Smokers beware. There is yet another reason to quit.
Employers recently scored a major victory when the Connecticut Supreme Court’s eight-justice panel ruled that an individual’s lifestyle choices can be taken into account when determining liability for a work-related illness.
Business advocates are applauding the court’s decision. Kia Murrell, assistant counsel for the Connecticut Business & Industry Association, said the ruling could affect hundreds or even thousands of cases in the future and that it will make Connecticut more attractive to companies as a place to do business.
“It will ensure that employers pay only what they are responsible for,” Murrell said.
But worker advocates disagree. “This sets a negative precedent for injured workers,” said Christopher Meisenkothen, an attorney who represented George Deschenes, the claimant in the case.
Deschenes, 63, formerly of Niantic, worked for 18 years as an insulator on a number of commercial construction sites for multiple employers. During that time, he was exposed to significant amounts of asbestos and in 1994, diagnosed with an asbestos-related lung disease that constricted his lungs and prevented him from working full time.
However, during the past 30 years, Deschenes also smoked one to two packs of cigarettes a day, causing him to develop emphysema.
Doctors agreed that Deschenes suffered a permanent partial disability of 25 percent in both lungs. But they disagreed about whether the smoking-related injury developed at the same time as the occupational disease and over the extent that the job-related exposure to asbestos contributed to his illness.
The disagreement has created a legal battleground for the past five to six years resulting with the state Workers’ Compensation Review Board ruling that Deschenes’ employers were responsible for covering the entire disability since the ‘‘work-related asbestos exposure was a substantial contributing factor to [the] injury.’’
But Deschenes’ former employers — the defendants in the case — disagreed and appealed the decision to the state Supreme Court arguing that the emphysema and asbestos-related exposure were two distinct diseases that developed at the same time. They also argued that the asbestos exposure was responsible for only about a quarter of the total disability.
In Connecticut, if a nonwork related illness preexists an occupational exposure and both contribute to a single disability, then the employer is liable for the entire claim.
Notably, prior to this case, there were no laws that determined liability if two illnesses developed at the same time to create a single disability.
The Supreme Court recognized that gap and ruled that workers’ compensation benefits can be reduced if an employee’s disability is partially attributed to a concurrently developing nonwork-related disease.
Hundreds Of Cases
The case is important, said Murrell, because it creates an avenue for employers to limit their liability in cases where the job-related and nonoccupational conditions develop at the same time to create a single impairment.
“You can’t force an employer to pay for the entire disability if it wasn’t all their fault,” Murrell said.
Lucas Strunk, an attorney in the case who represented two of Deschenes’ employers, agreed that the ruling “creates the potential for employers to limit their liability.”
Meisenkothen said he disagrees with the Supreme Court’s ruling and fears it will be applied to other cases that don’t involve smoke-related lung injuries, something he says shouldn’t happen.
