to treat it. Linburg also opined that the plaintiff's occupation and work activities had no influence on the development of the nonoccupational disease to his arms and hands.

“The plaintiff's claim for benefits pursuant to the Workers' Compensation Act (act), General Statutes § 31–275 et seq., was heard on July 13, 2010, during a formal hearing before the commissioner. The commissioner heard oral argument on July 21, 2010, and issued his finding and award on December 7, 2010. The commissioner found that: (1) ‘[t]he [plaintiff's] diabetic neuropathyis an independent and nonoccupational developing disease process affecting his arms and hands'; (2) ‘[t]he [plaintiff's] occupation/work activities had no influence in the development of the nonoccupational disease to his arms and hands'; and (3) ‘[a]s a result, and pursuant to Deschenes ... the [plaintiff] is entitled to receive 10 [percent] permanent partial disability benefits to his bilateral upper extremities and 10 [percent] permanent partial disability benefits to his bilateral hands, less credits for permanency benefits previously paid on these body parts.’ The commissioner issued an order consistent with that finding.

“The plaintiff then filed a motion to correct the commissioner's findings, seeking an order that the disability not be apportioned and, among other corrections, that the commissioner strike subparagraph (K), which referred to the plaintiff's permanent disability resulting from ‘a combination of two concurrent disease processes, one of which is nonoccupational, the diabetic neuropathy ’ and subparagraph (R), which read: ‘The [plaintiff's] diabetic neuropathy is an independent and nonoccupational developing disease process affecting his arms and hands.’ In place of subparagraph (R), the plaintiff sought to have the commissioner substitute the following: ‘The [plaintiff's] diabetic neuropathy is a [preexisting] condition pursuant to [General Statutes] § 31–349(a).’¹ The commissioner denied the motion in its entirety. The plaintiff then appealed the commissioner's decision to the board.

“The board concluded that the facts found by the commissioner were similar to those found in Deschenes, and that, because Deschenes also applied to previous disabilities, § 31–349(a) did not apply. Accordingly, the board affirmed the commissioner's decision.” (Footnotes altered.) Sullins v. United Parcel Service, Inc., 146 Conn.App. 154, 156–59, 77 A.3d 196 (2013). Additional facts will be set forth as necessary.

The plaintiff appealed to the Appellate Court, claiming that “(1) the board incorrectly applied the holding in Deschenes to the facts of this case, (2) the board improperly upheld the commissioner's award because he failed to find that the plaintiff's diabetic neuropathy was a previous disability under § 31–349, (3) the defendants failed to prove, as required by Deschenes, that the plaintiff's diabetic neuropathy and work related cubital tunnel and carpal tunnel conditions were ‘concurrently developing,’ and (4) the board improperly upheld the commissioner's award even though he failed to make findings of fact necessary to apply the Deschenes rule.” Id., at 159, 77 A.3d 196.

A majority of the Appellate Court panel agreed with the plaintiff that “uncontroverted evidence in the record, as well as the commissioner's own findings, show that the impairment caused by the plaintiff's diabetic neuropathy was a previous disability, and because it was, it could not have also been a concurrently developing disease process.”² Id., at 161, 77 A.3d 196. Accordingly, the Appellate Court concluded that “the plaintiff's permanent disability met the standard in ... § 31–349, and therefore, may not be apportioned. The board, therefore, incorrectly concluded that the circumstances fell within the narrow statutory gap that [was] filled ... in Deschenes. ” (Footnote omitted.) Id., at 166, 77 A.3d 196.

The defendants petitioned for certification to appeal from the judgment of the Appellate Court. This court granted the defendants' petition for certification to appeal limited to the following issue: “Did the Appellate Court properly apply Deschenes v. Transco, Inc., [supra, 288 Conn. at 303, 953 A.2d 13 ], and thus properly reverse the [board's] decision upholding the [commissioner's] determination that the [plaintiff] should only be compensated for permanent partial disability that was caused by his work related injury?” Sullins v. United Parcel Service, Inc., 310 Conn. 943, 79 A.3d 894 (2013).

On appeal to this court, the defendants assert that the Appellate Court improperly applied Deschenes to the facts of this case and improperly concluded that the plaintiff's permanent disability met the standard in § 31–349(a) and, therefore, may not be apportioned. In response, the plaintiff claims that the Appellate Court properly concluded that the plaintiff was entitled to compensation for the entire disability of each of his upper extremities under § 31–349(a) because the undisputed evidence demonstrated that the plaintiff's preexisting disability of his upper extremities caused by diabetic neuropathy, when combined with the disability caused by the subsequent compensable accidental injury to his upper extremities at work in 2003, caused a disability that was materially and substantially greater than the disability that would have resulted from the work related injury alone. We agree with the plaintiff and, accordingly, affirm the judgment of the Appellate Court.

“As a threshold matter, we set forth the standard of review applicable to workers' compensation appeals. The principles that govern our standard of review in workers' compensation appeals are well established. The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Stec v. Raymark Industries, Inc., 299 Conn. 346, 355, 10 A.3d 1 (2010). “[Moreover, it] is well established that [a]lthough not dispositive, we accord great weight to the construction given to the workers' compensation statutes by the commissioner and review board.... Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion.... We have determined, therefore, that the traditional deference accorded to an agency's interpretation of a statutory term is unwarranted when the construction of a statute ... has not previously been subjected to judicial scrutiny [or to] ... a governmental agency's time-tested interpretation.... Chambers v. Electric Boat Corp., 283 Conn. 840, 844, 930 A.2d 653 (2007).”...