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Flor v. Holguin8/30/2000
herwise aggravated her condition. Id. at 265 & n.11, 999 P.2d at 863 & n.11. Indeed, as a general proposition, "when disability manifests itself in an employment that could not have contributed to it, but a prior employment in fact did so, the prior employer is liable under the last injurious exposure rule, [even though] the date of disability is the later date of diminished earning capacity." Id. at 265 n.11, 999 P.2d at 863 n.11. Nevertheless, "there may be other scenarios." Id.
A careful review of the record, which was before the LIRAB at the time that it entered summary judgment against Flor and in favor of the Employers, reveals that the medical evidence established, at most, that Flor had contracted hepatitis C at some time, which was not susceptible to any more precise medical identification, before 1990. That is to say, the medical evidence reflected that the precise time when Flor first contracted hepatitis C was not possible to ascertain and that any attempt to describe a more detailed time line regarding the development of Flor's disease would amount to a mere estimate or guess. Thus, were the AMA/HMA's theory of the development of hepatitis C to be accepted by the trier of fact on remand, the presumption of compensability would be rebutted at most as to the employers who employed Flor commencing in or after 1990. As we noted in Flor I, Babbitt, Dierenfield, and Holguin admitted that their respective employment of Flor commenced in 1987, 1989, and 1991. 93 Hawaii at 249, 999 P.2d at 847. Accordingly, on the record in Flor I, Babbitt and Dierenfield would remain liable for workers' compensation benefits, even if it were established that subsequent exposures to the hepatitis C virus could not have affected the disease process of an individual who already carried the virus. Moreover, Flor averred in an affidavit, which was attached to her memorandum in opposition to the Employers' motion for summary judgment, that she had performed work for Holguin beginning in 1987 "on a cash payment basis." If Flor's averment were accepted by the trier of fact, then Holguin would also be liable, as we originally held in Flor I, but that judgment belongs to the Director on remand.
Based on the foregoing analysis, the Employers' motion for reconsideration is granted in part and denied in part. On remand to the Director, the Employers may, as they see fit, seek 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. Depending upon the Director's findings of fact in this regard, the Director shall determine which of the Employers, if any, are liable for the payment of Flor's worker's compensation claim. In all other respects, our decision in Flor I is affirmed.
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