A Shifting Paradigm? Deschenes v. Transco and the Precarious New Landscape of Concurrently Developing Disease in Connecticut's Workers' Compensation Jurisprudence

JurisdictionConnecticut,United States
Publication year2021
CitationVol. 84 Pg. 339
Pages339
Connecticut Bar Journal
Volume 84.

84 CBJ 339. A SHIFTING PARADIGM? DESCHENES v. TRANSCO AND THE PRECARIOUS NEW LANDSCAPE OF CONCURRENTLY DEVELOPING DISEASE IN CONNECTICUT'S WORKERS' COMPENSATION JURISPRUDENCE

Connecticut Bar Journal
Volume 84, No. 4, Pg. 339
December 2010

A SHIFTING PARADIGM? DESCHENES v. TRANSCO AND THE PRECARIOUS NEW LANDSCAPE OF CONCURRENTLY DEVELOPING DISEASE IN CONNECTICUT'S WORKERS' COMPENSATION JURISPRUDENCE

By Christopher Meisenkothen(fn*)

What happened? It's hard to say. Looking back, it is hard to pinpoint exactly where things went wrong. What had begun inauspiciously fourteen years earlier as a run-of-the-mill occupational disease claim ended in August of 2008 as a paradigm-shifting upheaval in Connecticut's workers' compensation jurisprudence. Seemingly out of whole cloth, the Supreme Court instituted an apportionment scheme in workers' compensation claims for permanent partial disability benefits and opened the door to the apportionment of other types of benefits. When George Deschenes first filed his workers' comp claim in 1994, no one could have predicted that it would finally end in 2008 after two decisions from the workers' compensation commission,(fn1) a decision from the Compensation Review Board(fn2) and two decisions from the Connecticut Supreme Court.(fn3) However we ended up here, we now have to deal with the altered landscape. The lesson from Deschenes v. Transco is clear: Beware the "concurrent" non-occupational injury in occupational disease claims.

I. Case History

George Deschenes filed his own claim for workers' compensation benefits in 1994 after his doctor told him that he had an asbestos-related pulmonary injury caused by his many years working in the asbestos trades. In 1966 and 1967, Mr. Deschenes suffered his first occupational asbestos exposure while working for a plumbing and heating contractor.(fn4) In 1967 he joined Local 33 of the International Association of Heat and Frost Insulators and Asbestos Workers and began working as a union asbestos worker for what would become the first of many insulation contractors covering a period of almost thirty years.(fn5) He eventually retired on disability unrelated to his pulmonary condition in 1995.

Throughout his career as an asbestos worker, Mr. Deschenes had direct and indirect contact with the four most common forms of asbestos-containing insulation used during the 1960s and 1970s-asbestos block, asbestos pipe covering, asbestos cement and asbestos cloth.(fn6) All of these materials were common tools of the insulation trade up through the passage of the Occupational Safety and Health Act in 1972 and, subsequently, the first OSHA regulations in the 1970s that started to control the use of some types of asbestos-containing materials.(fn7) As the 1970s progressed, and as OSHA began regulating workplace exposures to asbestos, the use of new asbestos-containing thermal insulation products fell off precipitously as they were replaced with new products made of non-asbestos alternatives like fiberglass. By the 1980s, virtually all new asbestos-containing thermal insulation products had been replaced with non-asbestos alternatives, but Mr. Deschenes (and others like him) continued to have sometimes substantial exposure to old asbestos products that were still in place on his various jobs.(fn8)

Par for the course for union tradesmen, Mr. Deschenes was almost always working with other insulators on his jobs and sustained additional asbestos exposures as a result of his co-workers' work with those same asbestos products.(fn9) Smaller jobs had as few as two or three insulators working side-by-side (perhaps doing residential work or on small commercial jobs), while other jobs literally had dozens of insulators (large commercial and industrial jobs).(fn10) It is common for insulators from that generation to describe their working environment as a "snow storm" or a ^'blizzard" of asbestos dust resulting from the sawing, cutting, chipping, mixing and manipulation of various asbestos-containing insulation products. Mr. Deschenes chose the equally descriptive "dust bowl" when testifying in his own case.(fn11)

Mr. Deschenes was first diagnosed with asbestos-related lung disease in January of 1994 by his treating physician.(fn12) He was later found to have a twenty-five percent permanent partial impairment of each lung. This fact was confirmed in 1996 by Dr. Thomas Godar (the insurance companies' expert witness in the workers' compensation proceedings), in 1998 by Dr. Carrie Redlich (one of Mr. Deschenes' treating doctors at the Yale Occupational Medicine Clinic) and in 2002 by Dr. Mark Cullen (Mr. Deschenes' expert witness). These findings were also confirmed by the independent physician, Dr. Michael Conway, after his examination of Mr. Deschenes on behalf of the workers' compensation trial commissioner. In short, every doctor that had evaluated Mr. Deschenes found him to have a twenty-five percent permanent partial disability of both lungs.

By Finding and Award on August 13, 2003, the trial commissioner found that Mr. Deschenes suffered from a com-pensable occupational lung disease.(fn13) Issues regarding apportionment of liability among the various respondent-insurance companies, identification of the last employer on the risk, specific disability ratings and compensation rate remained open for later determination. After additional hearings and additional briefing, the trial commissioner issued another Finding and Award on May 12, 2005 affirming Mr. Deschenes' twenty-five percent permanent partial disability, awarding full benefits for that twenty-five percent disability and issuing final rulings on the outstanding issues.(fn14) The respondents appealed that decision to the Compensation Review Board ("CRB" or "Board"), which affirmed the trial commissioner's award.(fn15) The respondents then appealed to the Appellate Court and the Supreme Court took the appeal, sua sponte, after the submission of briefs but before oral argument at the Appellate Court.

The Supreme Court issued its first decision in November of 2007, reversing the Board and remanding the case for further proceedings at the trial commission.(fn16) The Court held that Mr. Deschenes' permanent partial disability benefits could be subject to apportionment between the non-occupational causes of his lung problems and the occupational causes of his lung problems since they appeared to be separate injuries that developed concurrently.(fn17) The Court reasoned that since Mr. Deschenes was found by the trial commissioner to be suffering from two separate, concurrently developing injuries (one smoking-related and the other asbestos-related) then his total resulting disability could be subject to apportionment, provided some reasonable basis for determining apportionment existed. The Court placed the burden of proof on the employer to show that the injuries were susceptible to apportionment and then, if they were, the employer would need to prove that the occupational injury did not influence or aggravate the non-occupational injury.

The Court's decision seemed deceptively simple and straightforward: Disability is subject to apportionment if the employer can prove that there were two separate, currently developing injuries and that the occupational injury did not aggravate the non-occupational injury. If the occupational injury aggravated the non-occupational injury, then liability would fall 100% on the employer, consistent with Court precedent. If the occupational injury did not aggravate the non-occupational injury, then liability could be apportioned. This deceptive simplicity, however, actually seems to have created a substantial shift from the Court's prior line of cases involving multi-injury claims.

Mr. Deschenes, with the invaluable assistance of several concerned amicus curae, filed a motion for reconsideration, which was granted by the Court and which resulted in a second opinion from the Court in early 2008.(fn18) The second opinion reaffirmed the Court's original decision but tweaked and tightened parts of the original decision in largely non-determinative areas.

II. A Shifting Paradigm? Life After Deschenes

With the release of its final decision in Deschenes, the Supreme Court seems to be shifting a paradigm in Connecticut workers' compensation jurisprudence. The Court permitted, for the first time, apportionment of workers' compensation benefits in cases where a claimant's occupational disease is caused by two components, one occupational and one non-occupational. In doing so, the Supreme Court departed from decades of well-established precedent and policy, tacitly rejecting both its own controlling precedent and the collective experience of the workers' compensation commission. The Supreme Court's approach in Deschenes has been repeatedly rejected by virtually all bodies empowered to decide workers' compensation cases or to set workers' compensation policy. This point is highlighted by the fact that the Supreme Court had to rely almost entirely on out-of-state authority to support its novel approach in Deschenes. Truly, it seems, a paradigm has shifted. Watch your step going forward.

A. The Supreme Court Should Have Upheld Decades of Its Own Precedent and Affirmed the Compensation Review Board and the Trial Commissioner.

The trial commissioner properly found that Mr. Deschenes suffered from an occupationally-related twenty-five percent permanent partial disability of each lung. The CRB then correctly affirmed the trial commissioner's Finding and Award as being supported by the factual record and consistent with the Board's precedent.(fn19) The Supreme Court should have done the same and should have reasserted its own precedent defining the limited nature of its review in workers' compensation claims.

1. The Supreme Court's Review of Workers' Compensation Claims is Limited.

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