Deschenes v. Transco, Inc.

Opinion

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 *481 exposure, should be apportioned 1 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 appeal 3 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 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 *482 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 bom 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 plaintiffs 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

*483 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 injuiy 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 plaintiffs 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 plaintiffs 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 plaintiffs 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 plaintiffs lung *484 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 plaintiffs disability was related to his emphysema, with one quarter of that, or 6.25 percent of the total disability, attributable to the asbestos exposure. 7 The board also stated that Cullen had testified about the “synergistic effects” of the plaintiffs emphysema and asbestos related disease, and specifically “about the interplay between asbestos and smoke exposure that contributes to the [plaintiffs] overall permanency, based on his experience studying ‘this population of jointly exposed men.’ . . . The ongoing effects of the [plaintiffs] 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 [plaintiffs] smoking-induced emphysema.”

Relying on its decision in Strong v. United Technologies Corp., No. 4563 CRB-1-02-8 (August 25, 2003), the board farther concluded that the plaintiffs “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 *485 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 plaintiffs 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 [plaintiffs] 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 [plaintiffs] 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.

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 plaintiffs 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 plaintiffs smoking related emphysema, which was *486 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 plaintiffs 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. *487 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. ... It is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and [the] board. ... A state agency is not entitled, however, to special deference when its determination of a question of law has not previously been subject to judicial scrutiny.” (Internal quotation marks omitted.) Coppola v. Logistec Connecticut, Inc., 283 Conn. 1, 5-6, 925 A.2d 257 (2007); see also Tracy v. Scherwitzky Gutter Co., 279 Conn. 265, 272, 901 A.2d 1176 (2006) (“[n] either the . . . board nor this court has the power to retry facts”); Gartrell v. Dept. of Correction, 259 Conn. 29, 36, 787 A.2d 541 (2002) (“[t]he commissioner has the power and duty, as the trier of fact, to determine the facts” [internal quotation marks omitted]).

We note at the outset that the legal difficulty in the present case stems from its factual posture, namely, that Delaney did not find that the plaintiffs emphysema was a preexisting condition that was aggravated by his asbestos-related lung condition, a determination that would have entitled the plaintiff to full compensation under General Statutes § 31-275 (1) (D). 9 See Gartrell *488 v. Dept. of Correction, supra, 259 Conn. 43 (“compensating an employee for the exacerbation of a preexisting mental or emotional condition that was caused by a work-related physical injury farthers the beneficent purposes of the Workers’ Compensation Act [act]”); see also Cashman v. McTernan School, Inc., 130 Conn. 401, 408-409, 34 A.2d 874 (1943) (statutory limitation on compensation for aggravation of preexisting diseases applicable only to preexisting “occupational diseases”). Similarly, Delaney did not find that the plaintiffs emphysema was a “previous disability” and that the asbestos exposure was a “second injury resulting in a permanent disability caused by both the previous disability and the second injury which is materially and substantially greater than the disability that would have resulted from the second injury alone,” which would have entitled him to full compensation under General Statutes § 31-349 (a). Instead, the question presented here, namely, whether the act requires the apportionment of benefits when a disability is caused by two separate, but concurrently developing medical conditions, only one of which is occupational in nature, is one of first impression for Connecticut’s appellate *489 courts 10 that requires us to fill a gap in our statutes. 11 *490 Accordingly, it presents a question of law subject to plenary review. See, e.g., Tracy v. Scherwitzky Gutter Co., supra, 279 Conn. 272-73.

In resolving this statutory gap, “we are mindful that the act indisputably is a remedial statute that should be construed generously to accomplish its purpose. . . . The humanitarian and remedial purposes of the act counsel against an overly narrow construction that unduly limits eligibility for workers’ compensation. . . . Accordingly, [i]n construing workers’ compensation law, we must resolve statutory ambiguities or lacunae in a manner that will further the remedial purpose of the act. . . . [T]he purposes of the act itself are best served by allowing the remedial legislation a reasonable sphere of operation considering those purposes.” (Citations omitted; internal quotation marks omitted.) Pizzuto v. Commissioner of Mental Retardation, 283 Conn. 257, 265, 927 A.2d 811 (2007).

Our sister states have taken divergent approaches to this issue, and the factual and statutory peculiarities attendant to each state’s case law renders it difficult to discern true “majority” or “minority” approaches. The seminal case in this area is Pullman Kellogg v. Workers’ Compensation Appeals Board, 26 Cal. 3d 450, 452-53, 605 P.2d 422, 161 Cal. Rptr. 783 (1980), which involved a pipefitter who had been exposed to numerous toxins, including asbestos, over forty years of work, but who also smoked a pack of cigarettes per day over that period. The pipefitter was diagnosed with chronic obstructive pulmonary disease, specifically chronic bronchitis and emphysema, which a physician’s report stated was caused by “ ‘two factors,’ ” namely, his occupational exposure and his smoking. Id., 453. He was rated as having a permanent 40 percent disability, and the workers’ compensation commissioner reduced the benefits award by 50 percent to reflect the degree to *491 which the disability had an occupational cause. Id., 453-54.

On appeal, the California Supreme Court concluded that the physician’s “opinion that 50 percent of [the claimant’s] pathology was caused by exposure to harmful substances and the remainder to his smoking habit does not provide a basis for apportionment. It is disability resulting from, rather than a cause of, a disease which is the proper subject of apportionment) ‘pathology’ may not be apportioned. . . . The [physician’s] report does not attribute any part of the disability to [the claimant’s] smoking of cigarettes; rather, it purports to make an apportionment of ‘pathology.’ Moreover, it does not state whether [the claimant] would have been disabled as the result of the smoking in the absence of the work-related inhalation of harmful substances. For all that appears in the record, he would not have suffered any disability whatever because of his smoking habit if he had not been exposed to damaging substances in his work. In the absence of such evidence, apportionment was not justified.” 12 (Citations omitted; emphasis added.) Id., 454-55.

The California Supreme Court further emphasized that “the fact that [the claimant’s] disease resulted from both work-related and nonindustrial causes operating concurrently and that the nonindustrial component did not predate the industrial injury does not militate against application of the principles of apportionment. *492 Any part of [the claimant’s] lung disease which was due to his smoking preceded his disability, and the decisive issue ... is whether such disease was accelerated or aggravated by his employment and whether its normal progress would have caused any disability absent the exposure to harmful substances in his work.” (Emphasis added.) Id., 455. Finally, the court emphasized that the burden of proving that “none of the disability is due to a preexisting condition” falls to the employer, who is the party that “benefits from a finding of apportionment . . . ,” 13 Id., 455-56.

We find North Carolina case law even more instructive because that state, like Connecticut, has a statutory gap in this area. In Morrison v. Burlington Industries, 304 N.C. 1, 4-5, 282 S.E.2d 458 (1981), the claimant, a textile worker, became totally disabled when she contracted byssinosis, a chronic obstructive lung condition caused by exposure to cotton dust. She also suffered from phlebitis, varicose veins and diabetes. Id., 6. The compensation commission concluded that the claimant was entitled to only a 55 percent permanent partial disability award, which reflected the portion attributable to the byssinosis. Id., 7.

On appeal, the North Carolina Supreme Court rejected the claimant’s argument that the state workers’ compensation act “permits no such apportionment of an award in a case of total incapacity,” and that “if an occupational disease acting together with non-job-related infirmities causes total disability the employee is entitled to compensation for total disability.” Id., 11. *493 Noting that the workers’ compensation act “is not, and was never intended to be, a general accident and health insurance act,” the court stated that “the inquiry here is to determine whether, and to what extent, [the claimant] is incapacitated by that part of her chronic obstructive lung disease caused by her occupation to earn .... It is overwhelmingly apparent that disability resulting from an accidental injury, or disablement resulting from an occupational disease, as the case may be, must arise out of and in the course of the employment, i.e., there must be some causal relation between the injury and the employment before the resulting disability or disablement can be said to ‘arise out of the employment.” Id., 11-12. After considering the state’s law defining “occupational diseases,” 14 the court concluded that the “claimant’s disablement resulting from the occupational disease does not exceed 50 to 60 percent and that the remaining 40 to 50 percent of her disability results from bronchitis, phlebitis, varicose veins, diabetes, and that part of her chronic lung disease not caused by her occupation. These ailments were in no way caused, aggravated or accelerated by the occupational disease.” Id., 13. The court stated that the industrial commission, therefore, “had no legal authority to award the claimant compensation for total disability when 40 to 50 percent of her disablement was not occupational in origin and was not aggravated or accelerated by any occupational disease.” 15 Id.

*494 The North Carolina Supreme Court concluded by summarizing: “(1) an employer takes the employee as he finds her with all her pre-existing infirmities and weaknesses. (2) When a pre-existing, nondisabling, non-job-related condition is aggravated or accelerated by an accidental injury arising out of and in the course of employment or by an occupational disease so that disability results, then the employer must compensate the employee for the entire resulting disability even though it would not have disabled a normal person to that extent. (3) On the other hand, when a pre-existing, nondisabling, non-job-related disease or infirmity eventually causes an incapacity for work without any aggravation or acceleration of it by a compensable accident or by an occupational disease, the resulting incapacity so caused is not compensable. (4) WTien a claimant becomes incapacitated for work and part of that incapacity is caused, accelerated or aggravated by an occupational disease and the remainder of that incapacity for work is not caused, accelerated or aggravated by an occupational disease, the Workers’ Compensation Act of North Carolina requires compensation only for that portion of the disability caused, accelerated or aggravated by the occupational disease.” Id., 18.

We find particularly instructive the application of Morrison in Pitman v. Feldspar Corp., 87 N.C. App. 208, 360 S.E.2d 696 (1987), review denied, 321 N.C. 474, 364 S.E.2d 924 (1988). In Pitman, the claimant was diagnosed with silicosis after twenty-three years of exposure to silica dust, and stopped working at that point because of constant shortness of breath and chest pain. Id., 210. He also was diagnosed with obstructive lung disease resulting from cigarette smoking and asthma, which one physician testified had caused 50 *495 percent of his impairment to be unrelated to silicosis. Id. Following Morrison, the court remanded the case to the compensation commission because further findings were needed “regarding whether any portion of the plaintiffs total incapacity to work was caused by conditions unrelated to employment.” 16 Id., 214; see also *496 Stroud v. Caswell Center, 124 N.C. App. 653, 657, 478 S.E.2d 234 (1996) (following Morrison and Pitman and remanding case for factual findings about extent to which claimant’s disability resulted from “air flow obstruction caused by prior cigarette smoking as opposed to asbestosis”).

Accordingly, on the basis of these well reasoned decisions, we conclude that apportionment or proportional reduction of benefits is appropriate when a respondent employer is able to prove 17 that: (1) a disability has resulted from the combination of two concurrently developing disease processes, one that is nonoccupational, and the other that is occupational in nature; and (2) the conditions of the claimant’s occupation have no *497 influence on the development of the nonoccupational disease. 18 In our view, this conclusion is consistent with the legislature’s treatment of the aggravation of preexisting injuries under § 31-275 (1) (D), and second injuries under § 31-349 (a), in that it accommodates two axiomatic principles of workers’ compensation law, namely, that to be compensable, the injury must arise out of and occur in the course of the employment, and also “that an employer takes the employee in the state of health in which it finds the employee.” (Internal quotation marks omitted.) Blakeslee v. Platt Bros. & Co., 279 Conn. 239, 245, 902 A.2d 620 (2006). Accordingly, the board, in relying on its decision in Strong v. United Technologies Corp., supra, No. 4563 CRB-1-02-8, applied an incorrect legal standard when it concluded that the *498 plaintiffs “smoking-related emphysema need not be treated separately for the purpose of assigning liability for the lung permanency,” and there “is no legal remedy that allows those employers to avoid liability for whatever portion of the claimant’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.” Put differently, apportionment or reduction of benefits is appropriate only in those cases wherein different diseases, one of which is occupational in nature, have combined to cause, in effect, two different disabilities, even if they ultimately affect the same bodily part or function. 19

*499 We further conclude that additional fact-finding proceedings are required because the record in the present case does not permit us to uphold the decision of the board under the correct legal standard, and also does not permit us to direct judgment in favor of the defendants because the commissioners have not made any findings with respect to the apportionment or proportional reduction; see footnote 1 of this opinion; of the plaintiffs benefits. Specifically, it has not been claimed that the plaintiffs emphysema is an occupational disease. Similarly, Delaney did not find that the conditions of the plaintiffs occupation influenced the development of his emphysema, or that it was impossible to make that determination. 20 Moreover, although there is evi *500 dence in the record, including Cullen’s testimony and report, as well as the report of Michael Conway, the physician appointed by a commissioner, to support apportionment of the 25 percent permanent partial disability among the two diseases, Delaney did not make a specific finding of fact corresponding to that evidence.

Furthermore, the board’s reliance on Cullen’s testimony with respect to the “interplay between asbestos and smoke exposure that contributes to the [plaintiffs] overall permanency” in support of its conclusion 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 [plaintiffs] smoking-induced emphysema,” was improper. Viewed in context, that portion of Cullen’s testimony had nothing to do with the effect of asbestos exposure on the development of emphysema. Rather, that testimony pertained only to the “synergistic” effect of asbestos exposure and cigarette related emphysema on the potential development of lung cancer, a medical condition not at issue in this case. 21 Accordingly, we conclude that the conclusion of *501 the board does not withstand review under the standard that we have articulated in this opinion, and we remand the case for further fact-finding proceedings with respect to the apportionment or proportional reduction of the plaintiffs benefits.

The decision of the compensation review board is reversed and the case is remanded to the board with direction to reverse the commissioner’s decision, and to remand the case to a new commissioner for further proceedings according to law.

In this opinion the other justices concurred.