JOHN W. SULLINS v. UNITED PARCEL SERVICE, INC., et al., SC 19226

 Compensation Review Board

 

      Workers' Compensation; Whether Plaintiff, Who Suffers From Both an Occupational and a Nonoccupational Disability to His Arms and Hands, Should be Compensated Only for Portion of Disability Caused by Work Related Injuries; Whether Disabilities Caused by Concurrently Developing Disease Processes.  The plaintiff worked for defendant United Parcel Service, Inc., unloading trucks and sorting small parts, for approximately thirty-two years.  He was diagnosed with diabetes in 1987 and with diabetic neuropathy in 1998; the neuropathy caused impairment to his arms and hands.  In 2003, the plaintiff injured his arms and hands in a work related accident.  A physician assigned a disability rating of 44 percent permanent partial impairment to the plaintiff’s arms and 40 percent permanent partial impairment to his hands and attributed 10 percent of each impairment to the work related injuries.  The Workers' Compensation Commissioner determined that Deschenes v. Transco, Inc., 288 Conn. 303 (2008), dictated that the plaintiff’s disability benefits be apportioned or reduced such that the defendant should pay only for the 10 percent of each disability attributed to the occupational injuries.  In Deschenes, the Supreme Court held that apportionment of permanent partial disability benefits is appropriate where an employer can prove that: (1) a disability is caused by two concurrently developing disease processes, one that is occupational and one that is nonoccupational; and (2) the conditions of the claimant's occupation have no influence on the development of the nonoccupational disease.  The plaintiff appealed to the Compensation Review Board, arguing that his neuropathy was a preexisting disability under General Statutes § 31-349 (a), which provides that if an employee with a preexisting disability sustains a second injury that results in a disability materially greater than that caused by the second injury alone, he is entitled to compensation for the entire amount of the disability.  The board rejected the plaintiff's argument and affirmed the commissioner’s decision.  The Appellate Court (146 Conn. App. 154) reversed, concluding that the evidence showed that the impairment caused by the neuropathy was a previous disability that could not also have been a concurrently developing disease process as required for Deschenes to apply and justify apportionment.  It stated that the two diseases did not develop concurrently as it was undisputed that the plaintiff’s diabetic neuropathy and the resulting impairment to his hands and arms existed five years before his second, work related injury.  The Appellate Court refused to read Deschenes as holding that any previous disability that would normally be compensable under § 31-349 (a), but which worsens or continues to develop at the same time that a work related disability develops, is exempt from compensation.  In this appeal, the Supreme Court will decide whether the Appellate Court properly interpreted Deschenes in reversing the board's decision upholding the commissioner’s determination that the plaintiff should only be compensated for permanent partial disability that was caused by his work related injury.