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JOHN W. SULLINS v. UNITED PARCEL
SERVICE, INC., ET AL.
(SC 19226)
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Vertefeuille, Js.
Argued October 30, 2014—officially released February 17, 2015
Nancy S. Rosenbaum, for the appellants
(defendants).
Robert F. Carter, with whom was Nancy L. Meyer,
for the appellee (plaintiff).
Opinion
EVELEIGH, J. The issue in this certified appeal is
whether a disability arising from a progressive nonoccu-
pational condition that manifests prior to an occupa-
tional injury that further disables the same body part is
a compensable preexisting injury or a noncompensable
concurrently developing disease under the apportion-
ment rule set forth in Deschenes v. Transco, Inc., 288
Conn. 303, 953 A.2d 13 (2008). The defendants, United
Parcel Service, Inc. (UPS), and its insurer, Liberty
Mutual Insurance Company, appeal from the judgment
of the Appellate Court in favor of the plaintiff, John W.
Sullins, concluding that the defendants should pay the
entirety of the plaintiff’s permanent partial disability to
his upper extremities and hands, instead of appor-
tioning the payment so that the defendants pay only for
the proportion of disability attributed to the plaintiff’s
occupational injuries, as the Workers’ Compensation
Review Board (board) and the Workers’ Compensation
Commissioner for the First District (commissioner) had
determined. On appeal, the defendants claim that the
Appellate Court improperly determined that Deschenes
is inapplicable to the facts of the present case and,
accordingly, incorrectly concluded that apportionment
is not required. We affirm the judgment of the Appel-
late Court.
The opinion of the Appellate Court sets forth the
following relevant facts and procedural history. ‘‘The
plaintiff worked for UPS, unloading trucks and sorting
small parts, for approximately thirty-two years. The
plaintiff was diagnosed with diabetes in 1987 and with
diabetic neuropathy in 1998. The diabetic neuropathy
caused impairment to his arms and hands, including
weakness and tingling in the plaintiff’s hands as well
as difficulty in grasping things. On March 5, 2003, the
plaintiff suffered injuries to his upper arms and hands
as the result of a work related accident. He received
medical treatment, including surgeries, and returned to
his job duties without restrictions until he retired in
2008. By agreement of the parties, after his original
treating physician retired, the plaintiff was examined
by Richard Linburg, an arthroscopic hand surgeon, on
January 5, 2010. In his report of January 5, 2010, Linburg
assigned a disability rating of 44 percent permanent
partial impairment to the plaintiff’s bilateral upper
extremities (arms) and 40 percent permanent partial
impairment to the plaintiff’s hands. These ratings were
not in dispute. Linburg attributed 10 percent of the
44 percent impairment of the plaintiff’s arms to work
related cubital tunnel syndrome and the surgery used
to treat it, and 10 percent of the 40 percent impairment
of his hands to work related carpal tunnel syndrome
and the surgery used to treat it. Linburg also opined
that the plaintiff’s occupation and work activities had no
influence on the development of the nonoccupational
disease to his arms and hands.
‘‘The plaintiff’s claim for benefits pursuant to the
Workers’ Compensation Act (act), General Statutes
§ 31-275 et seq., was heard on July 13, 2010, during a
formal hearing before the commissioner. The commis-
sioner heard oral argument on July 21, 2010, and issued
his finding and award on December 7, 2010. The com-
missioner found that: (1) ‘[t]he [plaintiff’s] diabetic neu-
ropathy is an independent and nonoccupational
developing disease process affecting his arms and
hands’; (2) ‘[t]he [plaintiff’s] occupation/work activities
had no influence in the development of the nonoccupa-
tional disease to his arms and hands’; and (3) ‘[a]s a
result, and pursuant to Deschenes . . . the [plaintiff]
is entitled to receive 10 [percent] permanent partial
disability benefits to his bilateral upper extremities and
10 [percent] permanent partial disability benefits to his
bilateral hands, less credits for permanency benefits
previously paid on these body parts.’ The commissioner
issued an order consistent with that finding.
‘‘The plaintiff then filed a motion to correct the com-
missioner’s findings, seeking an order that the disability
not be apportioned and, among other corrections, that
the commissioner strike subparagraph (K), which
referred to the plaintiff’s permanent disability resulting
from ‘a combination of two concurrent disease pro-
cesses, one of which is nonoccupational, the diabetic
neuropathy’ and subparagraph (R), which read: ‘The
[plaintiff’s] diabetic neuropathy is an independent and
nonoccupational developing disease process affecting
his arms and hands.’ In place of subparagraph (R), the
plaintiff sought to have the commissioner substitute
the following: ‘The [plaintiff’s] diabetic neuropathy is
a [preexisting] condition pursuant to [General Statutes]
§ 31-349 (a).’1 The commissioner denied the motion in
its entirety. The plaintiff then appealed the commission-
er’s decision to the board.
‘‘The board concluded that the facts found by the
commissioner were similar to those found in Deschenes,
and that, because Deschenes also applied to previous
disabilities, § 31-349 (a) did not apply. Accordingly, the
board affirmed the commissioner’s decision.’’ (Foot-
notes altered.) Sullins v. United Parcel Service, Inc.,
146 Conn. App. 154, 156–59, 77 A.3d 196 (2013). Addi-
tional facts will be set forth as necessary.
The plaintiff appealed to the Appellate Court, claim-
ing that ‘‘(1) the board incorrectly applied the holding
in Deschenes to the facts of this case, (2) the board
improperly upheld the commissioner’s award because
he failed to find that the plaintiff’s diabetic neuropathy
was a previous disability under § 31-349, (3) the defen-
dants failed to prove, as required by Deschenes, that the
plaintiff’s diabetic neuropathy and work related cubital
tunnel and carpal tunnel conditions were ‘concurrently
developing,’ and (4) the board improperly upheld the
commissioner’s award even though he failed to make
findings of fact necessary to apply the Deschenes rule.’’
Id., 159.
A majority of the Appellate Court panel agreed with
the plaintiff that ‘‘uncontroverted evidence in the
record, as well as the commissioner’s own findings,
show that the impairment caused by the plaintiff’s dia-
betic neuropathy was a previous disability, and because
it was, it could not have also been a concurrently devel-
oping disease process.’’2 Id., 161. Accordingly, the
Appellate Court concluded that ‘‘the plaintiff’s perma-
nent disability met the standard in . . . § 31-349, and
therefore, may not be apportioned. The board, there-
fore, incorrectly concluded that the circumstances fell
within the narrow statutory gap that [was] filled . . .
in Deschenes.’’ (Footnote omitted.) Id., 166.
The defendants petitioned for certification to appeal
from the judgment of the Appellate Court. This court
granted the defendants’ petition for certification to
appeal limited to the following issue: ‘‘Did the Appellate
Court properly apply Deschenes v. Transco, Inc., [supra,
288 Conn. 303], and thus properly reverse the [board’s]
decision upholding the [commissioner’s] determination
that the [plaintiff] should only be compensated for per-
manent partial disability that was caused by his work
related injury?’’ Sullins v. United Parcel Service, Inc.,
310 Conn. 943, 79 A.3d 894 (2013).
On appeal to this court, the defendants assert that
the Appellate Court improperly applied Deschenes to
the facts of this case and improperly concluded that
the plaintiff’s permanent disability met the standard in
§ 31-349 (a) and, therefore, may not be apportioned. In
response, the plaintiff claims that the Appellate Court
properly concluded that the plaintiff was entitled to
compensation for the entire disability of each of his
upper extremities under § 31-349 (a) because the undis-
puted evidence demonstrated that the plaintiff’s preex-
isting disability of his upper extremities caused by
diabetic neuropathy, when combined with the disability
caused by the subsequent compensable accidental
injury to his upper extremities at work in 2003, caused
a disability that was materially and substantially greater
than the disability that would have resulted from the
work related injury alone. We agree with the plaintiff
and, accordingly, affirm the judgment of the Appel-
late Court.
‘‘As a threshold matter, we set forth the standard of
review applicable to workers’ compensation appeals.
The principles that govern our standard of review in
workers’ compensation appeals are well established.
The conclusions drawn by [the commissioner] from
the facts found must stand unless they result from an
incorrect application of the law to the subordinate facts
or from an inference illegally or unreasonably drawn
from them.’’ (Internal quotation marks omitted.) Stec
v. Raymark Industries, Inc., 299 Conn. 346, 355, 10
A.3d 1 (2010). ‘‘[Moreover, it] is well established that
[a]lthough not dispositive, we accord great weight to
the construction given to the workers’ compensation
statutes by the commissioner and review board. . . .
Cases that present pure questions of law, however,
invoke a broader standard of review than is ordinarily
involved in deciding whether, in light of the evidence,
the agency has acted unreasonably, arbitrarily, illegally
or in abuse of its discretion. . . . We have determined,
therefore, that the traditional deference accorded to an
agency’s interpretation of a statutory term is unwar-
ranted when the construction of a statute . . . has not
previously been subjected to judicial scrutiny [or to]
. . . a governmental agency’s time-tested interpreta-
tion . . . . Chambers v. Electric Boat Corp., 283 Conn.
840, 844, 930 A.2d 653 (2007).’’ (Internal quotation marks
omitted.) Ferraro v. Ridgefield European Motors, Inc.,
313 Conn. 735, 746, 99 A.3d 1114 (2014).
Furthermore, ‘‘[i]t is well established that, in resolv-
ing issues of statutory construction under the act, we
are mindful that the act indisputably is a remedial stat-
ute that should be construed generously to accomplish
its purpose. . . . The humanitarian and remedial pur-
poses of the act counsel against an overly narrow con-
struction that unduly limits eligibility for workers’
compensation. . . . Accordingly, [i]n construing work-
ers’ compensation law, we must resolve statutory ambi-
guities or lacunae in a manner that will further the
remedial purpose of the act. . . . [T]he purposes of
the act itself are best served by allowing the remedial
legislation a reasonable sphere of operation considering
those purposes.’’ (Internal quotation marks omitted.)
DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., 294 Conn.
132, 150, 982 A.2d 157 (2009).
The present appeal requires us to determine whether,
on the basis of the facts found by the commissioner,
the plaintiff’s claim falls within the ambit of § 31-349
(a), as the plaintiff asserts and the Appellate Court
concluded, or whether it falls within the ‘‘statutory gap’’
addressed in Deschenes v. Transco, Inc., supra, 288
Conn. 314, as the defendants assert and the commis-
sioner and board concluded. In order to resolve this
question, we must examine the history and purpose of
the act as it relates to preexisting disabilities, the plain
language of § 31-349 (a), and this court’s prior decisions
addressing preexisting conditions, including Deschenes.
We consider each of these in turn.
A ‘‘fundamental principal of workers’ compensation,
present since the beginning, is that the employer takes
the employee in whatever physical condition, with
whatever predispositions and susceptibilities the
employee may bear prior to his injury.’’ R. Carter et al.,
19 Connecticut Practice Series: Workers’ Compensation
Law (2008) § 1:6, p. 13. In Hartz v. Hartford Faience
Co., 90 Conn. 539, 543, 97 A. 1020 (1916), this court
explained that, ‘‘[b]y the terms of [the act], compensa-
tion is not made to depend upon the condition of health
of the employee, or upon his freedom from liability
to injury through a constitutional weakness or latent
tendency. It is awarded for a personal injury ‘arising
out of and in the course of his employment,’ and for
an injury which is a hazard of that employment.’’ This
court further explained that, ‘‘[w]hen the exertion of
the employment acts upon the weakened condition of
the body of the employee, or upon an employee predis-
posed to suffer injury, in such way that a personal
injury results, the injury must be said to arise out of
the employment. An employee may be suffering from
heart disease, aneurism, hernia . . . or other ailment,
and the exertion of the employment may develop his
condition in such a manner that it becomes a personal
injury. The employee is then entitled to recover for all
the consequences attributable to the injury. The acceler-
ation or aggravation of a [preexisting] ailment may
therefore be a personal injury within [the] [a]ct; and
the test may well be . . . [d]id the ailment develop the
injury, or did the employment develop it in any material
degree? If it did, the injury arose out of the employ-
ment.’’ (Citation omitted.) Id., 543–44.
‘‘[T]he employer is responsible for all the conse-
quences of the compensable injury, even though the
consequences of the injury may be greater to the injured
employee than it would have been had the employee
been a normal person. If an employee has a thin skull,
and suffers more extensively from a blow to his head
than a person with a normal skull would have suffered,
nevertheless his condition is covered for medical treat-
ment and disability benefits commensurate with his
actual damage.’’ 19 R. Carter et al., supra, § 1:6, p. 14;
see also Savage v. St. Aeden’s Church, 122 Conn. 343,
347, 189 A. 599 (1937).
This fundamental principle is reflected in the plain
language of § 31-349 (a), which provides as follows:
‘‘The fact that an employee has suffered a previous
disability, shall not preclude him from compensation for
a second injury, nor preclude compensation for death
resulting from the second injury. If an employee having
a previous disability incurs a second disability from
a second injury resulting in a permanent disability
caused by both the previous disability and the second
injury which is materially and substantially greater
than the disability that would have resulted from the
second injury alone, he shall receive compensation
for (1) the entire amount of disability, including total
disability, less any compensation payable or paid with
respect to the previous disability, and (2) necessary
medical care, as provided in this chapter, notwithstand-
ing the fact that part of the disability was due to a
previous disability. For purposes of this subsection,
‘compensation payable or paid with respect to the previ-
ous disability’ includes compensation payable or paid
pursuant to the provisions of this chapter, as well as
any other compensation payable or paid in connection
with the previous disability, regardless of the source
of such compensation.’’ (Emphasis added.) The plain
language of § 31-349 (a) demonstrates that if the plain-
tiff’s permanent disability is materially and substantially
greater than the disability that would have resulted from
the second injury alone because of the existence of a
preexisting disability, the plaintiff shall receive compen-
sation for the entire amount of the disability.
We next consider how this court has previously inter-
preted § 31-349 (a) in claims involving preexisting disa-
bilities. In 1943, this court decided Cashman v.
McTernan School, Inc., 130 Conn. 401, 34 A.2d 874
(1943). The plaintiff in that case, a schoolteacher, suf-
fered from progressive preexisting aseptic necrosis of
the left hip. Id., 402–403. The aseptic necrosis was
caused by a non-work related injury from wrestling
years prior to his claim for benefits. Id. The aseptic
necrosis did not cause any disability until the plaintiff
kicked a soccer ball during school and suffered a work
related injury to the hip. Id. At that point, the aseptic
necrosis became symptomatic. Id., 403. The commis-
sioner awarded 60 percent permanent partial disability
of the leg, finding that one quarter of the impairment
resulted from the workplace injury and three quarters
from the progressive effects of the preexisting disease.
Id. The employer claimed that the award should be
reduced under the predecessor to General Statutes § 31-
275 (1) (D), which limits compensation for aggravation
of a preexisting disease to the proportion of the disabil-
ity attributable to the injury on which the workers’
compensation claim is based. This court rejected that
claim and concluded that the statute only required a
reduction of benefits for preexisting occupational dis-
eases.3 Id., 408–409. Accordingly, this court affirmed the
commissioner’s award for the entire disability. Id., 409.
In 1974, this court decided Jacques v. H. O. Penn
Machinery Co., 166 Conn. 352, 349 A.2d 847 (1974). The
plaintiff in that case injured his right knee in the course
of his employment and his knee injury required surgery.
Id., 354. Immediately after surgery for his knee, the
plaintiff died of a heart attack. Id. The commissioner
found that the plaintiff had a preexisting heart condition
that had been made materially and substantially worse
by his knee injury and the resultant surgery. Id., 355.
On appeal to this court, one of the defendants claimed
that the plaintiff’s heart disease did not constitute a
‘‘preexisting permanent physical impairment’’ under
§ 31-349 (a) because it had not manifested itself during
his life or, alternatively, because his employer had no
prior knowledge of the heart disease. Id. This court
rejected this claim and concluded that the plaintiff’s
death was compensable. Id., 362.
In Levanti v. Dow Chemical Co., 218 Conn. 9, 11, 587
A.2d 1023 (1991), overruled in part on other grounds
by Williams v. Best Cleaners, Inc., 237 Conn. 490, 677
A.2d 1356 (1996), the plaintiff sustained injuries to his
back during the course of his employment. Because the
act did not provide specific benefits for back impair-
ment until 1967; see Public Acts 1967, No. 842, § 15; the
plaintiff did not receive workers’ compensation benefits
for injuries sustained in the course of his employment
in 1954 and 1962. Levanti v. Dow Chemical Co., supra,
11. In 1985, the plaintiff sustained a third injury to his
back during the course of his employment. Id. This
court affirmed the commissioner’s application of § 31-
349 (a), concluding: ‘‘[T]he commissioner determined
that the prior injuries had caused a 10 percent back
impairment while the third injury had caused a 5 percent
back impairment for a total of 15 percent. The defen-
dants do not challenge this finding. Because the earlier
injuries increased the extent of the resultant disability
by 200 percent, we conclude that the commissioner
reasonably determined that the plaintiff’s overall dis-
ability was materially and substantially greater as a
result of the earlier injuries within the meaning of § 31-
349.’’ Id., 17. In doing so, this court noted that ‘‘the prior
impairment need not combine with the compensable
injury in any special way, but must merely add some-
thing to the overall disability . . . . Thus, evidence
that the preexisting impairment has materially
increased the claimant’s overall disability is sufficient to
warrant application of § 31-349.’’ (Citation omitted.) Id.
As these cases demonstrate, this court has consis-
tently concluded that § 31-349 (a) provides compensa-
tion for any injury that combines with a preexisting
nonoccupational or noncompensable disability to mate-
rially increase the claimant’s overall impairment. With
this history in mind, we now turn to this court’s recent
decision in Deschenes v. Transco, Inc., supra, 288
Conn. 303.
In Deschenes, the plaintiff had been exposed to signif-
icant amounts of asbestos during his employment from
1967 to 1985. Id., 306. In 1994, he was diagnosed with
asbestos related pleural lung disease and was unable
to work full-time thereafter. Id., 306–307. During the
same time at which the plaintiff’s lungs were exposed
to asbestos, they also were exposed to another toxic
substance, due to the plaintiff’s longtime cigarette
smoking habit. Id., 307. At some unspecified point in
time, the plaintiff developed emphysema as a result of
his smoking. Id. It was undisputed that the plaintiff had
a 25 percent permanent partial disability of his lungs
at the time he sought workers’ compensation benefits.
Id., 306. At the hearing before the commissioner, a phy-
sician testified that this impairment was ‘‘the result of
both [the plaintiff’s] asbestos exposure and . . . his
former smoking, rather than . . . any smoking that had
occurred after the disease symptoms had begun to
develop.’’ (Internal quotation marks omitted.) Id., 308.
The physician also testified that three quarters of the
plaintiff’s disability was related to his emphysema and
one quarter of that disability was attributable to the
asbestos exposure. Id. The commissioner determined
that the plaintiff ‘‘had suffered a lung injury as a result
of his asbestos exposure at work, and ‘another lung
injury’ that resulted from his ‘long history of cigarette
smoking . . . .’ ’’ Id., 307. The commissioner further
determined that the plaintiff had sustained a 25 percent
permanent partial disability to each lung ‘‘as a result
of [his] asbestos related injury.’’ Id. The commissioner
determined, however, that ‘‘ ‘work related asbestos
exposure was a substantial contributing factor to this
injury and resulting permanency,’ and ordered the
defendants to pay permanent partial disability benefits
to the plaintiff equating to 25 percent of each of his
lungs, apportioned among the defendants, based on his
length of prior service with each.’’ Id., 308.
In Deschenes, the board affirmed the 25 percent dis-
ability award. Id. It emphasized that ‘‘even if the plain-
tiff’s smoking related emphysema is considered a
‘concurrently developing condition,’ rather than a pre-
existing condition, ‘that argument does not undo the
foundational tenet that the employer is responsible for
the effects of a compensable injury, even if that injury’s
toll on a particular claimant is unexpectedly severe
because of the way it collaborates with other health
problems.’’ Id., 309.
On appeal to this court, the defendants in Deschenes
claimed that the plaintiff was improperly awarded com-
pensation for the entire 25 percent permanent partial
disability in each lung, claiming that, because the plain-
tiff had two distinct lung injuries, one occupational,
and one not, they should not have been required to
compensate him for the entire disability. Id., 310. The
defendants further claimed that the award was
improper because ‘‘there was no finding that the plain-
tiff’s smoking related emphysema, which was a distinct
disease process that had developed concurrently with
his asbestos related symptoms and was responsible for
75 percent of his disability, was itself occupational in
nature in any way and, therefore, compensable.’’ Id.,
310. The defendants claimed that, because ‘‘there was
no evidence that the plaintiff’s emphysema was a preex-
isting condition that was aggravated by the asbestos
exposure . . . the axiom that an employer takes an
employee as it finds him [was] inapplicable and that,
as a policy matter, employers should not have to bear
the costs of their employees’ smoking habits.’’ Id.
In examining the defendants’ claim, this court recog-
nized ‘‘that the legal difficulty in the present case stems
from its factual posture, namely, that [the commis-
sioner] did not find that the plaintiff’s emphysema was
a preexisting condition that was aggravated by his
asbestos-related lung condition, a determination that
would have entitled the plaintiff to full compensation
under . . . § 31-275 (1) (D). . . . Similarly, [the com-
missioner] did not find that the plaintiff’s emphysema
was a ‘previous disability’ and that the asbestos expo-
sure was a ‘second injury resulting in a permanent dis-
ability caused by both the previous disability and the
second injury which is materially and substantially
greater than the disability that would have resulted from
the second injury alone,’ which would have entitled him
to full compensation under . . . § 31-349 (a). Instead,
the question presented here, namely, whether the act
requires the apportionment of benefits when a disability
is caused by two separate, but concurrently developing
medical conditions, only one of which is occupational
in nature, is one of first impression for Connecticut’s
appellate courts that requires us to fill a gap in our
statutes.’’ (Citations omitted; footnotes omitted.) Id.,
312–14.
Ultimately, this court concluded that ‘‘apportionment
or proportional reduction of permanent partial disabil-
ity benefits is appropriate when a respondent employer
is able to prove that: (1) a disability has resulted from
the combination of two concurrently developing dis-
ease processes, one that is nonoccupational, and the
other that is occupational in nature; and (2) the condi-
tions of the claimant’s occupation have no influence
on the development of the nonoccupational disease. In
our view, this conclusion is consistent with the legisla-
ture’s treatment of the aggravation of preexisting injur-
ies under § 31-275 (1) (D), and second injuries under
§ 31-349 (a), in that it accommodates two axiomatic
principles of workers’ compensation law, namely, that
to be compensable, the injury must arise out of and
occur in the course of the employment, and also that
an employer takes the employee in the state of health
in which it finds the employee. . . . Blakeslee v. Platt
Bro. & Co., 279 Conn. 239, 245, 902 A.2d 620 (2006).’’
(Footnotes omitted; internal quotation marks omitted.)
Deschenes v. Transco, Inc., supra, 288 Conn. 321–22.
Turning to the present case, the defendants assert
that Deschenes governs the plaintiff’s claim and dictates
that the plaintiff’s nonoccupational condition does not
fall within the ambit of § 31-349 (a). We disagree. Noth-
ing that this court set out in Deschenes was intended
to be a departure from our traditional workers’ compen-
sation law or an abandonment of the principle that an
employer takes the employee in the state of health in
which it finds the employee. Instead, Deschenes was
only intended to resolve the narrow issue before it—
namely, the extent of compensability when an employee
incurs a disability as a result of two concurrently devel-
oping disease processes. Deschenes involved a worker
who was at ‘‘ ‘risk’ ’’ of developing a smoking related
disease that impaired his lungs prior to the concurrent
development of emphysema and asbestos related pleu-
ral lung disease. Id., 311. It was the temporal issue that
gave rise to the problem in Deschenes, not the fact that
these diseases were progressive in nature. This court’s
emphasis on the concurrently developing nature of the
medical conditions was not intended to distinguish dis-
eases that may progressively worsen over time from
other compensable injuries. Indeed, a personal injury
arising from an accident may progressively worsen over
time. We have never held that a disability arising under
such circumstances falls outside the general rule appli-
cable to preexisting injuries. Rather, our use of the term
concurrently developing was intended to focus on the
temporal aspect of the manifestation of these diseases.
Although the plaintiff in Deschenes had a preexisting
risk for developing a smoking related impairment to
his lungs, he did not have a preexisting injury from his
self-induced toxic exposure. Accordingly, the inference
most favorable to the plaintiff in Deschenes that the
record supported was that his nonoccupational disease
manifested at the same time as his occupational disease.
Therefore, the question in the present case is whether
the factual findings demonstrate that the plaintiff suf-
fered a preexisting disability that combined with the
workplace injury like the claimants in Cashman v.
McTernan School, Inc., supra, 130 Conn. 401, and
Jacques v. H. O. Penn Machinery Co., supra, 166 Conn.
352, or that the plaintiff had two concurrently devel-
oping disease processes, like the claimant in Deschenes.
If the former, the question arises whether the current
disability is materially and substantially greater than
the disability that would have resulted from the second
injury alone, as required to recover for the entire disabil-
ity under § 31-349 (a).
To resolve these questions, we must undertake a care-
ful examination of the factual findings of the commis-
sioner, which are undisputed. The plaintiff was
diagnosed with diabetes in 1987 and diabetic neuropa-
thy in 1989. At the time he was diagnosed with diabetic
neuropathy, he already was experiencing weakness and
tingling in his hands, a loss of feeling in his fingertips
and difficulty grasping items. On March 5, 2003, the
plaintiff sustained bilateral upper extremities and bilat-
eral hand injuries that arose out of and in the course
of his employment with the defendants. These injuries
were separate and distinct from the plaintiff’s diabetic
neuropathy, which also significantly affected his hands
and arms.
The commissioner also found that the plaintiff’s ‘‘dia-
betic neuropathy is an independent and nonoccupa-
tional developing disease process affecting his arms
and hands’’ and that the plaintiff’s ‘‘occupation/work
activities had no influence in the development of the
nonoccupational disease to his arms and hands.’’ None-
theless, the medical evidence also indisputably demon-
strated that the permanent disability resulted from a
combination of the diabetic neuropathy and impairment
from the work related injury.
These findings necessarily demonstrate that the com-
missioner determined that the plaintiff’s diabetic neu-
ropathy was a ‘‘previous disability.’’ Section 31-275 (20)
defines ‘‘ ‘[p]revious disability’ ’’ as ‘‘an employee’s pre-
existing condition caused by total or partial loss of, or
loss of use of, one hand, one arm, one foot or one eye
resulting from accidental injury, disease or congenital
causes, or other permanent physical impairment.’’ See
also Williams v. Best Cleaners, Inc., supra, 237 Conn.
499 (‘‘[w]e define ‘disability,’ for the purpose of § 31-
349 [a] to refer to a claimant’s physical impairment’’).
The commissioner found that the plaintiff had a medical
diagnosis of diabetic neuropathy and the physical mani-
festations of the disease prior to the workplace accident
in March, 2003. The commissioner expressly stated that
the plaintiff suffered from ‘‘preexisting neuropathy’’ and
that the plaintiff’s ‘‘preexisting neuropathy is diabetic
in nature and not caused by the accepted work
related injury.’’4
The record also clearly establishes that the plaintiff’s
current disability is materially and substantially greater
than the disability that would have resulted from the
second injury alone, as required by § 31-349 (a). The
commissioner found that the preexisting disability, dia-
betic neuropathy, and the workplace injury combined
to cause his current impairment. The commissioner
credited testimony that the plaintiff’s ‘‘work related
injuries were a substantial contributing factor to his
current bilateral hand and bilateral upper extremity
conditions and their resulting permanencies.’’ The com-
missioner found that the workplace ‘‘injuries were sepa-
rate and distinct from the plaintiff’s diabetic neuropathy
which also significantly affected his hands and arms.’’
The commissioner further explained that ‘‘ ‘the question
is how much of this is residual from his diabetic neurop-
athy and how much of it is from his median nerve and
ulnar nerve compressions.’ ’’ The commissioner relied
on and credited the following testimony from Linburg:
‘‘ ‘[I]n the case of an individual with cubital tunnel syn-
drome but some residual sensory and motor deficit, I
would place a permanent partial functional impairment
of the upper extremity of 10 [percent]. On the basis of
a release of the carpal tunnel in an individual who has
residual motor and sensory deficit, I would place a 10
[percent] permanent partial functional impairment of
the hand. In [the plaintiff’s] case, however, he has severe
motor and sensory loss in both nerves. . . . [W]orst
case scenario with motor and sensory deficit, the
median nerve is a maximum of 44 [percent] of the upper
extremity; motor and sensory deficit of the ulnar nerve
below midforearm, maximum is 40 [percent] of the
upper extremity. It is my opinion, however, that the
major portion of [the plaintiff’s] ongoing neurological
findings are on the basis of his polyneuropathy from
diabetes as opposed to residual compressive neuropa-
thy, and I would place a 10 [percent] permanent partial
functional impairment of each upper extremity on the
basis of the cubital tunnel, neurolysis of his ulnar nerve
and a 10 [percent] permanent partial functional impair-
ment of each hand on the basis of the carpal tunnel
releases.’ ’’ Thus, approximately one quarter of the
plaintiff’s disability is caused by his work related injury.
These findings by the commissioner demonstrate that
the plaintiff in the present case had a previous disability
and that the previous disability combined with the
workplace injury to result in his current impairment.
As this court concluded in Levanti v. Dow Chemical
Co., supra, 218 Conn. 17, ‘‘the prior impairment need
not combine with the compensable injury in any special
way, but must merely add something to the overall
disability . . . . Thus, evidence that the preexisting
impairment has materially increased the claimant’s
overall disability is sufficient to warrant application of
§ 31-349.’’ (Citation omitted.)
Indeed, we conclude that the present case is analo-
gous to the situation in Jacques, in which an employee
has an ongoing developing disease process and then
suffers a work related injury that causes a permanent
disability that is made materially and substantially
greater than the disability that would have resulted from
the second injury alone. See Jacques v. H. O. Penn
Machinery Co., supra, 166 Conn. 362 (employee with
unknown preexisting heart disease and occupational
knee injury entitled to full compensation under § 31-
349 [a]); see also Cashman v. McTernan School, Inc.,
supra, 130 Conn. 409 (employee with aseptic necrosis
of hip who suffered occupational injury to his hip that
was made substantially worse because of presence of
aseptic necrosis was entitled to full compensation
under § 31-349 [a]).
In reaching this conclusion, we are mindful that ‘‘[i]t
is well established that, in resolving issues of statutory
construction under the act, we are mindful that the
act indisputably is a remedial statute that should be
construed generously to accomplish its purpose. . . .
The humanitarian and remedial purposes of the act
counsel against an overly narrow construction that
unduly limits eligibility for workers’ compensation.’’
(Internal quotation marks omitted.) DiNuzzo v. Dan
Perkins Chevrolet Geo, Inc., supra, 294 Conn. 150.
Accordingly, we decline to extend Deschenes v.
Transco, Inc., supra, 288 Conn. 303, in a manner that
would unduly undermine established remedial princi-
ples. Therefore, we conclude that the Appellate Court
properly reversed the board’s decision affirming the
commissioner’s decision in favor of the defendants.
The Appellate Court remanded the case to the board
with direction to reverse the decision of the commis-
sioner and to remand the case to the commissioner for
further proceedings. Sullins v. United Parcel Service,
Inc., supra, 146 Conn. App. 166–67. We conclude that,
on remand, the factual findings contained within the
record require the commissioner to award the plaintiff
44 percent permanent partial disability benefits to his
bilateral upper extremities and 40 percent permanent
partial disability benefits to his bilateral hands.
The judgment of the Appellate Court is affirmed and
the case is remanded for further proceedings in accor-
dance with the preceding paragraph.
In this opinion the other justices concurred.
1
General Statutes § 31-349 (a) provides: ‘‘The fact that an employee has
suffered a previous disability, shall not preclude him from compensation
for a second injury, nor preclude compensation for death resulting from
the second injury. If an employee having a previous disability incurs a second
disability from a second injury resulting in a permanent disability caused
by both the previous disability and the second injury which is materially
and substantially greater than the disability that would have resulted from
the second injury alone, he shall receive compensation for (1) the entire
amount of disability, including total disability, less any compensation pay-
able or paid with respect to the previous disability, and (2) necessary medical
care, as provided in this chapter, notwithstanding the fact that part of the
disability was due to a previous disability. For purposes of this subsection,
‘compensation payable or paid with respect to the previous disability’
includes compensation payable or paid pursuant to the provisions of this
chapter, as well as any other compensation payable or paid in connection
with the previous disability, regardless of the source of such compensation.’’
2
Judge Robinson authored a dissenting opinion in which he concluded
that ‘‘the record in the present case supports the conclusion of the [commis-
sioner] and the [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 . . .
Deschenes . . . was appropriate . . . .’’ Sullins v. United Parcel Service,
Inc., supra, 146 Conn. App. 167.
3
We note that neither party claims that § 31-275 (1) (D) applies to the
present case. Indeed, as the commissioner stated in his factual findings,
‘‘[i]n response to a letter dated June 2, 2010 . . . authored by the [plaintiff’s]
attorney, [Linburg] retracted his opinion that the [plaintiff’s] preexisting
neuropathy was aggravated by the March 5, 2003 injuries.’’
4
Although the plaintiff has not challenged the commissioner’s decision
on the ground that his work related injury is not an occupational disease,
we note that it seems implicit in the facts found that the March, 5, 2003
injury was not an occupational disease, as was the case in Deschenes, but
an accidental injury that left the plaintiff with nerve damage. Although the
commissioner credited the evaluating physician’s testimony, which at one
point characterized the plaintiff’s disability as resulting from ‘‘two concur-
rent disease processes,’’ the commissioner’s own characterization of the
injury did not use similar terminology and fixed the injury as being sustained
on a specific date. As such, it would appear that the injury properly should
not be viewed, at least for purposes of Deschenes, as an occupational disease.
See General Statutes § 31-275 (16) (A) (‘‘ ‘[p]ersonal injury’ or ‘injury’
includes, in addition to accidental injury that may be definitely located
as to the time when and the place where the accident occurred, an injury
to an employee that is causally connected with the employee’s employment
and is the direct result of repetitive trauma or repetitive acts incident to
such employment, and occupational disease’’ [emphasis added]); see also
General Statutes § 31-275 (15) (‘‘ ‘[o]ccupational disease’ includes any dis-
ease peculiar to the occupation in which the employee was engaged and
due to causes in excess of the ordinary hazards of employment as such,
and includes any disease due to or attributable to exposure to or contact with
any radioactive material by an employee in the course of his employment’’).