## Facts

- George Deschenes worked for many years as a union insulator on commercial construction sites for multiple employers.
- During that work (1967–1985), Deschenes was exposed to significant amounts of asbestos; his last asbestos exposure occurred in 1985 while employed by Transco, Inc.
- Deschenes also had a long cigarette-smoking history and, after a heart attack in 1991, was diagnosed with smoking-related emphysema.
- By 1994, Deschenes was diagnosed with asbestos-related pleural lung disease and was unable to work.
- Deschenes sought workers’ compensation benefits for lung impairment.
- An initial workers’ compensation commissioner found that Deschenes had two lung injuries: one due to occupational asbestos exposure and one due to nonoccupational cigarette smoking.
- The commissioner ordered an independent medical examination, and after a later hearing before another commissioner, that commissioner found Deschenes had sustained a 25% permanent partial disability to each lung attributable to the asbestos-related injury.
- Medical evidence conflicted on causation: some testimony attributed Deschenes’s disability primarily to asbestos-related disease, while other testimony attributed it primarily to smoking-related emphysema.
- The commissioner nevertheless found that the occupational asbestos exposure was a substantial contributing factor to the injury and its permanency and ordered Deschenes’s former employers to pay permanent partial disability benefits, apportioned among them based on the length of exposure with each employer.
- The Compensation Review Board affirmed, concluding that the smoking-related emphysema need not be treated as a separate injury for apportionment purposes because, in workers’ compensation, the employer takes the employee as it finds him.
- Reed and Greenwood Insulation Company and AC & S, Inc. appealed to the Connecticut Supreme Court.

## Issues

1. Whether workers’ compensation benefits for a 25% permanent partial disability to each lung, caused in part by work-related asbestos exposure, must or may be apportioned or reduced by the amount of disability attributable to a concurrently developing nonoccupational disease (smoking-related emphysema).
2. What an employer must prove to obtain apportionment or reduction of permanent partial disability benefits based on a concurrently developing nonoccupational disease.

## Decision

- The Connecticut Supreme Court reversed the Compensation Review Board’s decision.
- The Court held that apportionment (or reduction) of permanent partial disability benefits may be appropriate when disability results from the combination of a work-related disease process and a concurrently developing nonoccupational disease process, but only if the employer proves the required predicates for apportionment.
- The Court remanded for further proceedings because additional factual findings were required to determine whether the predicates for apportionment were satisfied on the record.

## Legal Principles

- Apportionment of permanent partial disability benefits may be allowed when an employer proves both of the following:
  - the claimant’s disability resulted from the combination of two concurrently developing disease processes, one nonoccupational and one work-related; and
  - the conditions of the claimant’s occupation had no influence on the development of the nonoccupational disease.
- The employer bears the burden of proof on apportionment when it seeks to limit liability by attributing part of the claimant’s permanent partial disability to a nonwork disease.
- The principle that an employer takes the employee as it finds him does not automatically bar apportionment where there are separate, concurrently developing disease processes and the nonoccupational disease developed independently of the employment.
- The fact-finder must make specific findings that separate (to the extent supported by the evidence) the work-related contribution to permanency from the nonwork contribution, rather than treating all permanent impairment as fully compensable merely because work was a substantial contributing factor to some part of the condition.
- Connecticut workers’ compensation law distinguishes between:
  - cases where a preexisting condition is aggravated or accelerated by employment (often supporting full liability if work is a substantial contributing factor), and
  - cases involving a distinct, concurrently developing nonoccupational disease that is not affected by employment (where apportionment may be available if proven).
- When findings do not address whether occupational conditions influenced the nonoccupational disease process, remand is proper so the commissioner can apply the correct apportionment framework.

## Conclusion

The Connecticut Supreme Court held that permanent partial disability benefits for lung impairment may be apportioned between asbestos-related disease and smoking-related emphysema if the employer proves (1) the disability results from two concurrently developing disease processes, one occupational and one nonoccupational, and (2) workplace conditions did not influence the nonoccupational disease; because the existing findings did not resolve these points, the Court reversed and remanded for further factual findings and proceedings.


Deschenes v. Transco, Inc., 284 Conn. 479, 935 A.2d 625 (2007)