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“The only thing necessary for these diseases to the triumph is for good people and governments to do nothing.”

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Workers’ Compensation and Hepatitis C

If an employee contracted the disease while working for another dentist, could you be required to pay compensation? That depends on the circumstances.

The Hawaii Supreme Court recently found three dentists liable for the workers’ compensation benefits of a dental hygienist diagnosed with hepatitis C—even though the hygienist may have contracted the disease before she was employed by some or all of the dentists.1

As this article was being written, the Hawaii court was reviewing motions to reconsider its ruling in this case.

The dental hygienist, Kathleen M. Flor, learned in April 1996 that she had hepatitis C. Although she was first treated for symptoms consistent with hepatitis in 1990, a hepatitis test performed in December of that year was negative.

She tested positive for hepatitis C in January 1994, but she did not learn the results of that test until 1996. Because of health problems resulting from the hepatitis C, Ms. Flor stopped working in May 1996.

In October 1996 and March 1997, Ms. Flor filed separate claims for workers’ compensation benefits against Drs. Carlos Richard Holguin, Douglas H. Dierenfield and William R. Babbitt, along with each of the dentists’ insurers.

Ms. Flor alleged that she had sustained a work-related injury, hepatitis C, but alleged different dates of injury in the 1996 and 1997 claims. In February 1998, the director of the Hawaii Department of Labor and Industrial Relations, or DLIR, found Ms. Flor had not been injured in January 1994 or April 1996, the dates listed on her complaints, and denied her claims. Ms. Flor appealed to the Hawaii Labor and Industrial Relations Appeals Board, or LIRAB.

Ms. Flor admitted before the LIRAB that she could not identify the date on which she was infected with hepatitis C, and that it was not possible to discover the date and manner of transmission. The LIRAB also found that she was not injured in January 1994 or April 1996 in the course of her employment with any of the three dentists. Ms. Flor appealed to the Hawaii Supreme Court.

In its review of the case, Hawaii’s high court considered physician opinions that Ms. Flor’s employment as a dental hygienist was a risk factor that, in the absence of other risk factors, indicated that she probably had acquired hepatitis C through work exposure to contaminated blood. However, some of the physicians noted risk factors other than work exposure to contaminated blood. Based on the stage to which Ms. Flor’s liver disease had progressed, the physicians found she probably had acquired the disease in the 1980s or earlier. Ms. Flor did not contest that she probably contracted hepatitis C before 1990.

Ms. Flor had worked as a dental hygienist since the 1960s, and was employed part-time by Dr. Babbitt from 1987 to 1996, by Dr. Dierenfield from 1989 to 1994 and by Dr. Holguin from 1991 to 1996. Ms. Flor sustained numerous injuries from her instruments throughout her career, including injuries occurring during her employment by the three dentists named in her complaints.

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The Hawaii Supreme Court began its analysis by noting that, unlike many other states, Hawaii’s workers’ compensation statutes do not mention "occupational disease." However, the court found Hawaii essentially has the same law in which a disease is "proximately caused" by a person’s employment.

The Hawaii court noted that state courts in South Carolina, Indiana, Louisiana, Pennsylvania and Virginia had recognized hepatitis C as an occupational disease for various professions. Also, the court observed, state courts in Delaware and Connecticut specifically recognized hepatitis B as an occupational disease for dental hygienists. In addition, an Oklahoma court concluded that hepatitis C could be a compensable accidental injury.

In Hawaii, the court found that the state’s workers’ compensation statutes contained a presumption that a claim is for a covered work injury—in the absence of substantial evidence to the contrary—and that there was a presumption favoring compensability.

The court found that the "injury by disease" portion of Hawaii’s workers’ compensation statute would be relevant to this case. An employee’s "injury by disease," the court held, would be compensable when the disease:

– is caused by conditions characteristic of or peculiar to the particular trade, occupation or employment;

results from the employee’s exposure to such working conditions;

– is due to causes in excess of the ordinary hazards of employment in general.

The employer has the burden to demonstrate by substantial evidence that these conditions are not present.

A dentist employer could be held responsible for payment of workers’ compensation benefits for a hygienist who appears to have contracted hepatitis through working in a dental office.

The Hawaii Supreme Court found that Ms. Flor’s claim should not have been dismissed merely because she claimed she was injured on the date she learned of her diagnosis. The LIRAB mistakenly assumed that the unknown date on which Ms. Flor first contracted hepatitis C was the date of injury.

Merely contracting a virus, the court reasoned, would not constitute a compensable injury under workers’ compensation law. Rather, the compensable injury occurs when a person becomes disabled and unable to work.

The Hawaii Supreme Court also found that the LIRAB failed to apply the statutory presumption in favor of awarding compensation. Medical opinions offered by the dentists may have suggested an inability to pinpoint the exact cause of Ms. Flor’s illness, but were not enough to rebut the presumption that her employment as a dental hygienist contributed to the development of her disease.

Thus, the dentists failed to show by substantial evidence that Ms. Flor’s claim was not compensable, and the Hawaii Supreme Court found she was entitled to workers’ compensation under Hawaii law.

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Furthermore, the court found that, while Ms. Flor may have first been exposed to the hepatitis C virus early in her career, the record established that she continued to have contact with potentially contaminated blood during the time she was employed by the three dentists in this case. The court ruled that none of the three dentists had demonstrated that Ms. Flor’s employment with them did not contribute to her disability.

The court went on to note that the LIRAB previously had adopted a "last injurious exposure" rule to assign liability among successive employers of a person entitled to workers’ compensation.

The court observed that this rule spreads liability fairly among employers by the "law of averages" and reduces the risk and cost of litigation. The court held that if an employee’s occupational disease is medically diagnosed and ultimately causes the employee’s work disability, then the employer and /or its insurer at the time of diagnosis are liable for payment of the employee’s workers’ compensation benefits.

The court ruled, however, that the subsequent employer and /or its insurer at the time of diagnosis were solely liable only if a connection between the subsequent employment and development of the disability is established by medical evidence, and there is no rational basis for apportionment.

In this case, since Ms. Flor’s hepatitis C was originally diagnosed in January 1994, the court found that her employers on that date were liable for payment of workers’ compensation benefits. The court found that, since the date of her original infection and the possible contribution of various employers to the development of the disease were unknown, there was no less arbitrary method for determining liability for workers’ compensation benefits.

The court determined that the DLIR director could apportion liability among the dentists, and noted that it agreed with other courts that had approved the apportionment of liability in proportion to the wages paid by the employer to the employee.

Similarly, the Connecticut and Delaware cases cited by the Hawaii Supreme Court held that a dental hygienist was entitled to workers’ compensation benefits after contracting hepatitis B, even though experts could not identify the exact time and place where the hygienist was infected.

The Connecticut Supreme Court reviewed a case in which a dental hygienist had agreed to stop working after she was diagnosed as a carrier of hepatitis B.2 The hygienist agreed with her employer, a dentist, that her condition posed a risk to patients.

In the subsequent case involving the hygienist’s claim for workers’ compensation benefits, the dentist did not dispute that it was likely that she was infected during the course of her employment, but did challenge an administrative body’s conclusion that hepatitis B was an occupational disease. The Connecticut court found that although hepatitis B could be transmitted outside the work-place, the disease was so distinctly associated with the profession of dental hygiene that it could be classified as an occupational disease.

The Delaware case involved a dental hygienist who worked for two dental facilities and contracted hepatitis B.3 The hygienist eventually filed for workers’ compensation benefits, and while neither employer challenged hepatitis B’s status as an occupational disease for health care workers, they both maintained that the hygienist could not prove where she contracted the virus.

Four medical experts had testified at the Delaware administrative hearing. All four agreed that it was impossible to determine where the hygienist had contracted hepatitis B. They said, however, that the virus had come from a single source or patient. One of the experts concluded that the hygienist had contracted the disease while working for one of the two dental facilities.

The Delaware court found that when an employee contracts an occupational disease while doing similar work for two concurrent employers, one employer can be held liable for the employee’s workers’ compensation benefits only if it can be shown that the occupational disease was contracted as a result of the employee’s work for that one specific employer. However, if it cannot be determined whether the employee contracted the occupational disease while working for a specific employer, then both concurrent employers are liable.

These cases indicate that a dentist employer could be held responsible for payment of workers’ compensation benefits for a hygienist who appears to have contracted hepatitis through working in a dental office, even if there is no definitive evidence that the hygienist contracted the disease while working in that particular dentist’s facility.

Dentists would be well advised to ensure that they have sufficient insurance to protect themselves in the event one of their hygienists is diagnosed with hepatitis.