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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 nonoccupational condition that manifests prior to an occupational injury that further disables the same body part is

a compensable preexisting injury or a noncompensable

concurrently developing disease under the apportionment 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 apportioning 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

Commissionerforthe 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 Appellate 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

thatthe 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 commissioner heard oral argument on July 21, 2010, and issued

his finding and award on December 7, 2010. The commissioner found that: (1) ‘[t]he [plaintiff’s] diabetic neuropathy 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 nonoccupational 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 commissioner’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 processes, 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 commissioner’s decision to the board.

‘‘The board concluded that the facts found by the

commissioner were similarto 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.’’ (Footnotes altered.) Sullins v. United Parcel Service, Inc.,

146 Conn. App. 154, 156–59, 77 A.3d 196 (2013). Additional facts will be set forth as necessary.

The plaintiff appealed to the Appellate Court, claiming 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 defendants 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 diabetic neuropathy was a previous disability, and because

it was, it could not have also been a concurrently developing disease process.’’2

Id., 161. Accordingly, the

Appellate Court concluded that ‘‘the plaintiff’s permanent disability met the standard in . . . § 31-349, and

therefore, may not be apportioned. The board, therefore, 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 permanent 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 undisputed evidence demonstrated that the plaintiff’s preexisting 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 Appellate 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 unwarranted when the construction of a statute . . . has not

previously been subjected to judicial scrutiny [or to]

. . . a governmental agency’s time-tested interpretation . . . . 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 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. . . . Accordingly, [i]n construing workers’ compensation law, we must resolve statutory ambiguities 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 commissioner 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], compensation 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 predisposed 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 acceleration 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 employment.’’ (Citation omitted.) Id., 543–44.

‘‘[T]he employer is responsible for all the consequences of the compensable injury, even though the

consequences of the injury may be greaterto 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 treatment 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, 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 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 plaintiff’s permanent disability is materially and substantially

greaterthan the disability that would have resulted from

the second injury alone because of the existence of a

preexisting disability,the plaintiff shallreceive compensation for the entire amount of the disability.

We next consider how this court has previously interpreted § 31-349 (a) in claims involving preexisting disabilities. 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, suffered 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 commissioner 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 underthe predecessorto General Statutes § 31-

275 (1) (D), which limits compensation for aggravation

of a preexisting disease to the proportion of the disability 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 diseases.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 impairment until 1967; see Public Acts 1967, No. 842, § 15; the

plaintiff did notreceive 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 defendants 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 disability 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 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.) Id.

As these cases demonstrate, this court has consistently concluded that § 31-349 (a) provides compensation for any injury that combines with a preexisting

nonoccupational or noncompensable disability to materially 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 significant 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 physician 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 disability award. Id. It emphasized that ‘‘even if the plaintiff’s smoking related emphysema is considered a

‘concurrently developing condition,’ rather than a preexisting 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 compensation for the entire 25 percent permanent partial

disability in each lung, claiming that, because the plaintiff 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 plaintiff’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 preexisting 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 recognized ‘‘that the legal difficulty in the present case stems

from its factual posture, namely, that [the commissioner] 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 commissioner] did not find that the plaintiff’s emphysema

was a ‘previous disability’ and that the asbestos exposure was a ‘second injury resulting in a permanent disability caused by both the previous disability and the

second injury which is materially and substantially

greaterthan 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 disability benefits is appropriate when a respondent employer

is able 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. In

our view, this conclusion is consistent with the legislature’s treatment of the aggravation of preexisting injuries 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. Nothing that this court set out in Deschenes was intended

to be a departure from ourtraditional workers’ compensation 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 developing 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 pleural 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 diseases 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 applicable 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 suffered 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 developing 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 recoverforthe entire disability under § 31-349 (a).

To resolve these questions, we must undertake a careful examination of the factual findings of the commissioner, which are undisputed. The plaintiff was

diagnosed with diabetes in 1987 and diabetic neuropathy 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 bilateral 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 ‘‘diabetic neuropathy is an independent and nonoccupational 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.’’ Nonetheless, 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 commissioner determined that the plaintiff’s diabetic neuropathy was a ‘‘previous disability.’’ Section 31-275 (20)

defines ‘‘ ‘[p]revious disability’ ’’ as ‘‘an employee’s preexisting 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 commissionerfound that the plaintiff had a medical

diagnosis of diabetic neuropathy and the physical manifestations of the disease priorto 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, diabetic 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 commissionerfound that the workplace ‘‘injuries were separate and distinct from the plaintiff’s diabetic neuropathy

which also significantly affected his hands and arms.’’

The commissionerfurther explained that ‘‘ ‘the question

is how much of this is residual from his diabetic neuropathy 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 syndrome 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 neuropathy, 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 impairment 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 analogous 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

greaterthan 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 principles. 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 accordance 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 payable 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 [commissioner] 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 concurrent 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 disease 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’’).