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Flor v. Holguin8/30/2000
causes the employee's work disability, then the employer and/or its insurer at the time of such diagnosis are liable for the payment of the employee's workers' compensation benefits. We further hold that subsequent employer and/or its insurer at the time of the employee's diagnosis are solely liable only if the contribution of the subsequent employment to the development of the disability is established by medical evidence and there is no rational basis for apportionment. Finally, we hold that if the medical evidence establishes a rational basis upon which to apportion liability among successor and/or predecessor employers and/or their insurance carriers and the apportionment will serve the interests of fairness to both the employers and the employee entitled promptly to receive the compensation, then the Director is authorized to order such an apportionment.
In the present matter, Flor's hepatitis C was actually and conclusively diagnosed on January 12, 1994. . . .
. . . We have applied a modified version of the last injurious exposure rule in holding that Flor's employers and/or their insurers as of January 12, 1994 are liable for the payment of the benefits to which her claim entitles her. Inasmuch as, on that date, Flor was concurrently employed by three dentists, who were insured by two carriers, the Director will be required to determine the liability of each of those employers for her workers' compensation benefits.
The last injurious exposure rule is not helpful in resolving the additional and distinct matter of apportioning the liability of multiple and concurrent (as opposed to successive) employers. . . .
The apportionment of liability among concurrent employers involves an exercise in fact-finding. . . .
We note that the Workers' Compensation Law provides for apportionment of liability for an injured employee's benefits between the employer and the special compensation fund when the employee is concurrently employed in more than one employment and sustains an injury while working for one of the employers. See HRS § 386-51.5 (Supp. 1999). However, the statute does not address the circumstance of multiple concurrent employers being simultaneously liable for the employee's benefits.
We hold that in these circumstances, the Director may apportion liability among the liable employers. Furthermore, we agree with the courts that have approved the apportionment of liability in proportion to the wages earned by the employee in the employ of each of those employers. Such a rule is consistent with the general principle that workers' compensation disability benefits are determined on the basis of the employee's weekly earnings, see HRS § 386-31, and it is simple to apply, thereby reducing the risk and cost of the litigation respecting the liability of each of the concurrent employers. 93 Hawaii at 256, 258, 260, 265-67, 999 P.2d at 854, 856, 858, 863-65 (some citations omitted) (footnotes omitted) (emphases in original).
It should be noted that we did not expressly determine, or even assume, in Flor I that subsequent contact with the Hepatitis C virus in fact aggravated or accelerated the development of Flor's disease. We merely held, inter alia, that the Employers bore the burden of adducing substantial evidence that Flor's contact with potentially contaminated blood, which continued throughout her employment with the Employers, did not contribute to her condition. Id. at 260, 999 P.2d at 858. Based on the record before us and the weight of analogous authority from other jurisdictions, we viewed hepatitis C as an occupational disease caused by contact with blood containing the hepatitis C virus. Id. at 252-53, 259, 999 P.2
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