The claimant-appellant Kathleen M. Flor appeals from the decision and order of the State of Hawaii 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 compens-ability 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/Is-land]; and William R. Babbitt, D.D.S., and Crawford And Company [hereinafter, Bab-bitVCrawford]. 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
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 Hol-guin 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, Dieren-field, 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 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/Paeific 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/Pa-cific’s motion.
On April 6,1999, Flor filed a memorandum in opposition to Holguin/Pacifie’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 uneontro-verted, 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 compensa-bility 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 Dierenfleld/Travelers or Babbitt/Paeific 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. Dierenfield or Dr. Babbitt. We further conclude that [Flor] did not sustain a personal injury on or about April 17, 1996, arising out of and in the course of her employment with Dr. Holguin or Dr. Babbitt. [Flor’s] claims against Holguin/Pacific, Holguin/Island, Babbitt/Crawford, and Babbitt/Pacific, and Dierenfield/Travelers were properly denied.
On May 28, 1999, the LIRAB amended its COL to state 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. Dierenfield, Dr. Babbitt, or Dr. Holguin.” (Emphasis in original.)
Flor filed a timely notice of appeal to this court on June 26,1999.
II. STANDARDS OF REVIEW
A. Agency Decisions
Appellate review of the LIRAB’s decision is governed by Hawai'i Revised Statutes (HRS) § 91-14(g) (1993), which provides:
Upon review of the record the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are:
(1) In violation of constitutional or statutory provisions; or
(2) In excess of the statutory authority or jurisdiction of the agency; or
(3) Made upon unlawful procedure; or
(4) Affected by other error of law; or
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(6)Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
HRS § 91-14(g). “Under HRS § 91-14(g), [COLs] are reviewable under subsections (1), (2), and (4); questions regarding procedural defects are reviewable under subsection (3)[.]”
Potter v. Hawai'i Newspaper Agency,
A[COL] ... is not binding on an appellate court and is freely reviewable for its correctness. Thus, the court reviews [COLs] de novo, under the right/wrong standard.
Bumanglag v. Oahu Sugar Co., Ltd.,78 Hawai'i 275 , 279,892 P.2d 468 , 472 (1995) (quoting Tate v. GTE Hawaiian Tel Co.,77 Hawai'i 100 , 102-03,881 P.2d 1246 , 1248-49 (1994) (brackets in original)).
Kahana Sunset Owners Ass’n v. County of Maui,
B. Statutory Interpretation
“[T]he interpretation of a statute ... is a question of law reviewable de novo.” State v. Arceo,84 Hawai'i 1 , 10,928 P.2d 843 , 852 (1996) (quoting State v. Camara,81 Hawai'i 324 , 329,916 P.2d 1225 , 1230 (1996) (citations omitted)). See also State v. Toyomura,80 Hawai'i 8 , 18,904 P.2d 893 , 903 (1995); State v. Higa,79 Hawai'i 1 , 3,897 P.2d 928 , 930, reconsideration denied,79 Hawai'i 341 ,902 P.2d 976 (1995); State v. Nakata,76 Hawai'i 360 , 365,878 P.2d 699 , 704, reconsideration denied,76 Hawai'i 453 ,879 P.2d 558 (1994), cert. denied,513 U.S. 1147 ,115 S.Ct. 1095 ,130 L.Ed.2d 1063 (1995).
Gray v. Administrative Director of the Court,
When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.
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Gray,84 Hawai'i at 148 ,931 P.2d at 690 (quoting State v. Toyomura,80 Hawai'i 8 , 18-19,904 P.2d 893 , 903-04 (1996)) ... (footnote omitted). This court may also consider “[t]he reason and spirit of the law, and the cause which induced the legislature to enact it ... to discover its true meaning.” HRS § 1-15(2) (1993).
State v. Kotis,
III. DISCUSSION
A. Compensability Of Injuries Caused By Occupational Disease Under The Workers’ Compensation Law
The term “occupational disease” does not appear in the Workers’ Compensation Law.
Although our statute does not specifically have any provision regarding occupational disease, as do the workmen’s compensation acts of many States, an examination of these decisions is interesting and instructive because, in substance, we have the same law where the disease is “proximately caused by the employment.” (R. L.H.1955, § 97—3.[ 3 ])
“It is common knowledge that pulmonary tuberculosis is a disease to which the general public is exposed and it is not peculiarly an occupational disease in the sense that the courts have come to regard silicosis or painter’s lead poisoning, as examples. It may become an occupational disease, however, if it appears to have had its origin in a risk connected with the employment and to have flowed from that source as a consequence. It seems obvious that if one is employed in a sanatorium for the treatment of tuberculosis, contraction of the disease is a hazard to which the workman would not have been equally exposed outside the employment and therefore the disease is incidental to the business and not independent of the relation of the employer and employee.” (Evans v. Indiana Univ. Medical Center,100 N.E.2d 828 , 121 Ind.App. [679] 678 [1951].)
The court stated that if the industrial board had found that the claimant contracted tuberculosis during the course of employment, there was ample evidence to sustain such finding.
There are numerous other cases similarly holding tuberculosis is an occupational disease where it can be shown that the employee is more exposed than the general public. (Gray v. City of St. Paul,250 Minn. 220 ,84 N.W.2d 606 ; Board of National Missions v. Alaska Industrial Board,116 F.Supp. 625 , and cases cited therein.)
Fukuoka v. Dodo,
An accidental injury is distinguished from an occupational disease in that the former generally results from a discrete event—the time and place of which can be fixed—, while the latter generally develops gradually over a long period of time.
Booker v. Duke Medical Center,
As noted supra at note 4, HRS § 386-3 provides in relevant part that “[i]f an employee suffers personal injury ... by disease proximately caused by or resulting from the nature of the employment, the employee’s employer or the special compensation fund shall pay compensation to the employ-eel;.]”
We have traditionally construed HRS § 386-3 liberally in favor of conferring compensation because our “ ‘legislature has decided that work injuries are among the costs of production which industry is required to bear[.]’ ” Chung v. Animal Clinic, Inc.,63 Haw. 642 , 649,636 P.2d 721 , 726 (1981) (quoting Akamine v. Hawaiian Packing & Crating Co.,53 Haw. 406 , 409,495 P.2d 1164 , 1166 (1972)); Royal State Nat’l Ins. Co. v. Labor and Indus.Relations Appeal Bd., 53 Haw. 32 , 38,487 P.2d 278 , 282 (1971); see also Larson, 1B Workmen’s Compensation Law, § 43.51 (1993) [hereinafter, Larson] (“The theory of [workers’] compensation legislation is that the cost of all industrial accidents should be borne by the customer as a part of the cost of the product. It follows that any worker whose services form a regular and continuing part of the cost of that product ... is within the presumptive area of intended protection.”).
Moreover, “[workers’] compensation laws are highly remedial in character. Their paramount purpose is to provide compensation for an employee for all work-connected injuries, regardless of questions of negligence and proximate cause. Courts should therefore give them a liberal construction in order to accomplish their beneficent purposes.” Evanson v. University of Hawai'i,52 Haw. 595 , 600,483 P.2d 187 , 191 (1971) (emphasis added) (citations omitted).
Mitchell v. State Dep’t of Educ.,
Furthermore, HRS § 386-85 (1993) provides in relevant part that “[i]n any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary: (l)[t]hat the claim is for a covered work injury.” HRS § 386-1 (1993) defines “work injury” as “a personal injury suffered under the conditions specified in section 386-3,”
see supra
note 4. This statutory presumption in favor of compensa-bility supports the liberal construction of the Workers’ Compensation Law.
Ostrowski v. Wasa Elec. Services, Inc.,
HRS § 386-85(1) creates a presumption in favor of the claimant that the subject injury is causally related to the employment activity. As we previously explained in AJcamine, this presumption imposes upon the employer both the heavy burden of persuasion and the burden of going forward with the evidence.53 Haw. at 408 ,495 P.2d at 1166 . The claimant must prevail if the employer fails to adduce substantial evidence that the injury is unrelated to employment. The term “substantial evidence” signifies a high quantum of evidence which, at the minimum, must be “relevant and credible evidence of a quality and quantity sufficient to justify a conclusion by a reasonable man that an injury or death is not work connected.” Id. at 408-9,495 P.2d at 1166 ; Survivors of Timothy Freitas v. Pacific Contractors Co.,1 Haw. App. 77 , 85,613 P.2d 927 , 933 (1980).
The statute nowhere requires, as appellants suggest, some preliminary showing that the injury occurred “in the course of employment” before the presumption will be triggered. Rather, HRS § 386-85 clearly dictates that coverage will be presumed at the outset, subject to being rebutted by substantial evidence to the contrary. This is so in all claims proceedings, regardless of the existence of conflicting evidence, as the legislature has determined that where there is a reasonable doubt as to whether an injury is work-connected, it must be resolved in favor of the claimant. Akamine, supra at 409,495 P.2d at 1166 .
Chung,
In addition to the presumption of com-pensability, “the broad humanitarian purpose of the workers’ compensation statute read as a whole requires that all reasonable doubts be resolved in favor of the claimant,” DeFries v. Ass’n of Owners, [57 Haw. 296 ,] 304, 555 P.2d [855,] 860 [(1976)] (emphasis in original), for diseases arising from the nature of the employment are among the costs of production which industry must bear. See Akamine v. Hawaiian Packing, supra,53 Haw. at 409 ,495 P.2d at 1166 . Thus, an injury is compensable if it reasonably appears to have resulted from the working conditions.
Lawhead v. United Air Lines,
Liberal construction and the presumption of compensability notwithstanding, workers’ compensation law conditions an employer’s liability for an employee’s injury upon the injury’s causal “nexus” to the job.
See, e.g., Holt v. Acme Mattress Co. & London Guarantee & Accident Co.,
[flor an injury to be compensable under a workers’ compensation statute, there must be a requisite nexus between the employment and the injury. The nexus requirement is articulated in Hawai'i, as in the majority of jurisdictions, on the basis that, to be compensable, an injury must arise out of and in the course of employment.
Tate v. GTE Hawaiian Tel. Co.,
77 Hawai‘i 100, 103,
the court has adopted a “unitary” test that considers whether there is a sufficient work connection to bring the accident within the scope of the statute. First articulated in Royal State National Insurance Co. v. Labor and Industrial Relations Appeal Board,53 Haw. 32 ,487 P.2d 278 (1971), the work connection approach simply requires the finding of a causal connection between the injury and any incidents or conditions of employment. Chung,63 Haw. at 648 ,636 P.2d at 725 (citations omitted).
Id.
HRS § 386-3 provides that an injury “by accident” is compensable when the accident arises “out of or in the scope of the employment,” but an injury “by disease” is compen-sable when the disease is “proximately caused by or resulting from the nature of the employment.” Thus, the “nexus” requirement articulated in Tate, see supra, traces the language of the “injury-by-aceident” prong of HRS § 386-3. Similarly, the “work connection” requirement, as articulated in Tate, expressly pertains to accidental injury. As far as we can determine, however, this court has never before construed the causation requirements applicable to the “injury-by-disease” prong of HRS § 386-3.
A disease “resulting from the nature of the employment” is, by definition, an “occupational disease.”
See Komatsu v. Board of Trustees, Employees’ Retirement System,
However, “[a]n ailment does not become an occupational disease simply because it is contracted on the employer’s premises.... There must be a recognizable link between the disease and some distinctive feature of the claimant’s job, common to all jobs of that sort.”
Anderson v. General Motors Corp.,
We hold that an employee’s injury caused by a disease is compensable as an “injury by disease,” pursuant to HRS § 386-3, when the disease (1) is caused by conditions that are characteristic of or peculiar to the particular trade, occupation, or employment,
Booker,
B. The “Date of Injury” In Occupational Disease Claims Under The Workers’ Compensation Law
HRS § 386-82 (1993)
6
establishes the time within which a claimant must file a claim under the Workers’ Compensation Law. In
Hayashi v. Scott Company,
The Employers in the present matter initially contended that Flor’s claims were untimely filed. For reasons not disclosed by the record, the parties stipulated that the LIRAB would not resolve the timeliness issue in its ruling on the Employers’ motions for summary judgment. Nevertheless, we note that the statute of limitations on Flor’s claims would not have begun to run until her discovery that she had contracted hepatitis C,
see Hayashi, supra,
which, she asserts, occurred on April 17, 1996—Flor’s self-iden
tified
Occupational disease cases typically show a long history of exposure without actual disability, culminating in the enforced cessation of work on a definite date. In the search for an identifiable instant in time which can perform such necessary functions as to start claim periods running, establish claimant’s right to benefits, determine which year’s statute applies, and fix the employer and insurer liable for compensation, the date of disability has been found the most satisfactory. Legally, it is the moment at which the right to benefits accrues; as to limitations, it is the moment at which in most instances the claimant ought to know he has a compen-sable claim; and, as to successive insurers, it has the one cardinal merit of being definite, while such other possible dates as that of the actual contraction of the disease are usually not susceptible to positive demonstration.
Lowery v. McCormick Asbestos Co.,
Flor did not actually cease working until May 4, 1996. Thus, her “date of disability,” as construed pursuant to
Lowery,
would be May 4, 1996. Flor herself designated May 4, 1996 as the “date disability began.” However, April 17, 1996 was the date on which Flor recognized the “nature, seriousness[,] and probable compensable character,”
Hayashi,
at 12,
The date on which a claimant becomes totally disabled is a question of fact for the referee to determine on the basis of the evidence. Novak v. Mathies Coal Co., [29 Pa.Cmwlth. 122 ,370 A.2d 435 , 436-37 (1977) ]. The date disability begins is not automatically the date of last exposure [to an occupational hazard] or the date on which claimant is examined and determined by his doctor to be disabled.... Novak v. Mathies Coal Co., supra.
Gateway Coal Co. v. Workmen’s Compensation Appeal Board,
The [worker’s compensation] board may set as the date of disablement the date on which physical impairment in the nature of occupational disease was diagnosed. Where no medical finding of occupational disease is initially made but such condition is established upon later diagnosis, the board may properly set the date of the later diagnosis as the date of disability.
Barnett v. Edmur Baking, Inc.,
The determination of the precise date on which a claimant has become disabled due to an occupational disease is a factual determination to be made by the Director based on the circumstances of each case. However, the record in the present matter indicates that Flor’s cessation of work was directly related to her discovery of her hepatitis C diagnosis on April 17, 1996,' and, accordingly, the Director may consider that date to be Flor’s “date of disability” for
It is generally held under workmen’s compensation acts that injury results when the right to compensation arises. Injury and compensable disability are more in the nature of synonymous terms than are date of injury and date of the accident. Thus, in Esposito v. Marlin-Rockwell Corp., [96 Conn. 414 ,114 A. 92 , 94 (Conn.1921)], it is said: “A compensable injury is an injury for which compensation is payable, and the date of such an injury is not the time of the accident or occurrence causing the injury, but the time ... when the right to compensation accrues.”
In Re Palama,
We hold that a claimant in a ease arising under the “injury-by-disease” prong of HRS § 386-3 may rely upon the foregoing “date of disability,” which typically is the last day of employment but, as indicated
supra,
may also be the date of diagnosis of the disabling condition, in order to identify the “date of injury” required by the DLIR in connection with the filing of a workers’ compensation claim. Flor was therefore justified in identifying either the date on which she learned of her diagnosis
(ie.,
April 17, 1996) or the date on which she ceased working (ie., May 4, 1996) as the “date of injury” on her claim form.
Cf. Nelson v. Industrial Comm’n,
On remand, the Director will be required to determine Flor’s “date of disability” for the purposes enumerated in this section. However, regardless of the outcome of that determination, Flor’s workers’ compensation claim was not foreclosed by the fact that she identified a different date as the “date of injury” on her claim form.
C. Application Of The Workers’ Compensation Law To Flor’s Occupational Disease Claim
Because Flor did not press the fiction that she had actually contracted hepatitis C either on April 17, 1996 or on January 12, 1994
(ie.,
second date that Flor initially identified on her claim form as the “injury date”), and because she was, in fact, willing to acknowledge that she had not contracted the virus on those dates, the LIRAB found that Flor “did not sustain or suffer any injury” on either of those dates. The LIRAB therefore mechanistically concluded,
a fortio-ri,
that Flor had not sustained an injury “arising out of or in the course of her employment” with the Employers on those dates and that, as a consequence, the Employers were entitled to summary judgment
First, as we have noted, an injury caused by a disease is compensable under the Workers’ Compensation Law when the disease is “proximately caused by or result[s] from the nature of the employment.” See HRS 386-3, supra note 4. The statute does not speak of injuries generically “arising out of and in the course of employment,” but, rather, of “personal injury ... by accident ... or by disease.” Id. The distinction between the injury itself and the occurrence giving rise to it may not be significant when the occurrence is an “accident” because the injury generally manifests itself contemporaneously with the accident causing it. However, the distinction is critical when the occurrence gives rise to a disease. As we indicated supra in section III.A, a worker’s compensation claim premised on a disease such as hepatitis C, should, in general, be deemed an “injury-by-disease” claim. The LIRAB’s COL treated Flor’s “injury by disease” claim as if it involved an “injury by accident.”
Second, the LIRAB erred in finding that there was no genuine issue of material fact as to whether Flor had suffered an “injury” on April 17, 1996, inasmuch as the factual questions regarding the relationship between Flor’s hepatitis C diagnosis and both her employability as a dental hygienist and her ability to work in general were not resolved. Moreover, as discussed supra in section III.B, Flor’s workers’ compensation claim was not foreclosed merely because she asserted that the date on which she discovered her disease was the date of injury.
Third, the LIRAB mistakenly assumed that the unknown date on which Flor first contracted the hepatitis C virus was the “date of injury.” Obviously, the contracting of a virus does not, in and of itself, constitute a compensable injury. A compensable inju ry—ie., a disability from work—typically occurs well after the virus has first entered the claimant’s bloodstream. This is especially true in the case of a virus, such as hepatitis C, that remains asymptomatic for decades and, indeed, may never manifest itself. Accordingly, whether Flor contracted the virus on the precise.date of her claimed injury is not dispositive of the compensability of her claim.
Finally, fourth, the LIRAB failed to apply the statutory presumption, set forth in HRS § 386-85, in .favor of the compensability of Flor’s claim. In this connection, the medical opinions adduced by the parties corroborated, rather than rebutted, the proposition that Flor’s risk of contracting hepatitis C as a dental hygienist exceeded the risk of contracting the disease by virtue of employment or life in general. Moreover, the medical opinions proffered by the Employers suggested, at most, an inability to pinpoint the precise cause of Flor’s hepatitis C. Such opinions were insufficient to rebut the presumption that Flor’s employment as a dental hygienist contributed to the development of her disease.
See Jeannette District Memorial Hospital,
Nevertheless, the Employers argue that, because some of the physicians opined that Plor probably acquired the virus during the early 1980s—or even in the 1970s—, the employers for whom Flor commenced employment after those time periods lacked a sufficient connection with her disability to be liable for the payment of any workers’ compensation benefits. This argument would more properly be raised by the Employers in a proceeding regarding allocation of liability among Flor’s employers and/or the Special Compensation Fund, see infra note 10, for her compensation. However, we offer the following observations:
“[A] medical man may give a generalized opinion that there was no connection between an incident at work and a heart attack, and, in his own mind, may mean thereby that a pre-existing pathological condition was the overwhelming factor in bringing about the attack and that the part played by the work was insignificant. But, while it may be sound medically to say that the work did not ‘cause’ the attack, it may well be bad law, because, in general, existing law treats the slightest factor of aggravation • as an adequate ‘cause.’ ” McNiece, Heart Disease and the Law 135 (1961).
[Akamine,]53 Haw. at 410 ,495 P.2d at 1167 . The primary focus of medical testimony for the purposes of determining legal causation should be whether the employment' situation in any way contributed to the employee’s injury. Id. at 412,495 P.2d at 1168 . Testimony that a pre-existing heart disease may have been a contributing or precipitating cause of the heart attack should be accorded little probative weight. Id. The only relevant inquiry is whether [claimant’s] heart attack in fact was aggravated or accelerated by his work activity. Id. at 413,495 P.2d at 1169 .
Chung,
While it may be true that Flor was first exposed to the hepatitis C virus early in her career as a dental hygienist, the record establishes that her contact with potentially contaminated blood continued throughout her employment with the Employers. The testimony adduced by the parties focused on the time when Flor originally contracted the disease. However, nothing in the record suggests that subsequent exposures did not contribute to the ongoing progression of the disease. Ultimately, the cause of Flor’s hepatitis C and its precise relationship to each of her employers remains unknowable. None of the Employers, however, carried their burden of demonstrating that Flor’s employment with them did not contribute to her disability.
D. Apportionment Of Liability Among Employers
On remand, the Director will be faced with the task of determining which of the Employers are liable for the payment of Flor’s workers’ compensation benefits and the allocation of such liability. We note that the Workers’ Compensation Law does not contain any express provisions regarding apportionment of liability among multiple employers.
See Kalapodes v. E.E. Black, Ltd.,
In
Kalapodes,
the claimant sustained back injuries while in the employ of several consecutive employers, ultimately resulting in a permanent disability from work. He initially filed a workers’ compensation claim against his last employer, but later joined the previous employers. The LIRAB determined that twenty-five percent of Kalapodes’s disability was due to the injury received while working for one employer, five percent was due to the injury received while working for another, and the remaining seventy percent was not work-related, and ordered that the two employers pay him corresponding permanent partial disability compensation in accordance
In the context of workers’ compensation claims arising out of injury caused by an occupational disease, we have noted in the past that the LIRAB has adopted the “last injurious exposure” rule to assign liability as between successive employers of the claimant.
Miyake v. Welders, Inc.,
The last injurious exposure rule is the majority rule in successive employer or insurer cases, either by judicial adoption or by express statutory provision. Larson [Workmen’s Compensation Law], supra § 95.20 [ (1984) ]. It has been utilized in occupational disease cases including those involving asbestosis, silicosis, pneumoconiosis, tuberculosis, arthritis, dermatitis, occupational loss of hearing, and various other diseases produced by inhalation of chemicals and fumes. Id at § 95.24. The last injurious exposure [rule] is particularly useful for allocating liability in occupational disease cases, which often involve a number of employers and insurers. Id.
The rule avoids the necessity for identification of all employers and insurers as well as the assessment of the proportion of exposure during each employment and thereby prevents frequent and protracted delays in payments to claimants. See, Lowery v. McCormick Asbestos Company,300 Md. 28 ,475 A.2d 1168 , 1174; Inkley v. Forest Fiber Products Company,288 Or. 337 ,605 P.2d 1175 (1980) and Larson, supra, § 95.24. Most courts have felt constrained to interpret the workers’ compensation laws to adopt such a rule so as to best serve the interests of employees whosuffer from occupational disease, rather than to attempt an adjustment of their rights in the light of equities that may exist between successive employers. See Wilson v. Van [Buren] Burner County, 198 Tenn. 179 ,278 S.W.2d 685 (Tenn.1955). Even though the liability imposed under this rule can have a harsh result in a particular case, it is believed that there will be a spreading of the risk when the total picture of occupational disease litigation is considered on an industry-wide, long term basis. Osteen v. A.C. & S., Inc.,209 Neb. 282 ,307 N.W.2d 514 (1981); Cordero v. Triple A Machine Shop,580 F.2d 1331 (9th Cir.1978); Travelers Insurance Company v. Cardillo,225 F.2d 137 (2nd Cir. 1955); Lowery, supra; and Larson, supra, § 95.24.
Another possible solution to the successive employer or carrier problem would be to apportion liability among all causative employers and their insurers on the basis of the employee’s proportionate exposure to causative factors during each employment or coverage. As Professor Larson observes, this “would be the ideal theory in a perfect world, i.e., a world in which all previous insurers were within the jurisdiction of the board, and the proportion of disability which occurred when each was at risk could be easily measured.” Larson [at] § 95.12 (footnotes omitted). In summing up the problems and complications of the apportionment solution, he states:
Obviously, however, this isn’t a perfect world and apportioning liability is complicated by such problems as out-of-state employers, statutes of limitations,, and the difficulty of determining the proportion of liability attributable to each insurer. This latter problem is further complicated by the necessity of determining who—the insurers or the employee—is to bear the burden of establishing the basis for apportionment. Nonetheless, apportionment is a frequently used solution.
See also, Osteen v. A.C. & S., Inc.,209 Neb. 282 ,307 N.W.2d 514 , 519 (1981); Tennessee Tufting Company v. Potter, [206 Tenn. 620 ]337 S.W.2d 601 , 602 (Tenn. 1960); Employers’ Mutual Liability Insurance Company v. McCormick,195 Wis. 410 , 217 N.W.738, 742 (1928); and Mathis v. State Accident Insurance Fund,10 Or. App. 139 ,499 P.2d 1331 (1972).
The last injurious exposure rule avoids most of the problems of the apportionment solution and because of this promotes efficient administration, speedy payment of claims, and, in most instances, provides the highest level of benefits for the claimant.
Gales,
The Louisiana Supreme Court’s reasoning is persuasive. We note that, in amending HRS § 386-33 in 1982,
10
our legislature
[T]he legislature stated:
The purpose of this bill is to reduce the cost of administering workers compensation claims in those cases where the employee before his work injury suffers from a previous disability. While the bill will reduce administrative and legal costs connected with workers’ compensation claims, it will not reduce benefits paid to injured employees.
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Your Committee finds that Section 33 in its existing form contributes to the cost of workers’ compensation by introducing uncertainty as to whom should bear liability for work injuries, by encouraging litigation and by encouraging appeals to the Labor and Industrial Relations Appeals Board.
The section in its present form requires the director or the Appeals Board as the case may be to make a hypothetical and inherently difficult decision whenever a work injury combines with a previous disability to result in greater permanent partial or in permanent and total disability. In such cases the director or the board must quantify that disability which would have resulted from the injury without the previous disability. Often this determination is extremely difficult. Physicians frequently are unable to quantify the impairment before an injury and often disagree among themselves. Thus a good deal of uncertainty is injected into workers’ compensation cases making settlements less likely and promoting costly litigation.
The existing provisions of Section 33 also contribute to the cost of administering workers’ compensation claims by providing a strong incentive to employers to conduct an exhaustive search of the employee’s entire medical history in the hope of finding a previous disability. If earlier injuries or health problems are turned up, litigation with the Special Compensation Fund ensues.
Bumanglag,
The virtue, such as it is, of the last injurious exposure rule lies not in achieving individualized justice, but, rather, in the utility of spreading liability fairly among employers by the “law of averages” and in reducing the risk and cost of litigation.
Bracke v. Baza’r,
Where, as here, an employee is exposed to work conditions which activate or cause a progressive occupational disease, and the existence of such disease remains undisclosed and unknown over a period of time, it is impossible upon ultimate revelation of its existence by medical examination, work incapacity, or manifest loss of physical function, to pinpoint in retrospect, the triggering date of such activation or inception. It is also impossible to reconstruct the daily rate of progress of the disease from its genesis to discovery through one of the afore-mentioned means, where such employee continues to be exposed to work conditions which aggravate the existing disease in unascer-tainable stages. It follows that where the employment under such work conditions was under the aegis of successive employers or insurance carriers, from initial infection or activation to discovery or manifestation, it is impossible to accurately determine the inception and the rate of progress of the disease during such respective periods of employment or insurance coverage. Therefore, any apportionment of compensation liability between the successive employments or insurance coverages, must of necessity be speculative and arbitrary. To avoid the morass into which litigation would be pitched were apportionment required, and to eliminate the recognized unsatisfactory nature of any such attempted ascertainment, we conceive that the most workable rule and the most consistent with the philosophy and public policy of the Worker’s Compensation Act is to hold liable that employer or carrier during whose employment or coverage the disease was disclosed as above noted, i.e., by medical examination, work incapacity, or manifest loss of physical function. Although this test is admittedly arbitrary and may on occasion .cause some apparently unfair results, over the years it should result in an equitable balancing of liability. Under the circumstances we conceive it to be the fairest and most workable thesis.
[42 N.J. at 311 ,200 A.2d 322 ]....
The Supreme Court clarified Bond in Giagnacovo v. Beggs Bros., [64 N.J. 32 ,311 A.2d 745 (1973) ]. There the Court held that two of the stated criteria for manifestation of an occupational disease under Bond, ie., medical examination and manifest loss of physical function, “represent in substance two methods of revelation of a specific degree of physiological pathology—one which is fixed, arrested and definitely measurable.” Id. at 38,311 A.2d 745 . And see Akef v. BASF Corp., [140 N.J. 408 ,658 A.2d 1252 (1995) ] (“[w]hen there is evidence that a condition underlying a disability was obvious, diagnosable and capable of measurement, compensation for the resultant disability should be apportioned to or among those employers ... to cover the periods of prior employments during which the underlying condition was discoverable and measurable.” ... ).
Levas v. Midway Sheet Metal,
In our view the legislature is in a better position to determine what circumstances require [equitable] apportionment than we are. In the absence of a specific statute on the subject, however, it would appear to us to be applicable only in those rare cases in which substantial and almost uncontrovert-ed medical testimony will permit a' precise allocation of responsibility between or among different employers or insurers forthe employee’s disability. In any event, in any case in which the employment immediately preceding the employee’s temporary total disability is conceded to have been a contributing cause of such disability, the employee is entitled to receive full benefits promptly from the insurer then furnishing compensation coverage, whether or not the right to equitable apportionment against a former insurer or employer may exist.
Michels v. American Hoist & Derrick,
We hold 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 such diagnosis are liable for the payment of the employee’s workers’ compensation benefits. 11 We further hold that-subsequent employer and/or its insurer at the time of the employee’s diagnosis, are solely liable only if the contribution of the subsequent employment to the development of the disability is established by medical evidence and there is no rational basis for apportionment. Finally, we hold that if the medical evidence establishes a rational basis upon which to apportion liability among successor and/or predecessor employers and/or them insurance carriers and the apportionment will serve the interests of fairness to both the employers and the employee entitled promptly to receive the compensation, then the Director is authorized to order such an apportionment.
In the present matter, Flor’s hepatitis C was actually and conclusively diagnosed on January 12, 1994. Thus, her employers on that date are hable for the payment of the benefits relating to the claim that had accrued by the time the condition caused her to cease employment on May 4, 1996. However, the record reflects uncertainty as to the time and source of Flor’s initial infection and the possible contribution of Flor’s various employers to the disease’s development. Consequently, we do not believe that there is a basis for an apportionment of liability that would be less arbitrary than holding liable the employers at risk at the time of the diagnosis of Flor’s hepatitis C.
The foregoing analysis has been focused on determining the relevant date for purposes of assigning liability to Flor’s employers. We have applied a modified version of the last injurious exposure rule in holding that Flor’s employers and/or their insurers as of Janu
The last injurious exposure rule is not helpful in resolving the additional and distinct matter of apportioning the liability of multiple and
concurrent
(as opposed to
successive
) employers.
Riverboat Hotel Casino v. Harold’s Club,
The apportionment of liability among concurrent employers involves an exercise in fact-finding. Id. at 824 (citing Larson, § 48.50 (1996)). The Nevada Supreme Court, in Riverboat Hotel Casino, supra, held that, in concurrent employment situations, apportionment on the basis of each employer’s responsibility for wages was appropriate and that the employers were responsible for the injured employee’s claim in the same proportion as they contributed to her overall wages. Id. Similar results have been reached by several other courts. In Timmons, supra, the claimant was a dental hygienist, who worked part-time for two dentists from September 1991 until she was diagnosed with hepatitis B in February 1992. It was uncontested that hepatitis B was an occupational disease for health care workers, but both employers asserted that Timmons could not meet her burden of proving the particular dental office at which she had contracted the virus. The medical expert testimony established that Timmons, who tested negative for hepatitis B in January 1991 and did not present any risk factors other than her employment as a dental hygienist, had acquired the virus while in the employ of one of the dentists for whom she had worked since September 1991, but that it was impossible to determine which of the dentists it was or from which precise patient the disease had been contracted. The Timmons court held 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 from a specific employer, then both concurrent employers are liable. Any other result would violate the public policy of compensating employees for injuries sustained while working in the course of his or her employment. Apportionment of liability between two concurrent employers is a factual determination appropriately made by the Board.
We hold that in those circumstances, the Director may apportion liability among the liable employers. Furthermore, we agree with the courts that have approved the apportionment of liability in proportion to the wages earned by the employee in the employ of each of those employers. Such a rule is consistent with the general principle that workers’ compensation disability benefits are determined on the basis of the employee’s weekly earnings, see HRS § 386-31, and it is simple to apply, thereby reducing the risk and cost of the litigation respecting the liability of each of the concurrent employers.
IV. CONCLUSION
Based on the foregoing analysis, we vacate the LIRAB’s orders granting the Employers’ motions for summary judgment 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 the employers at risk on January 12, 1994, namely, Holguin/Pacific, Dierenfield/Travel-ers, and Babbitt/Pacifie.
Notes
. Flor subsequently withdrew her claim relating to the “April 17, 1996” work injury against Dier-enfield/Travelers.
.The “undisputed” facts that Flor cited to the LIRAB and this court were the following:
1. Flor has hepatitis C.
2. Flor cannot identify the date [on which] she contracted the illness, and it is not possible at this date to discover the date and manner of transmission.
3. Her profession and instrument sticks she suffered at work present identifiable risk of infection.
4. The first symptoms began in 1990.
5. No tests were available to identify hepatitis C before 1990, and no reliable tests existed before 1992.
6. The usual course of hepatitis C is asymptomatic for the first 10-20 years, except for an initial acute phase.
7. Given Flor’s current condition, it is probable that she contracted the disease prior to 1990.
. R.L.H. § 97-3 (1955) provided in relevant part:
If a workman receives personal injury by accident arising out of and in the course of the employment or by disease proximately caused by the employment, or resulting from the nature of the employment, his employer or the insurance carrier shall pay compensation in the amounts and to the person or persons hereinafter specified.
. HRS § 386-3 (1993) provided in relevant part:
If an employee suffers personal injury either by accident arising out of and in the course of the employment or by disease proximately caused by or resulting from the nature of the employment, the employee’s employer or the special compensation fund shall pay compensation to the employee or the employee's dependents as hereinafter provided.
(Emphasis added.) In 1998, the statute was amended in respects not material to the present appeal. Inasmuch as Flor suffered her disability in 1996, the pre-amendment version of the statute is controlling. See infra section III.B.
HRS § 386-1 (1993 & Supp.1999) defines " '[e]mployment’ [to] mean[ ] any service performed by an individual for another person under any contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully entered into."
. The claimants in Timmons and Hansen suffered from hepatitis B, but the analysis set forth in those cases applies equally to hepatitis C.
. HRS § 386-82 provides in relevant part: The right to compensation under this chapter shall be barred unless a written claim therefor is made to the director of labor and industrial relations (1) within two years after the date at which the effects of the injury for which the employee is entitled to compensation have become manifest, and (2) within five years after the date of the accident or occurrence which caused the injury.
. We defer the discussion of the "identifiable instant in time to ... fix the employer and insurer liable for compensation” to section III.D, infra.
. HRS § 386-32(a) (1976) provided in relevant part:
In cases in which, the permanent partial disability must be rated as a percentage of total loss or impairment of physical or mental function of the whole man the maximum compensation shall be computed on the basis of the corresponding percentage of the product of 312 times the effective maximum weekly benefit rate prescribed in section 3 86-31.
A substantially identical provision is contained in the current Workers' Compensation Law. See HRS § 386-32(a) (1993 & Supp.1999).
. HRS § 386-33 (1976) provided in relevant part:
If an employee receives an injury which of itself would cause a permanent partial disability but which, combined with a previous disability, results in a greater permanent partial disability or in permanent total disability, the employer shall pay compensation only for such disability as would have been caused by the injury without the previous disability. The employee shall be entitled to full compensation for his actual permanent partial or total disability, and, after receipt of the compensation payable by the employer, weekly payments of the balance of the compensation to which the employee is entitled shall be made out of the special compensation fund by orders of the director of labor and industrial relations.
. Compare HRS § 386-33 (1976), supra note 8, with HRS § 386-33 (1993 & Supp.1999), which provides in relevant part:
(a) Where prior to any injury an employee suffers from a previous permanent partial disability already existing prior to the injury for which compensation is claimed, and the disability resulting from the injury combines with the previous disability, whether the previous permanent partial disability was incurred during past or present periods of employment, to result in a greater permanent partial disability or in permanent total disability or in death then weekly benefits shall be paid as follows:
(1) In cases where the disability resulting from the injury combines with the previous disability to result in greater permanent partial disability the employer shall pay the employee compensation for the employee’s actual permanent partial disability but for not more than one hundred four weeks; the balance if any of compensation payable to the employee for the employee's actual permanent partial disability shall thereafter be paid out of the special compensation fund; provided that in successive injury cases where the claimant’s entire permanent partial disability is due to more than one compensable injury, the amount of the award for the subsequent injury shall be offset by the amount awarded for the prior compensable injury;
(2) In cases where the disability resulting from the injury combines with the previous disability to result in permanent total disability, the employer shall pay the employee for one hundred four weeks and thereafter compensation for permanent total disability shall be paid out of the special compensation fund; and
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(b) Notwithstanding subsection (a), in the case of permanent total disability or death, where the director or the appellate board determines that the previous permanent partial disability amounted to less than that necessary to support an award of thirty-two weeks of compensation for permanent partial disability there shall be no liability on the special compensation fund, and the employer shall pay the employee or the employee’s dependents full compensation for the employee's permanent total disability or death.
. We emphasize that, under the last injurious exposure rule, the "determination of liability is not dependent upon the date of disability,”
Crabill,
. HRS § 386-51.5 provides:
Limited liability in concurrent employment. Where an employee is concurrently engaged in more than one employment covered by this chapter and sustains a personal injury in one employment under conditions specified in section 386-3, the liability of the employer shall be limited to the benefits as would be payable had the employee no other employment than the one in which the employee was injured. The balance of the employee’s benefits shall be paid from the special compensation fund, except that benefits for disability rated as a percentage of total impairment of physical or mental function of the whole person shall be the sole liability of the employer.