Smoking Reduces Workers Comp Award in Asbestos Case

For 23 years, George Deschenes worked as an insulation installer, where he was regularly exposed to asbestos. His lungs took a double hit because Deschenes also smoked up to two packs of cigarettes a day for more than 20 years. In 1994, he was diagnosed with asbestos-related pleural lung disease. Unable to work full time, he filed a workers compensation claim against three former employers: Reed and Greenwood Insulation Co., AC&S Inc. and Transco Inc.

The Connecticut Compensation Review Board gave him a permanent partial disability award, finding that he had lost 25 percent of his lung function. But two of the former employers--Reed and Greenwood and AC&S--appealed to the Connecticut Supreme Court, contending that his workers comp award should be reduced because his lungs also had been damaged by smoking-related emphysema. They cited testimony from one doctor who found that three-quarters of his disability was caused by smoking and only one-quarter by asbestos exposure.

The Connecticut Supreme Court set a precedent in the 2nd Circuit Aug. 12, saying the award should be reduced by the amount of damage found to have been caused by smoking-related emphysema.

In Deschenes v. Transco Inc., Justice Flemming L. Norcott Jr. concluded that proportional reduction of permanent partial disability benefits is appropriate when an employer can prove that a disability has resulted from the combination of two concurrently developing disease processes--one nonoccupational and the other occupational--and the conditions of the claimant's occupation have no influence on the development of the nonoccupational disease. The Supreme Court sent the case back to the compensation review board to determine the proper award.

The Connecticut Supreme Court followed the North Carolina Supreme Court's ruling in Morrison v. Burlington Industries that said its state Workers Compensation Act requires compensation only for the portion of the disability caused by the occupational disease.

"The Deschenes opinion is hugely important because in-house counsel can argue that a plaintiff's award should be reduced based on this defense," says Thomas Anapol, a shareholder at Anapol Schwartz.

Pre-existing Problems

A fundamental principle of workers compensation is that when an employer hires someone, he takes the employee as he finds him, with any pre-existing conditions. The question is whether the Workers Compensation Act requires the apportionment of benefits when two separate but concurrently developing medical conditions, only one of which is work-related, cause a disability.

In most cases, a disability is pre-existing and would not be affected by this decision, says Lucas D. Strunk, a partner at Pomeranz Drayton & Stabnick. Strunk represented the defendants. But in situations where it's unclear, he says, "Deschenes provides a ray of hope for employers ... to separate out the nonoccupational impairment."

Deschenes only discusses permanent partial disability claims, not total disability or other issues covered by workers compensation. But asbestos cases often involve smokers, so it could have a larger effect in that particular area, Strunk says.

But Nathan J. Shafner, of Embry & Neusner, argued in an amicus brief for the New England Health Care Employees Union that the North Carolina case the Connecticut Supreme Court cited as supporting its decision has essentially been overturned.

In the brief, he said North Carolina has severely limited, if not overruled, Morrison, citing Rutledge v. Tutlex Corp., from the North Carolina Supreme Court, and Cox v. City of Winston-Salem, from the state appeals court.

And while Deschenes is in line with Morrison, it goes against a California Supreme Court ruling in Pullman Kellogg v. Workers Compensation Appeals Board (see "Appropriate Apportionment"). In that case, the court found that if one of the conditions affecting an employee is caused by a work-related injury, then the employee is entitled to full workers compensation benefits.

The Connecticut state legislature--which normally controls workers compensation policy--should have dealt with this issue, not the courts, Shafner says. "The court took it upon [itself] to come up with this standard, and I thought that was a very dangerous practice to do."

Some observers, he adds, equate the decision to an anti-smoking rule in an industry where smoking is particularly prevalent.


Doctors' Decisions

Some experts expect the opinion in Deschenes will lead to more instances of defendants asking doctors whether a work-related injury or a nonwork-related cause led to damage.

"Deschenes is critical because courts are going to interpret the facts of each case differently and decisions are going to arise on a case-by-case basis," Anapol says.

Also, in-house lawyers may face the argument emphasized in Kellogg, in which the court determined that it is possible the asbestos injury aggravated or accelerated the emphysema--reason not to reduce the plaintiff's compensation.

The ruling in Deschenes is not outside of the bounds of fairness, says Anapol. "There is no right or wrong here. These cases are going to be decided on whether a company can prove that it's only responsible for a specific amount of work-related injury caused to an employee who suffers from nonwork-related injuries as well."

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