dissenting:
The arbitrator, the Industrial Commission, and the circuit court of Cook County found that there was no causal connection between the employee’s contracting hepatitis and her employment.
Dr. Payne, the chief of liver diseases at Rush Presbyterian-St. Luke’s Hospital testified that dentists, pathologists, and surgeons who are actively involved in patient care acquire hepatitis B infection at the rate of 10% per decade of practice. He knew of no data as to nurses in the position of the employee in this case but indicated that the risk of the doctors would be greater than that of a scrub nurse or a circulating nurse who is exposed once a week. He further testified:
“[T]hat the likelihood of her acquiring the infection during this three-year period, without a specific instance of acute hepatitis to give us clues as to when it happened and to narrow down exactly when it took place, weakens the case that it occurred in the operating room, since it is clearly transmitted through sexual contact, throughout types of intimate contact. We really have to know much more about her history throughout this time, and also the serology, the hepatitis B status of intimate contact over this period of time to make any strong conclusions.”
He was also specifically asked whether he had a medical opinion to think that it was more probable than not that it might or could be related to her employment and his answer was “I don’t know.”
It is clear that there was sufficient testimony presented to the Industrial Commission that its decision is not against the manifest weight of the evidence. The mere possibility that a person may have become infected with a disease in the course of her employment is not sufficient to warrant an award of compensation. Cook County v. Industrial Comm’n (1973), 54 Ill. 2d 79, 275 N.E.2d 465.
As stated by the trial court in affirming the Industrial Commission decision:
“There being no evidence of actual exposure in the work place, no record of medical history of prick wounds to support Petitioner’s self serving testimony, and conflicting medical opinion of causation the Commission’s finding of failure to prove a compensatable [sic] occupational disease is not against the manifest weight of the evidence nor a contrary to the law.”
To say that the risk or potential to get hepatitis is sufficient regardless of any direct link will open the floodgates to recovery. If there is no need to establish a direct link between the work and the disease then a worker would never need to establish how the disease was contracted. The majority in effect sets forth an irrefutable presumption as to health care workers. In this case, the employee simply made no showing that the disease arose out of her employment.
As stated above, there was more than sufficient evidence before the Commission to find as it did and the trial court and the Industrial Commission should be affirmed.
McNAMARA, J., joins in this dissent.