Ada McNutt v. State of Illinois

The complaint, which was filed on September 4, 1945, alleges that claimant was employed by the Department of Public Welfare of the State of Illinois in the capacity of attendant at the JacksonvilIe State Hospital, Jacksonville, Illinois, for the period from February 5, 1935 through the month of April 1944; that in April 1944 claimant was forced to discontinue her employment by reason of the disease of tuberculosis which claimaiit alleges arose out of, during the course of, and by reason of her employment by respondent. Claimant claims compensation under the Occupational Disease Act of the State of Illinois.

The record shows that claimant was given a physical examination at the time she was employed in 1935, which she satisfactorily passed ; that during her employment as an attendant she worked alternately in and out of those [*20] wards handling tuberculosis patients, and that during the period of her employment she spent about two pears in tuberculosis wards. Her duties consisted of supervision of wards and meals, making beds, giving medicine, taking temperatures, giving baths, and serving food.

Her tubercular condition .was first discovered in November, 1941. She was examined again in 1942 and ill April, 1944. Claimant continued with her work until her April, 1944 examination, when she was told by Dr. Nady, who was employed by respondent, tliat the old cavity had reopened again. She was put to bed aiid remained there in her home for a period of seven moiiths, ulltil November, 1944. She then went to a hospital in Ottawa, Illiiiois where they collapsed a lung. She mas given a number of X-ray examinations and receired treatment by doctors on the hospital staff of Jacksoiiville State Hospital.

By stipulation, the follo~vingreport made hy Dr. R. H. Rundy, Dr. G. H. Vernon and Dr. Andrew Nady, the - Advisory Committee on Tuberculosis Control to the Department of Public Welfare, with respect to the case of claimant, was admitted into evidence : “Based upon the facts that this employee entered the employment of the Jacksonville State Hospital on February 5, 1935, and though there is no report of a medical examination made at the time of her entrance into the service, it is presumed that she was medically qualified for employment. The x-ray taken on 9/16/41 reveals in the right lung in the region of the fourth interspace, anterior, a cavity about 2 c.m. in diameter. This appears to be recent and probably has not been present as long as a year. It is our opinion that the s-ray findings are due to moderately advanced, pulmonary tuberculosis which is active. “The report from the Institution refers to the fact that this employee was assigned to wards where it is likely patients with tuberculosis were hospitalized. “It is the judgment of this committee that the presumption is strong that this illness grew out of the patient’s employment.”

With respect to claimant’s present condition, there is a report which was received on October 23, 1946 from [*21] the State Laboratory in Springfield, which reads as follows : “Dr. J. L. Smith

1201 South Main Stieet

Jacksonville, Illinois ~

“On August 30th we received a specimen of sputum submitted by you from your patien!, Mrs. Ada McNutt. This specimen was injected into a guinea pig at that time. To date this pig has remained well and healthy, and the autopsy on organs was normal. The result of the guinea pig inoculation is, therefore, negative for tuberculosis. “Culture-No acid fast bacilli were found.

Very truly yours, / s / H. J. SHA~GHNLSSY, Chief, Division of Laboratories.” l and Dr. Witten testified that from the said report claim

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ant is now able to be gainfully employed. I From the record, the Court is of the opiiiioii that I

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claimant contracted tuberculosis as a result of her em

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ployment and had an “occupational disease ” within thc

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meaning of Section 6 of the Workmen’s Occupational Diseases Act. The sole question remaining for determ- . I illation is whether claimant is elititled to receive com- I pensation under the provisions of this Act. I Liability would be determined either under Section 4

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of the Workmen’s Occupational Diseases Act, which provides for an election to come uiicler the Act, or under Section 3 of the said Act. This court has decided that the State is liable under the provisions of Section 3 of the Workmen’s Occupational Diseases Act (Marjorie TV7?ceZer v. State, 12 C. C. R. 254), butt that a claim to be compensable must he based on negligence by the State as defined in said Section 3. To establish negligence within the meaning of this section claimant must show respondent violated : (1) A rule or rules of the Industrial Commission made pursuant to the Health and Safety Act, or (2) Violated a Statute of this State intended for the protection of the health of employees.

[*22] Claimant argues that under Section 4 of the Occupational Diseases Act an employer may elect to provide and pay compensation according to the provisions of the Act by filing notice of such election with the Industrial Commission; that the Court of Claims supplants the Industrial Commission insofar as claims against the State are concerned; that it is impossible for 'the State to file a formal election under the Act, because there is no agency, I other than the, legislature, which has the authority to bind. the State by an election. Claimant further argues ' that the State is either automatically under the Act or automatically excluded from the Act as far as pavment of compensation to its employees for diseases arising out of State employment; that the legislature in passing the new Court of Claims Act iii effect July, 1945, giving thc court jurisdiction of claims for personal injuries or death arising out of and in the course of the employment If . of any State employees, the determination of which shall be in accordance with the substantive provisions of the Workmen's Occupational Diseases Act, mas in itself an election by the State to pay and provide compeiisatioii under the Occupational Diseases Act. Paragraph D of Sectioii 8 of the new Court of Claims Act is substai;tially the same as it mas in the old Act except that it formerly only specified claims to be determined under the provisions of the Workmen's Compensation Act, whereas it now covers claims to be determined under the substan- I tive provisions of both Acts. This court concluded that it had jurisdiction of claims arising under Section 3 of the Workmen's Occupational Diseases Act (Plarjorie T/T'lieeler v. State, s z c p m ) , and. the new Court of' Claims Act merely coiifirmed this by express statutory enactment: To conclude that this was ai1 election by the legislature for the State and to have the same effect as the * [*23] election by employers under Section 4 of the Workmen’s Occupational Diseases Act, would be construing the Act by reading into it something never intended by the legislature. If the legislature. intended to make an election, making employees of the State automatically under the work men"^ Occupational Diseases Act, it is reasonable to assume that it would have done so by amending the Workmen’s Occupational Diseases Act by providing as it did in the Workmen’s Compensation Act, Section S, which reads- “The provisions of this Act hereinafter following shall apply automatically and without election to the State, county, city, to1\7n7 tomiiship, incorporated village or school district, body politic or municipal corporation .. * * ” This court has interpreted that s e ~ , tion to mean that the Act applied automatically arid without election to the State. I To recover from the respoiicieiit under the Work- I

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men’s Occupational Diseases Act, claimant must show by , the evidence that the State is charged with negligence as defined in. Section 3 of the said Act.

From the record, this claimant has failed to do.

For the reasons stated, an award is denied.