Flor v. Holguin, No. 22641.

• Decision Date: 30 May 2000
• Docket Number: No. 22641.
• Citation: 94 Haw. 70,9 P.3d 382
• Parties: Kathleen M. FLOR, Claimant-Appellant, v. Carlos Richard HOLGUIN, D.D.S., and Pacific Insurance Company, Employer/Insurance Carrier-Appellee, and Douglas H. Dierenfield, D.D.S., and Travelers Insurance Company, Employer/Insurance Carrier-Appellee, and William R. Babbitt, D.D.S., and Pacific Insurance Company, Employer/Insurance Carrier-Appellee, and Carlos Ricard Holguin, D.D.S., and Island Insurance Company, Employer/Insurance Carrier-Appellee, and William R. Babbitt, D.D.S., and Crawford and Company, Employer/Insurance Carrier-Appellee
• Court: Hawaii Supreme Court

9 P.3d 382

94 Haw. 70

Kathleen M. FLOR, Claimant-Appellant, v. Carlos Richard HOLGUIN, D.D.S., and Pacific Insurance Company, Employer/Insurance Carrier-Appellee, and Douglas H. Dierenfield, D.D.S., and Travelers Insurance Company, Employer/Insurance Carrier-Appellee, and William R. Babbitt, D.D.S., and Pacific Insurance Company, Employer/Insurance Carrier-Appellee, and Carlos Ricard Holguin, D.D.S., and Island Insurance Company, Employer/Insurance Carrier-Appellee, and

William R. Babbitt, D.D.S., and Crawford and Company, Employer/Insurance Carrier-Appellee

No. 22641.

Supreme Court of Hawai`i.

May 30, 2000.

Reconsideration Denied August 30, 2000.

John P. Powell, Kailua Kona, on the briefs, for the claimant-appellant Kathleen M. Flor.

Scott R. Devenney, Honolulu, on the briefs, for employer/insurance carrier-appellee Carlos R. Holguin and Pacific Insurance Co., Ltd.

Roland Q.F. Thom and Rock B. Ley (of Char Hamilton Campbell & Thom), Honolulu, on the briefs, for employer/insurance carrier-appellee William R. Babbitt and Pacific Insurance Co., Ltd.

MOON, C.J., LEVINSON, NAKAYAMA, RAMIL, JJ., and Circuit Court Judge BAXA, Assigned by Reason of Vacancy.

Opinion of the Court by LEVINSON, J.

The claimant-appellant Kathleen M. Flor appeals from the decision and order of the State of Hawai`i Labor and Industrial Relations Appeals Board (LIRAB), filed on May 25, 1999, and the amended decision and order of the LIRAB, filed on May 28, 1999, affirming the director of labor and industrial relations' ("the Director") denial of compensability of Flor's workers' compensation claims and granting summary judgment in favor of the following employer/insurance-carrier appellees (collectively, "the Employers"): 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]; William R. Babbitt, D.D.S., and Pacific Insurance Company [hereinafter, Babbitt/Pacific]; Carlos Richard Holguin, D.D.S., and Island Insurance Company [hereinafter, Holguin/Island]; and William R. Babbitt, D.D.S., and Crawford And Company [hereinafter, Babbitt/Crawford]. On appeal, Flor raises a single point of error, namely, that the LIRAB erred in denying her workers' compensation claims against the Employers under Hawai`i Revised Statutes (HRS) ch. 386 [hereinafter, the Workers' Compensation Law] inasmuch as Flor was unable to determine the date on which she acquired the hepatitis C virus. For the reasons explained in this opinion, we agree. We therefore vacate the LIRAB's orders and remand to the Director for further proceedings consistent with this opinion, including (1) the determination whether and during what periods, if any, Flor was temporarily and/or permanently and partially and/or totally disabled as a result of her hepatitis C and (2) the apportionment of liability with respect to Flor's workers' compensation claim among Holguin/Pacific, Dierenfield/Travelers, and Babbitt/Pacific.

I. BACKGROUND

A. Factual History

Flor has worked as a dental hygienist since the 1960s. She has been employed by numerous dentists and periodontists over the course of her career. Flor was employed part time by Babbitt from 1987 to 1996, by Dierenfield from 1989 to 1994, and by Holguin from 1991 to 1996.

As a dental hygienist, Flor used sharp instruments to clean her patients' teeth. Her patients bled during the cleaning procedure. Flor sustained numerous "cuts and pokes" by her instruments over the course of her career, including wounds sustained during her employment with Babbitt, Dierenfield, and Holguin.

Flor was first treated for symptoms consistent with hepatitis in 1990. However, the hepatitis C test ordered for Flor in December 1990 reflected a negative result. Three years later, she was again tested for hepatitis C. On January 12, 1994, the positive results of that test were obtained by the physician who ordered it, although Flor did not learn of her hepatitis C diagnosis until April 17, 1996, after another physician arranged for further tests to be performed. Because of health problems caused by the hepatitis C, Flor ceased working on May 4, 1996.

The hepatitis C virus was first identified in 1989, and the first test for the disease was introduced in 1990. The medical evidence adduced by the parties suggested that symptoms of or abnormalities resulting from hepatitis C may manifest themselves within two to ten weeks after exposure. However, many patients remain asymptomatic, and the rate of progression of the disease is believed to be highly variable, the average time between infection and advanced liver disease being between ten and twenty years. Numerous physicians opined, by way of letters obtained by the parties and made part of the record in the present matter, that Flor's employment as a dental hygienist was a risk factor, which, in the absence of other risk factors, indicated that Flor probably had acquired hepatitis C through work exposure to contaminated blood. However, some of the physicians noted risk factors for hepatitis C infection other than work exposure to contaminated blood. The physicians' opinions regarding the timing of Flor's first exposure to the virus were based upon their view of the stage to which her liver disease had progressed, which suggested that she had probably first acquired the virus in the 1980s or earlier. There was, however, no test or procedure that could reliably isolate either the time of first infection with hepatitis C or the source of the infection.

Flor was unable to recall, identify, or otherwise determine the date on which she contracted hepatitis C. She does not contest that she probably contracted the disease prior to 1990. Responding to the Employers' requests for admissions, Flor admitted that she possessed no direct or conclusive evidence that she had been exposed to or infected by hepatitis C while in the employ of Babbitt, Dierenfield, or Holguin.

B. Procedural History

On October 7, 1996, Flor filed separate claims for workers' compensation benefits against Holguin/Island, Babbitt/ Crawford, and Dierenfield/Travelers,¹ allegedly arising out of a work-related injury "occurring" on April 17, 1996. Flor identified her "injury" as hepatitis C. On March 31, 1997, Flor filed separate claims for workers' compensation benefits against Holguin/Pacific, Dierenfield/Travelers, and Babbitt/Pacific, allegedly arising out of a work-related injury "occurring" on January 12, 1994. Again, she identified her "injury" as hepatitis C.

On December 2, 1997, the Disability Compensation Division of the Department of Labor and Industrial Relations (DLIR) heard Flor's five consolidated claims. On February 5, 1998, the Director rendered a decision denying Flor's claims on the basis that she "did not suffer any injury on January 12, 1994 or April 17, 1996, the dates listed as the date of injury on her claims." Flor filed a timely notice of appeal to the LIRAB on February 17, 1998.

On March 23, 1999, Holguin/Pacific filed a motion for summary judgment, alleging that they were entitled to judgment because, inter alia, Flor had admitted that she had not sustained a work-related injury on January 12, 1994. On March 29, 1999, Babbitt/Crawford filed a separate motion for summary judgment on the grounds that there was no evidence in the record that Flor had been exposed to the Hepatitis C virus while employed by Babbitt and that she had contracted the disease before Crawford's insurance coverage of Babbitt had commenced. The remaining Employers joined in Holguin/Pacific's motion.

On April 6, 1999, Flor filed a memorandum in opposition to Holguin/Pacific's motion for summary judgment, asserting both that genuine issues of material fact precluded the entry of summary judgment against her and that, based upon facts that were uncontroverted,² she was entitled to a finding that her claim was compensable.

The LIRAB conducted a hearing on the Employers' motions on April 7, 1999. In a decision and order filed on May 25, 1999, the LIRAB stated:

At the outset of the hearing, all of the parties stipulated that there were no genuine issues of material fact as to the issue of whether [Flor's] Hepatitis C condition arose out of and in the course of her employment with Drs. Holguin, Babbitt, and/or Dierenfield on January 12, 1994 or on April 17, 1996. All of the parties agreed that the issue of compensability was ripe for summary disposition by the [LIRAB]. The parties further stipulated that issues relating to statute of limitations and notice of claim would not be addressed by the [LIRAB] in ruling on the motions for summary judgment.

There being no genuine issue of material fact, we grant the motions for summary judgment in favor of [the Employers] and affirm the Director's denial of compensability of [Flor]'s claims for injury on January 12, 1994 and/or April 17, 1996.

However, the transcript of the hearing does not reflect that any express stipulations were entered on the record, and the record is devoid of any further information regarding the purported stipulations.

The LIRAB entered the following relevant findings of fact (FOFs):

13. [Flor] did not contract Hepatitis C on January 12, 1994, or on April 17, 1996.

14. . . . There is no evidence and [Flor] does not allege that her employment with Holguin/Pacific, or Holguin/Island, or Babbitt/Crawford exposed her to Hepatitis C on January 12, 1994, or on April 17, 1996.

15. . . . There is no evidence and [Flor] does not allege that her employment with Dierenfield/Travelers or Babbitt/Pacific exposed her to Hepatitis C on January 12, 1994.

16. [Flor] did not sustain or suffer any injury on January 12, 1994, or on April 17, 1996.

The LIRAB entered a single conclusion of law (COL), as follows:

[W]e conclude that [Flor] did not sustain a personal injury on or about January 12, 1994, arising out of and in the course of her employment with Dr.

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