Sullins v. United Parcel Service, Inc. (Dissent)
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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** SULLINS v. UNITED PARCEL SERVICE DISSENT ROBINSON, J., dissenting. Because I believe that the record in the present case supports the conclusion of the Workers Compensation Commissioner (commissioner) and the Workers Compensation Review Board (board), that the plaintiff suffered from disabilities to his hands and arms caused by two independent and concurrently developing disease processes and, thus, that apportionment in accordance with the holding in Deschenes v. Transco, Inc., 288 Conn. 303, 306, 953 A.2d 13 (2008), was appropriate, I would affirm the decision of the board. Accordingly, I respectfully dissent from the majority s decision to reverse the decision of the board. The majority opinion adequately sets forth the relevant facts, procedural history, and standard of review. At the heart of the majority s decision to reverse the board is a determination that, because the plaintiff s diabetic neuropathy and resulting impairment to his hands and arms began to develop five years before his occupational injury to those same extremities, the neuropathy legally can be viewed only as a previous disability as that term is used in General Statutes ยง 31149, and that the two conditions could not properly be found to be concurrently developing as is required in order to bring the claimant s disability under the Deschenes holding. I disagree. As set forth in the majority opinion, our Supreme Court stated in Deschenes that apportionment or reduction of permanent partial disability benefits is appropriate only in those cases wherein different diseases, one of which is occupational in nature, have combined to cause, in effect, two different disabilities, even if they ultimately affect the same bodily part or function. Id., 322 23. The court concluded that an employer that sought apportionment or proportional reduction of permanent partial disability benefits therefore had the burden to prove that (1) a disability has resulted from the combination of two concurrently developing disease processes, one that is nonoccupational, and the other that is occupational in nature; and (2) the conditions of the claimant s occupation have no influence on the development of the nonoccupational disease. Id., 321. As noted by the board, the commissioner made factual findings on the basis of Dr. Richard Linburg s testimony that the plaintiff s disability resulted from a combination of two separate and distinct yet concurrent disease processes affecting his arms and hands diabetic neuropathy and occupational carpal and cubital tunnel injuries and that the occupational injuries did not affect the development of or worsen the effects of the diabetic neuropathy. Those facts would appear to be all that is necessary to bring this matter within the rule established in Deschenes. There was no finding made that the diabetic neuropathy was a previous disability or that the diabetic neuropathy had stopped progressing at any time prior to the development of the occupational injuries. I can discern nothing from the Deschenes opinion suggesting that, as a matter of law, disease processes that begin their development at different times cannot be found to be concurrently developing disease processes when disease development overlaps. On the basis of the record before us, I believe that the conclusions drawn by the commissioner from the facts found did not result either from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. The decision of the board, therefore, should be affirmed. Accordingly, I respectfully dissent.
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