Connecticut Supreme Court Allows Cigarette Smoking to Be a Factor in Filing Asbestos Claims

In a blow to a workers’ compensation plaintiff, the Supreme Court of Connecticut ruled that expenses related to a claimant’s lung disease caused by smoking had to be deducted when determining awards for asbestos related compensation. In the past, full compensation was given to the claimant. The plaintiff’s attorney, Christopher Meisenkothen, stated that the Connecticut Supreme Court “has enacted a new rule of law based on the novel and undefined term ‘concurrently developing disease process’ in contravention of the Workers’ Compensation Act”. The ruling is a reconsideration of a previous ruling in this case, George Deschenes v. Transco. Deschenes, the plaintiff, was a smoker who sought full asbestos-related compensation. This fell under a commonly held view in tort law, known as “eggshell skull plaintiff”, that an employer hired an employee in his entirety with pre-existing medical conditions. An employee more susceptible for injury on the job still deserves the same amount of worker’s compensation as someone who was healthy. Deschenes’s smoking put him at risk for lung disease, but his employer, Transco, hired him with that knowledge, and should pay full compensation.

In making this decision, the Connecticut Supreme Court consulted amicus briefs from worker’s compensation lawyers, prior rulings in other courts, and the initial facts of this case. They had to contend with conflicting laws in workers’ compensation. Besides the “eggshell skull plaintiff” aspect, another law holds that compensation can occur only from injuries incurred while on the job. The ruling sided with the defense since it appeared that there was no evidence that Deschenes had smoking related emphysema when he was hired by Transco. A writer of one of the amicus briefs, Steven Embry, of Embry and Neusner, argued that it was the task of the state legislature to change worker’s compensation law, and that this was not an appropriate decision for the state Supreme Court to make. Many fear that this ruling could set a precedent for future worker’s compensation cases which would lessen awards. Embry says, “The legislature needs to fix this.”