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Flor v. Holguin8/30/2000
d at 850-51, 857. The present record reflects that medical science recognizes a multitude of strains or genotypes of the hepatitis C virus characterized by varying degrees of virulence and drug resistance. Thus, on the present record, it is conceivable that a reinfection with a different strain of the hepatitis C virus could affect the condition of the infected individual. However, it is not for this court to find such a fact. It must be found by the trier of fact based on evidence adduced by the parties. In the absence of such evidence, we concluded on the record in Flor I that the Employers had failed to carry their statutory burden. Nevertheless, in view of the fact that Flor I addressed a novel question in this jurisdiction, we believe that both fairness and the interests of justice require us to allow the Employers an opportunity to adduce relevant evidence on remand.
The AMA/HMA cite a variety of sources from the medical literature dealing with the mechanism of transmission of hepatitis C. They urge that, " f, as the medical literature indicates, the course of chronic hepatitis C is associated with the means, and not the frequency, of exposure to the virus, then repeated exposures in the workplace would not contribute to the progression of the disease." Thus, the AMA/HMA's suggestion that, according to current medical research, once an individual first contracts hepatitis C, subsequent exposures to the virus do not contribute to the progression of the disease, is tantamount to a claim that the initial exposure to the hepatitis C virus is the only "injurious" exposure; in other words, the AMA/HMA argue that the first "injurious exposure" to the hepatitis C virus may also be the last "injurious exposure." If that is indeed the case, then any employer for whom Flor worked subsequently to having contracted the disease could not be liable for workers' compensation benefits, inasmuch as Flor's "injury by disease" would not have resulted from her "actual exposure" to the "working conditions" of that particular employment. See Flor I, 93 Hawaii at 256, 999 P.2d at 854 (citing Muir v. C. R. Bard, Inc., 519 S.E.2d 583, 592 (S.C. Ct. App. 1999)).
On the other hand, the AMA/HMA mischaracterize the material issue as being whether the "last injurious exposure rule" would apply in the present case in the event that, after Flor initially contracted hepatitis C, subsequent exposures to the hepatitis C virus could not have contributed to or otherwise aggravated the progression of the disease. After all, the rule is not grounded in "the assumption that repeated exposures contribute to the occupational disease," as the AMA/HMA suggest, but, rather, in the administrative efficiency that the rule affords absent medical evidence by which to establish a rational basis for apportioning liability for the payment of workers' compensation benefits among several otherwise liable employers. See Flor I, 93 Hawaii at 260-67, 999 P.2d at 858-65.
Correlatively, the Employers have suggested that Flor I inconsistently assumed that Flor's exposure to the hepatitis C virus contributed to the progression of her disease before it was first medically diagnosed but not after. They are mistaken. As we explained in Flor I, 93 Hawaii at 263, 999 P.2d at 861, "there is no reason to apply the [last injurious exposure] rule with any greater arbitrariness than is required to achieve its purposes." (Citation and internal quotation marks omitted.) (Some brackets added and some omitted.) Consequently, we held in Flor I that any employers for whom Flor commenced working subsequent to the conclusive diagnosis of her hepatitis C would not be liable for her workers' compensation benefits absent proof that such work contributed to or ot
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