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05/17/89 Diane Sperling, v. the Industrial Commission

May 17, 1989





544 N.E.2d 290, 129 Ill. 2d 416, 135 Ill. Dec. 794 1989.IL.740

Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Mary M. Conrad, Judge, presiding.


JUSTICE RYAN delivered the opinion of the court. JUSTICE CALVO took no part in the consideration or decision of this case.


This is an appeal from the Industrial Commission Division of the Illinois Appellate Court. The claimant, Diane Sperling, filed an application for adjustment of claim under the Workers' Occupational Diseases Act (Ill. Rev. Stat. 1977, ch. 48, par. 172.36 et seq.). Claimant alleged that she contracted hepatitis arising out of and in the course of her employment as an operating room nurse at Rush-Presbyterian-St. Luke's Hospital (hospital). The arbitrator found that claimant had not established the requisite causal connection between her employment and her contraction of hepatitis. The Industrial Commission affirmed the arbitrator's decision to deny compensation. The circuit court of Cook County confirmed the Industrial Commission's decision. The appellate court reversed, holding that the Commission's determination that claimant had failed to establish a causal connection between her employment and disease was contrary to the manifest weight of the evidence. (171 Ill. App. 3d 714.) We granted leave to appeal and now reverse the decision of the appellate court and affirm the decision of the circuit court.

The facts presented before the arbitrator and the Commission are as follows. Claimant was hired by the employer, the hospital, as an operating room nurse in January 1978. She had been employed at another hospital as an operating room nurse for the five-year period preceding her employment with the hospital. Sometime toward the end of September 1978, claimant began feeling fatigued and sought medical attention. Dr. Michael Ramsey, one of the claimant's physicians, testified that he examined claimant on October 4, 1978, and at that time she complained of fever, headaches and fatigue, which had begun approximately two weeks before the examination. Because Dr. Ramsey noted that the claimant's eyes were yellowish, he ordered tests. When the results of the liver enzyme tests indicated evidence of hepatitis, Dr. Ramsey referred the claimant to Dr. John Payne, a liver disease specialist. Dr. Payne confirmed the diagnosis of hepatitis, and a liver biopsy performed in January 1979 indicated that claimant had contracted chronic persistent hepatitis B.

Claimant testified that she pricked herself at least once a week with sharp operating room instruments that had been exposed to patients' blood. Additionally, the claimant's nursing supervisor wrote a brief letter, which was introduced into evidence, confirming the likelihood of this type of event. Claimant, however, was unable to provide a description of even one incident where she had been pricked with an instrument containing a patient's blood. There was also no evidence that any patient with whom she worked was infected with hepatitis.

Dr. Ramsey testified that he believed that claimant had contracted the hepatitis through work-related activities. He based this Conclusion on articles and textbooks which stated that health care workers have a greatly increased risk of contracting hepatitis B due to exposure to infected patients' tissue and body fluids. Although claimant had recently traveled to Aruba, Mexico, and the Caribbean, and had been bitten by a parrot in Mexico, Dr. Ramsey testified that he did not believe that was the cause of the hepatitis. Dr. Ramsey based this Conclusion on the fact that hepatitis B is transmitted through physical contact with human -- not animal -- body fluids.

Dr. Payne testified that hepatitis B is transmitted through body secretions, through intimate sexual activity, and through the blood of an infected person. Dr. Payne was not able to conclude that claimant had contracted the hepatitis through her activities as an operating room nurse. Although Payne stated that the potential for infection in the operating room was present, he could not determine whether claimant had contracted the disease as a result of her employment without more information about her personal and sexual history.

After reviewing the testimony, the arbitrator determined that claimant had failed to meet the requisite statutory standard of proof of causal connection between her employment and the hepatitis. As noted above, this finding was affirmed by the Commission and confirmed by the circuit court. The appellate court reversed and remanded the cause to the Commission for a determination of the appropriate compensation to be accorded Sperling. (171 Ill. App. 3d at 719-20.) In reaching this decision, the appellate court stated:

"Although our courts have traditionally required direct proof that the claimant has in fact been exposed to a disease while employed (see County of Cook v. Industrial Comm'n (1973), 54 Ill. 2d 79, 275 N.E.2d 465; Lewis v. Industrial Comm'n (1967), 38 Ill. 2d 461, 231 N.E.2d 593; Byrd v. Industrial Comm'n (1965), 33 Ill. 2d 115, 210 N.E.2d 535; City of Chicago v. Industrial Comm'n (1949), 403 Ill. 105, 85 N.E.2d 665), we observe that the direct proof approach is too rigid for rote application because it fails to take into account situations where a health care worker could be exposed to an undetected disease carrier through an employment-related risk. Stated differently, it is illogical to require the establishment of a direct causal link when there is a prima facie showing that the disease easily could have been contracted by the health care worker during employment from an undetected source. We further note that the instant claimant could not possibly determine the precise exposure episode which caused her disease because she may not have developed symptoms until long after the incubation period.

After analyzing the applicable legal principles, we conclude that the ultimate issue of a health care worker's exposure to an occupational disease may be inferred from indirect proof when it is established that direct proof may be irrelevant. Since the Commission based its . . . factual determination on the assumption that claimant had to present direct proof that she was exposed to hospital patients with hepatitis B, we must re-examine the evidence to see if the indirect proof approach is applicable and, if so, whether the Commission's decision can be supported when the evidence is viewed under the indirect proof approach." 171 Ill. App. 3d at 719-20.

The above-quoted rationale of the appellate court raises several problems. First, the court appears to assume that the finder of fact required direct proof of an exposure to establish a causal connection between the employment and the disease. This is not the ...

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