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05/25/88 Diane Sperling, v. the Industrial Commission

May 25, 1988





525 N.E.2d 940, 171 Ill. App. 3d 714, 121 Ill. Dec. 633 1988.IL.816

Appeal from the Circuit Court of Cook County; the Hon. Mary M. Conrad, Judge, presiding.


JUSTICE CALVO delivered the opinion of the court. BARRY, P.J., and WOODWARD, J., concur. JUSTICE McCULLOUGH, Dissenting. McNAMARA, J., joins in this Dissent.


Claimant, Diane Sperling, filed an application for adjustment of claim under the Worker's Occupational Diseases Act (Ill. Rev. Stat. 1977, ch. 48, par. 172.36 et seq.), alleging that she contracted hepatitis out of and during the course of her employment with Rush Presbyterian-St. Luke's Hospital. The Industrial Commission affirmed the arbitrator's finding that claimant did not establish a causal connection between her employment and her disease. The circuit court confirmed. Claimant appeals, alleging (1) that the Industrial Commission's determination that a causal connection was not established is contrary to the manifest weight of the evidence; and (2) alternatively, that the Industrial Commission considered inadmissible evidence in making its determination. The facts are as follows.

Claimant currently suffers from chronic persistent hepatitis B, a viral infection of the liver which is contracted exclusively through intimate physical contact with the body secretions of an infected person, the usual mode of transmission being through blood contact. There is presently no known cure for this condition. The following evidence was admitted regarding this condition and the likelihood that it is causally connected to claimant's employment.

In January 1978, claimant was hired by the employer as an operating room nurse. Prior to this time, she had worked as an operating room nurse at another hospital for five years. Operating room nurses may be divided into two subcategories: scrub nurses and circulating nurses. Scrub nurses assist surgeons in the operating room; circulating nurses assist the medical personnel performing an operation from outside the perimeter of the operation procedure. Both jobs require the handling of sharp medical instruments which have been exposed to patient blood. Claimant testified that approximately once per week she pricked herself through the skin with these instruments. A written statement from claimant's nursing supervisor stated that claimant easily could have punctured herself or had small cuts on her hands while exposed to infected blood. Near the end of September 1978 claimant began feeling uncharacteristically fatigued, prompting her to seek medical attention.

On October 4, 1978, claimant was examined by Dr. Michael Ramsey, a physician specializing in internal medicine. Dr. Ramsey testified that claimant complained of fever, headaches and fatigue of approximately two weeks' duration. A physical examination revealed no abnormalities except red inflamed tonsils and yellowish eyes. Since yellowish eyes suggest the possibility of liver disease, Dr. Ramsey had a full battery of chemical tests performed to exclude hepatitis. The liver enzyme tests showed evidence of hepatitis. Dr. Ramsey then referred claimant to Dr. John Payne, a liver disease specialist, who confirmed Dr. Ramsey's diagnosis. A liver biopsy performed in January 1979 confirmed that claimant was suffering from chronic persistent hepatitis B. According to Dr. Payne, this condition increases the likelihood that claimant will develop liver cancer.

Dr. Ramsey testified to a reasonable degree of medical certainty that claimant's condition was caused by work-related factors. He based his opinion on "hundreds of articles, textbooks, [and] journal articles that show that people in the health care field, doctors and other medical personnel, specifically operating technicians, dialysis workers, [and] emergency workers, have a greatly increased incidence of hepatitis B, due to exposure to patients and the patients' tissues and body fluids." Although claimant related that she had recently traveled to Aruba, Mexico, and the Caribbean, and that a parrot had bitten her in Mexico, Dr. Ramsey did not believe that claimant contracted her hepatitis through contact with contaminated water or food, or the parrot bite, because hepatitis B is contracted exclusively through intimate physical contact with human body fluids. In this regard, claimant testified that she has never been an intravenous drug user and that her husband during this period did not contract the disease.

Dr. Payne testified that the incubation period of hepatitis B varies according to the mode of exposure and how one defines the onset of the disease. He stated that while the usual incubation period was seven to eight weeks, the period could be as little as seven days or as long as six months. However, the incubation period apparently does not coincide with the onset of symptoms because both Dr. Payne and Dr. Ramsey recognized that active carriers of the disease can be totally asymptomatic. Dr. Payne noted that since claimant had not had hepatitis symptoms between her 1975 blood donation (screening for the hepatitis B virus antigen in blood donations became widespread around 1974-75) and the time she was first diagnosed with the hepatitis B virus, it was difficult to pinpoint a precise time between 1975 and 1978 when she became infected. There is no evidence that such screening was in fact performed on claimant's blood donation.

In Dr. Payne's opinion, the inference is strong that claimant contracted hepatitis B from her employment because studies had shown that 20% of all operating room nurses had a past or current infection. However, he stated that he could not render an opinion that her employment was a probable cause of the disease because the statistical studies in existence relied upon exposures which would have occurred prior to when widespread screening for hepatitis B was put into effect (i.e., 1974-75). Furthermore, Dr. Payne believed that the incidence of infection among operating room nurses would be a great deal less than the 10%-per-decade incidence recorded among surgeons. Although Dr. Payne was not aware of any studies, he estimated that the incidence for operating room nurses would be somewhere in the range of 3% to 5% per decade. Dr. Payne testified that the carrier rate of the general United States population (i.e., those with contagious hepatitis B) is approximately .5%; however, persons with an oriental background have a carrier rate of about 20%.

Although an occupational disease need not be foreseeable or expected, it must appear to have had its origin or aggravation in a risk connected with the employment and to have flowed from that source as a rational consequence. (Ill. Rev. Stat. 1977, ch. 48, par. 172.36.) Because we are unaware of any Illinois case which specifically addresses the type of proof a health care worker must present to establish hepatitis as an occupational disease, we look to case law in foreign jurisdictions for guidance.

In Sacred Heart Medical Center v. Department of Labor & Industries (1979), 92 Wash. 2d 631, 600 P.2d 1015, an intensive care unit nurse who contracted hepatitis filed an industrial insurance claim alleging that her hepatitis was a compensable occupational disease. Relying upon the claimant's testimony that she had broken skin and cuts when she came into physical contact with human body secretions, claimant's testimony that she was neither sexually promiscuous nor an intravenous drug user, medical testimony that carriers of the disease may be undetectable, and medical testimony that she was more likely to contract hepatitis than a member of the general public, the finder of fact determined that claimant's hepatitis "[arose] naturally and proximately out of . . . employment" (92 Wash. at 632, 600 P.2d at 1016; Wash. Rev. Code 51.08.140 (1962)) and awarded benefits. The appeals court reversed the fact finder, stating that claimant's hepatitis was not compensable because she did not establish a causal link between her employment and the disease; ...

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