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Workers' Comp Award in Asbestos Case Reduced to Account for Cigarette Usage
The Connecticut Law Tribune
August 14, 2008
The Connecticut Supreme Court has ruled that a laborer's lung damage from smoking can be segregated from respiratory problems caused by asbestos work, and his workers' compensation award reduced by the portion of his ailment caused by cigarettes.
Workers' comp plaintiffs lawyers say that before the decision in George Deschenes v. Transco, such blended injuries had consistently resulted in full compensation.
The justices reached their conclusion after a long struggle. The ruling, to be officially released this week, was a reconsideration of a decision issued in the same case last year. The justices tightened some language after considering amicus briefs by lawyers who represent injured workers.
While some plaintiffs attorneys stated that the decision is now limited to the facts in this case, others fear an emergence of blame-the-victim doctrines that use nonwork-related ailments to justify reductions in workers' comp benefits.
"For the court to judicially create this apportionment where none had been before really caught the attention of a lot of people," said Nathan J. Shafner, of Groton, Conn.'s Embry & Neusner, who co-authored one of four amicus briefs in the case, on behalf of the New England Health Care Employees Union. "We saw this as more than a slippery slope -- this was a runaway train."
Justice Flemming L. Norcott Jr., writing for a unanimous court, saw the question as one that had never been asked before. Whether the Workers' Compensation Act requires official consideration of two separate but concurrent illnesses -- one occupational, the other not -- is a question of first impression, he wrote, and one "that requires us to fill a gap in our statutes."
In addition to the case record and amicus briefs, the court also reviewed cases from California and North Carolina, and concluded that when the nonoccupational disease emerges later than the work injury, the employer should be able to avoid payment for the nonoccupational portion of the overall injury.
The claimant, George Deschenes, is a 63-year-old former insulation installer represented by Christopher Meisenkothen, of New Haven's Early, Ludwick & Sweeney. Meisenkothen argued that the high court "has enacted a new rule of law based on the novel [and undefined] term 'concurrently developing disease process' in contravention of the Workers' Compensation Act." Any apportionment remedy has to be established by the state Legislature, not the courts, he contended.
Lucas D. Strunk, of Glastonbury, Conn.'s Pomeranz, Drayton & Stabnick, argued the winning side of the appeal; he represented the insurance company of Deschenes' employer, Transco Inc. "I think what the court has done is refresh everyone on what the rules are, in adding on a nonoccupational permanent partial disability," Strunk said in an interview.
TWO PRINCIPLES
The court needed to reconcile two classic principles of workers' comp law. One is that, to be compensable, the injury has to arise from and occur in the course of employment. The other is that an employer takes his employee in the state of health in which the employer finds him. In tort law, this is illustrated by the so-called "eggshell skull plaintiff," who is no less entitled to medical and economic recovery than is a hard-headed plaintiff.
The workers' compensation commissioner who reviewed Deschenes' case, Stephen Delaney, concluded that each of Deschenes' employers took him as they found him -- a man with a history of smoking and a risk of developing the diseases it entails. And so, Delaney ruled, Deschenes was entitled to full workers' comp benefits.
The high court agreed that, with slightly different facts, Deschenes would have been entitled to full compensation. If Delaney had found that Deschenes had smoking-related emphysema as a pre-existing condition or "previous disability" that was aggravated by asbestos, he would have been entitled to full compensation. But instead, doctors opined that Deschenes suffered two separate, concurrent lung injuries, only one of which was work-related.
The workers' comp board upheld Delaney. It ruled that "the employer is responsible for the effects of a compensable injury, even if that injury's toll on a particular plaintiff is unexpectedly severe because of the way it collaborates with other health problems." There was no remedy for the employer, the board held, because Deschenes' two lung conditions "combined to cause a single impairment."
The Supreme Court disagreed, siding with the defendants. They argued that the axiom about an employer taking his employee as he finds him is inapplicable because there was no evidence that smoking-related emphysema was pre-existing when Deschenes was hired. Additionally, as a public policy matter, the justices stated that "employers should not have to bear the costs of their employees' smoking habits."
Strunk disagreed that the Supreme Court was forging a new legal doctrine: "I think the court appreciated the difference between taking someone as you find them, and taking someone as they become. This is a case where a pre-existing condition was not found."
The court cited with approval North Carolina's 1981 decision in Morrison v. Burlington Industries that the victim of cotton dust lung disease was only entitled to 55 percent of a permanent partial disability award, because the rest of her ailments were not job related. In that case, the ailments consisted of phlebitis, varicose veins and diabetes.
FURTHER PROCEEDINGS
As for the Connecticut case, there was too little information in the court record for the Supreme Court to issue a final ruling. So the case was sent back for further legal proceedings before a different commissioner.
The record did not reflect any finding on whether Deschenes' emphysema was work related, or enough findings of fact about the relative proportion of injury caused by smoking as opposed to asbestos exposure.
In the meantime, the workers' comp bar will be watching the case attentively. Deschenes' lawyer, Meisenkothen, said he was glad the court's 2007 ruling was narrowed to apply only to the specific facts of this case. He said he hopes there's no trend toward the state weighing multiple diseases in calculating workers' comp payments.
Steven Embry, of Embry & Neusner, said the worst-case scenario for plaintiffs attorneys would be if the doctrine in Deschenes is applied to a broad range of injuries -- from cancer to back problems -- and a portion workers' comp payments reduced on grounds that some ailments can be traced to a factor not arising from the workplace.
"The Legislature needs to fix this," he said.
