State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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Sutton v. Mercy Housing Shelter Corp.

CASE NO. 5085 CRB-1-06-5



APRIL 27, 2007











The claimant was represented by Kimberly A. Graham, Esq., Attorney at Law, LLC, 621 Farmington Avenue, 2nd Floor, Hartford, CT 06105.

The respondents were represented by Joseph J. Passaretti, Jr., Esq., Montstream & May, L.L.P., 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the April 24, 2006 Finding and Award of the Commissioner acting for the First District was heard October 20, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and James J. Metro.


JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the April 24, 2006 Finding and Award of the Commissioner acting for the First District. They argue that the commissioner erred by failing to reduce the claimant’s permanent partial disability award to account for the part of the impairment attributable to conditions that were unrelated to the compensable lung injury. We uphold the ruling of the trial commissioner on appeal.

The claimant began working as a soup kitchen supervisor for the employer in 1994. He sustained a compensable lung injury due to a mild allergic reaction to mold. Dr. Carpenter, an otolaryngologist, placed the claimant on medications after allergy testing showed multiple allergies to dust and mold, and opined that the claimant’s chronic symptoms of breathing trouble, headaches, tiredness, and chest congestion appeared to be environmentally related. The claimant stopped working for the employer in 2003. He has been diagnosed with coronary artery disease and underwent coronary bypass surgery.

Dr. Gerardi, a pulmonologist who was retained by the respondents, diagnosed the claimant with a respiratory impairment caused equally by work-related mold allergies and early chronic obstructive pulmonary disease (COPD). On August 11, 2004, he indicated that the claimant had reached maximum medical improvement with a 35% respiratory impairment of both lungs, attributing 5% to prior coronary artery disease, 15% to allergic disease, and 15% to COPD. The respondents contended that the claimant’s 22-year smoking habit has exacerbated his COPD and his coronary artery disease, which exacerbations are a separate and distinct concurrent disease process that is unrelated to his mild allergic reaction to mold spores.

The trial commissioner declined to reduce the claimant’s permanent partial disability award by the portion attributable to those factors, stating that the respondents presented no evidence that the claimant was compensated in the past for any percentage of that disability. He found that the compensable allergic disease of the lungs was a substantial and material factor in each lung’s permanency rating, and held § 31-275(1)(D) C.G.S.1 inapplicable. The respondents have appealed that decision to this board.

We begin by considering § 1-2z of the Connecticut General Statutes, a 2003 legislative enactment directing that statutes shall be construed according to a plain meaning rule. “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” The respondents assert that the meaning of § 31-275(1)(D) is unambiguous, and that it required a reduction of the claimant’s permanency award in this case. Their appeal focuses primarily on the argument that § 1-2z requires this board to interpret the statute according to its alleged plain meaning, which differs from the way it has been judicially interpreted in the past.

Our Supreme Court confirmed in Gartrell v. Dept. of Correction, 259 Conn. 29 (2002) that the phrase “aggravation of a preexisting disease” refers only to aggravation of preexisting occupational diseases.2 This interpretation of § 31-275(1)(D) dates back to the Court’s decision in Cashman v. McTernan School, Inc., 130 Conn. 401 (1943). The claimant in Gartrell had suffered exacerbation of his pre-existing post-traumatic stress disorder (PTSD), which was not an occupational disease. If applied, § 31-275(1)(D) would have limited the claimant’s compensation to the proportion of the PTSD-related disability that was attributable to the compensable injury. However, the Court held that benefits should not be reduced in light of the Cashman decision. The Court also commented that the 1993 reforms of the Workers’ Compensation Act may cast doubt on the viability of Cashman, but as the parties had not briefed that issue, the Court declined to address it. The respondents now contend that § 1-2z releases this board from having to apply the principle of stare decisis by following the holding of Gartrell.

First, we disagree that, by applying § 1-2z, we are left with language in § 31-275(1)(D) that is plain and unambiguous. Section 1-2z directs that a statute’s meaning be ascertained “from the text of the statute itself and its relationship to other statutes.” This does not mean that § 31-275(1)(D) be read independently from the rest of the Workers’ Compensation Act. See Vincent v. New Haven, 4919 CRB-3-05-1 (January 13, 2006) (relationship between statutes is criterion listed in § 1-2z). Section 31-275(1)(D) is a subdivision of § 31-275(1), which defines “arising out of and in the course of employment” to mean “an accidental injury happening to an employee or an occupational disease of an employee originating while the employee has been engaged in the line of the employee’s duty in the business or affairs of the employer . . . provided: . . . (D) For aggravation of a preexisting disease, compensation shall be allowed only for that proportion of the disability or death due to the aggravation of the preexisting disease as may be reasonably attributed to the injury upon which the claim is based.” Given that this definition sets out two categories of compensable events—accidental injuries and occupational diseases—and then refers to aggravation of a “preexisting disease,” it is plausible that the term “disease” could either refer back to “occupational disease,” or refer more broadly to any disease.

We also take note of § 31-349, which like § 31-275(1)(D) addresses the effect of compensable injuries on preexisting conditions. Under § 31-349, if an employee who has suffered a previous disability incurs a second disability from a second injury that results in a permanent disability which is materially and substantially greater than that which would have resulted from the second injury alone, the employee is entitled to receive necessary medical care and compensation for the entire amount of disability, “less any compensation payable or paid with respect to the previous disability.” Thus, a claimant whose second injury aggravates a previous disability is entitled to compensation for the full resulting permanency, reduced only by amounts of compensation that have been paid as a result of the prior disability. Second injury compensation is not reduced if the previous disability has not resulted from an occupational injury.

The reading of § 31-275(1)(D) advocated by the respondents for situations involving preexisting diseases runs counter to the general approach taken by § 31-349 for previous disabilities. We note, too, that § 31-349 was added to the law more recently than the language in § 31-275(1)(D), so there is no basis to infer that the legislature enacted § 31-275(1)(D) in order to carve out an exception for preexisting diseases from a broader legislative policy on second injury compensation. Based on these considerations, we do not believe that § 31-275(1)(D) has a “plain and unambiguous” meaning inferable from the statutory text and its relationship to other statutes.

Second, we are not persuaded that § 1-2z requires judicial authorities to ignore the principle of stare decisis wherever caselaw appears to conflict with statutory language. In Vincent, supra, we noted that six years of legislative inaction in response to a decision by this board that involved statutory interpretation counseled against our overturning that ruling in reaction to § 1-2z. Here, the challenged reading of § 31-275(1)(D) has been in effect for over 60 years. Relevant legislation and precedent both guide the process of statutory interpretation, and our Supreme Court continues to look toward its own prior interpretations of statutes before it attempts to define their meaning anew. Southern New England Telephone Co. v. Dept. of Public Utility Control, 274 Conn. 119, 127 (2005)(Court analyzed meaning of term “unreasonable profits” in § 16-8b C.G.S. only after determining it had not previously interpreted the statute); Bugryn v. State, 97 Conn. App. 324, 328 (2006)(Appellate Court interpreted § 31-275(9)(A)(i)). Where the construction of a statute has been subjected to past judicial scrutiny—especially scrutiny by a higher court—the judicial decisionmaker should not disregard that precedent lightly. Section 1-2z provides guidance for interpreting statutes “in the first instance;” it does not address the reinterpretation of statutes whose meaning has already been determined.

The respondents also argue that the claimant’s smoking-related COPD and coronary artery disease, in addition to being separate and distinct injuries from the claimant’s compensable mold allergy, are concurrent disease processes rather than pre-existing conditions. They contend (a) that the Act does not compensate the non-work-related disease processes caused by smoking, and (b) that the trial commissioner failed to address this issue in his findings, despite support in the evidence establishing that the claimant’s ongoing smoking habit constitutes a still-worsening condition, while his exposure to mold at the workplace has ceased. The respondents raised this argument at the formal hearing; see November 15, 2005 Transcript, p. 8; and it was brought forth in their proposed findings. The trier acknowledged this contention in ¶ 8 of his Findings, but did not address it in his legal conclusions.

The trier found that the claimant was entitled to 35% permanency of the lungs based on Dr. Gerardi’s August 11, 2004 report. Claimant’s Exhibit C. In June 2003, Dr. Gerardi had stated that the claimant appeared to have COPD, and had also endured extensive exposure to mold in a confined workplace, which at minimum had caused an aggravation due to his underlying COPD, but more likely had revealed a mold allergy. Claimant’s Exhibit B. The claimant had not yet reached maximum medical improvement, but Dr. Gerardi identified a respiratory impairment that he estimated at 30% for both lungs, due equally to the mold exposure and early COPD. In the August 11, 2004 report, Dr. Gerardi stated that the claimant’s situation had “changed little” since June 2003. Claimant’s Exhibit C. He stated that the claimant’s respiratory status “has not deteriorated substantially in the past year but he does have some complaints of dyspnea and we see evidence of obstructive lung disease on physical examination and particular pulmonary function study. This disease will only worsen over time with continued smoking, as will his coronary artery disease . . . .” Id. Dr. Gerardi then confirmed that the claimant had reached maximum improvement with a 35% impairment of both lungs, with 5% related to a restriction from his prior coronary artery disease, 15% to COPD, and 15% to allergic disease.

Based on these findings, we do not believe it was necessary for the trier to address the “concurrent disease process” argument in his legal conclusions. Although medical evidence shows that the claimant is at risk for further deterioration if he continues to smoke, his 35% permanent partial disability rating is not based on a progression of his condition after workplace mold exposure ceased to occur. This board’s decision in Deschenes v. Transco, Inc., 4943 CRB-8-05-5 (May 22, 2006), thus appears to be on point, resolving the issue in the claimant’s favor.

In Deschenes, the claimant sustained a 25% impairment to each lung from a combination of lung disease caused by asbestos exposure at work, and emphysema resulting from a long history of cigarette smoking. Several of the respondents unsuccessfully argued at trial that permanency benefits should be reduced to 5.625% in light of the claimant’s smoking history, based on their contention that the effects of the two lung injuries were divisible, and the claimant’s emphysema was an independent, concurrent, and still-progressive condition. We held that there was medical evidence explaining that the claimant’s decrease in diffusion capacity was likely due to both emphysema and asbestos-related effects, which the trier was entitled to credit. We then stated that “there is no legal remedy that allows [the respondents] to avoid liability for whatever portion of the claimant’s lung impairment might be traceable to non-work-related emphysema, insofar as it was one of two conditions that combined to cause a single impairment.” Id. The effects of the claimant’s former smoking on lung impairment were legally distinguishable from any potential effects of future smoking, which question was not before the board. We also relied on Strong v. UTC/Pratt & Whitney, 4563 CRB-1-02-8 (August 25, 2003), where we had held that a claimant with a 32% lung reduction due to work-related asbestosis and a 16% reduction due to pre-existing emphysema caused by cigarette smoking was entitled to be compensated for the full 48% permanent partial impairment.

Currently, our decision in Deschenes is before the Supreme Court on appeal. We believe the legal basis of Deschenes and Strong to be correct. We therefore follow that reasoning here, which is consistent with the trial commissioner’s factual findings and legal conclusions.

The trial commissioner’s decision is hereby affirmed. Insofar as benefits may have remained unpaid pending appeal, interest is awarded as required by § 31-301c(b).

Commissioners Donald H. Doyle, Jr., and James J. Metro concur.

1 Section 31-275(1)(D) states, “For aggravation of a preexisting disease, compensation shall be allowed only for that proportion of the disability or death due to the aggravation of the preexisting disease as may be reasonably attributed to the injury upon which the claim is based.” BACK TO TEXT

2 In its original Gartrell decision, the Court held that § 31-275(1)(D) required that the claimant’s award be limited to benefits payable for the proportion of his disability that was attributable to aggravation by his work-related cardiovascular disorder. Gartrell v. Dept. of Correction, 258 Conn. 137, 152-53 (2001). The claimant had conceded at oral argument before the Court that such a limitation applied, and the Court undertook only a brief discussion of the matter. However, the Court granted the claimant’s motion for reconsideration and allowed the claimant to rescind his concession in light of its prior holding in Cashman v. McTernan School, 130 Conn. 401 (1943), which renders the statute inapplicable to preexisting conditions that are not occupational diseases. BACK TO TEXT

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