In Sullins v United Parcel Service Inc., 5611 CRB -1-10-12 (January 6, 2012) a workers’compensation claimant had been previously diagnosed with a diabetic neuropathy, and subsequently he sustained compensable injuries to his bilateral upper extremities and bilateral hands. The treating physician offered deposition testimony that the claimant had suffered a 10% permanent partial functional impairment of each upper extremity based on his cubital tunnel injuries, including the neurolysis of his ulnar nerve, and a 10% impairment for each hand based on the carpal tunnel releases. He further stated that the claimant was entitled to an additional 20% attributable to the diabetic neuropathy, which was an independent nonoccupational disease.
The trial Commissioner, relying upon the Supreme Court’s holding in Deschenes, determined that the claimant’s permanent partial disability rating must be apportioned between a pre-existing non-compensable condition and his more recent compensable injury. The CRB upheld the trial Commissioner, reciting the holding in Deschenes wherein “apportionment of a permanent partial disability benefits is appropriate when a respondent employer is able to prove that: (1) a disability has resulted from a combination of two concurrently developing disease processes, one that is non-occupational, and the other that his work-related; and (2) the conditions of the claimant’s occupation have no influence on the development of the nonoccupational disease.
The CRB further provided that since there was no evidence that the claimant’s nonoccupational ailment caused a work related injury (as in the Blakeslee case, where the claimant’s epileptic seizure was the proximate cause behind his orthopedic injuries that he sustained when he was restrained) and further, there was no evidence that the work-related injury exacerbated the claimant’s nonoccupational ailment, the trial Commissioner was correct in apportioning the disability between the nonoccupational and occupational ailment. “If the two elements act independently to disable the claimant, we believe this is ‘the gap’ the Supreme Court intended the Deschenes case to address. “
This Sullins decision is troubling in several respects. CGS Sec. 31 – 349 provides in relevant part: “if an employee having a previous disability incurs a second disability from a second injury resulting in a permanent disability cause by both the previous disability in the second injury which is materially and substantially greater than the disability that would’ve resulted from the second injury alone, he shall receive compensation…” The statute seemingly embodied the concept that we take our claimant’s as we find them. The Deschenes decision provided an exception in the situation in which the claimant was suffering from an occupational disease, namely, asbestosis, as well as lung disease from cigarette smoking. The Deschenes decision was, for the most part, a name only uttered on the asbestos docket. It was widely thought to be limited to occupational disease cases. The Sullins case may represent a further incursion into the previously established law that we take our claimant’s as we find them.
Many of us have cases in which the claimant has a compensable back injury superimposed upon pre-existing degenerative disc disease. We also have compensable knee injuries superimposed upon pre-existing osteoarthritic disease. In light of the Sullins decision, we can now expect an apportionment argument by respondents’ counsel, who will argue these are separate, concurrent disease processes. The take away from this case (for claimants’ counsel) is that the treating physician will need to say that the compensable injury has exacerbated the pre-existing disease. Undoubtedly, respondents’ counsel will be coaching their RMEs to state that the compensable injury does not exacerbate pre-existing injury. Stay tuned.