Workers’ Compensation and
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,
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
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.
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
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
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
The employer has the burden
to demonstrate by substantial evidence that these
conditions are not present.
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
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
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
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’
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
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
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.