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Flor v. Holguin8/30/2000
MOTIONS FOR RECONSIDERATION
The employers/insurance carriers/appellees Carlos Richard Holguin, D.D.S., and Pacific Insurance Company (hereinafter, Holguin/Pacific), Douglas H. Dierenfield, D.D.S., and Travelers Insurance Company (hereinafter, Dierenfield/ Travelers), and William R. Babbitt, D.D.S., and Pacific Insurance Company (hereinafter, Babbitt/Pacific) [hereinafter, collectively, "the Employers"] have moved for reconsideration of this court's opinion, filed on May 30, 2000, in Flor v. Holguin, 93 Hawaii 245, 999 P.2d 843 (2000) [hereinafter, "Flor I"]. The American Medical Association (AMA) and the Hawaii Medical Association (HMA) [hereinafter, collectively, "the AMA/HMA"] have filed an amicus curiae brief.
The only issue meriting our further attention is the assertion that the Employers should be entitled to adduce evidence regarding the question whether exposures to the hepatitis C virus subsequent to the claimant-appellant Kathleen M. Flor's initial infection contributed to or otherwise aggravated her disability. Inasmuch as the nature of the compensability of an injury resulting from hepatitis C as an "occupational disease" posed a novel question in this jurisdiction, we agree that Flor I articulated new standards that the parties did not have occasion to address. Therefore, we amend our decision in Flor I, on remand, to allow the Employers the opportunity, as they see fit, to bolster or rebut the presumption that Flor's continued exposure to the conditions that initially precipitated her hepatitis C contributed to or otherwise aggravated the progression of her disease.
The background of this case is summarized in Flor I, 93 Hawaii at 249-251, 999 P.2d at 847-849. The material holdings of Flor I were as follows:
We hold that an employee's injury caused by a disease is compensable as an "injury by disease," pursuant to HRS § 386-3, when the disease (1) is caused by conditions that are characteristic of or peculiar to the particular trade, occupation, or employment, (2) results from the employee's actual exposure to such working conditions, and (3) is due to causes in excess of the ordinary hazards of employment in general. In this connection, and pursuant to HRS § 386-85, the burden is on the employer seeking to avoid liability to demonstrate by substantial evidence that these conditions are not present.
We hold that a claimant in a case arising under the "injury-by-disease" prong of HRS § 386-3 may rely upon the . . . "date of disability," which typically is the last day of employment but, as indicated supra, may also be the date of diagnosis of the disabling condition, in order to identify the "date of injury" required . . . in connection with the filing of a workers' compensation claim. . . .
. . . he record establishes that [Flor's] contact with potentially contaminated blood continued throughout her employment with the Employers. The testimony adduced by the parties focused on the time when Flor originally contracted the disease. However, nothing in the record suggests that subsequent exposures did not contribute to the ongoing progression of the disease. Ultimately, the cause of Flor's hepatitis C and its precise relationship to each of her employers remains unknowable. None of the Employers, however, carried their burden of demonstrating that Flor's employment with them did not contribute to her disability.
On remand, the Director will be faced with the task of determining which of the Employers are liable for the payment of Flor's workers' compensation benefits and the allocation of such liability. . . .
We hold that if an employee's occupational disease is medically diagnosed and ultimately
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