During her 30-year career as a dental hygienist, Kathleen Flor worked for many dentists. In 1990, a test for hepatitis C came back negative, even though she was treated for symptoms. Six years later, she tested positive, stopped working and filed for workers' compensation.
She had no idea how or when she contracted the disease. She may have been infected a decade before she tested positive. But her work with sharp instruments and blood put her at increased risk, making it an occupational disease.
Hawaii's labor board, like those of many states, uses a "last injurious exposure rule." That places liability for workers' comp benefits with the employer or insurance carrier at the time the worker was last exposed to a cause of the disabling disease. The theory is that this is a fair way to spread liability, avoid delays in paying claims and reduce litigation costs, even though there's no proof that's where the worker caught the disease.
Three dentists that Flor worked for when she first tested positive will share ?any workers' comp costs, the court said. (Flor v. Holguin, No. 22641, S.Ct. Hawaii, 2000)
Advice: Even the court in this case agreed that the last injurious exposure rule makes dividing liability "speculative and arbitrary." To protect yourself, review the coverage of your workers' comp insurance. If you are in a business prone to occupational disease, such as arthritis, hearing loss and ailments caused by inhaling fumes and chemicals, be sure that your workers' comp coverage is adequate if some of your current workers make claims based on exposure throughout their career.
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