Deschenes v. Transco, Inc.

George Deschenes (plaintiff) worked for many years as an insulator on commercial construction sites for multiple employers. In the course of that work, Deschenes was exposed to significant amounts of asbestos, with his last exposure occurring in 1985 while employed by Transco, Inc. (defendant). Deschenes was also a cigarette smoker until he suffered a heart attack in 1991 and was diagnosed with smoking-related emphysema. Deschenes was also diagnosed with asbestos-related lung disease and was unable to work after 1994. Deschenes filed a claim for workers’-compensation benefits, and a commissioner found that Deschenes suffered two lung injuries—one due to work-related asbestos exposure and the other resulting from a long history of cigarette smoking. The commissioner ordered an independent examination to assess Deschenes’s condition, and after a subsequent hearing, another commissioner concluded that Deschenes had sustained a 25 percent permanent partial disability to each lung because of the asbestos-related injury. There was conflicting medical testimony as to whether Deschenes’s disability was caused by the asbestos exposure or by smoking. Nevertheless, the commissioner held that work-related asbestos exposure was a substantial contributing factor to the injury and its permanency, and the commissioner ordered Deschenes’s former employers to pay benefits based on Deschenes’s length of service with each. The workers’-compensation board affirmed, concluding that Deschenes’s smoking-related emphysema need not be treated separately for purposes of apportioning benefits based upon the principle of workers’-compensation law that an employer takes its employee as it finds him. The employers appealed.