{ "id": 1281374, "name": "BRENDA MASON, Plaintiff-Appellant, v. THE DEPARTMENT OF PUBLIC HEALTH et al., Defendants-Appellees", "name_abbreviation": "Mason v. Department of Public Health", "decision_date": "2001-12-19", "docket_number": "No. 5-00-0426", "first_page": "616", "last_page": "624", "citations": [ { "type": "official", "cite": "326 Ill. App. 3d 616" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "186 Ill. 2d 181", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243860 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "184" }, { "page": "184-85" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/186/0181-01" ] }, { "cite": "259 Ill. App. 3d 1027", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2869652 ], "weight": 5, "year": 1994, "pin_cites": [ { "page": "1028" }, { "page": "1031" }, { "page": "1032" }, { "page": "1033" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/259/1027-01" ] }, { "cite": "181 Ill. 2d 191", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821407 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "205" }, { "page": "205" }, { "page": "205" }, { "page": "205" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0191-01" ] }, { "cite": "298 Ill. App. 3d 634", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1073618 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "638" }, { "page": "637", "parenthetical": "the trial court properly vacated an arbitrator's award reinstating a nursing home employee charged with striking a resident, even though the employee's conduct consisted only of one incident of striking and caused no apparent injury to the resident" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/298/0634-01" ] } ], "analysis": { "cardinality": 735, "char_count": 18010, "ocr_confidence": 0.815, "pagerank": { "raw": 7.174884848986044e-08, "percentile": 0.42962041416314234 }, "sha256": "e618f47793e4cb037ff658a7abcf3a638c1bb60ef197aa2bb9db89831698e24c", "simhash": "1:6c9a2d5e8fdc4171", "word_count": 2923 }, "last_updated": "2023-07-14T21:10:13.053989+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BRENDA MASON, Plaintiff-Appellant, v. THE DEPARTMENT OF PUBLIC HEALTH et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE HOPKINS\ndelivered the opinion of the court:\nBrenda Mason (plaintiff) appeals from the trial court\u2019s affirmance of a final order of the Department of Public Health (the Department) finding that plaintiff abused a nursing home resident. The Department\u2019s decision was based upon the recommendation of an administrative law judge (ALJ). Plaintiff argues (1) that the ALJ\u2019s finding that plaintiff\u2019s conduct was not an isolated incident is against the manifest weight of the evidence, (2) that the ALJ\u2019s finding that plaintiffs conduct was in furtherance of teasing a nursing home resident is against the manifest weight of the evidence, and (3) that the ALJ\u2019s conclusion that plaintiff was guilty of abusing a nursing home resident is clearly erroneous. We affirm.\nFACTS\nAt the evidentiary hearing before the ALJ, the following pertinent evidence was presented. Lenitta Chandler testified that she was employed as a certified nurse\u2019s aide (CNA) at Saint Anne\u2019s Health Care Center (Saint Anne\u2019s), where she worked with plaintiff, who is also a CNA. Saint Anne\u2019s is a residential living facility for the elderly. Chandler described Saint Anne\u2019s as a \u201ctraditional nursing home setting.\u201d While employed at Saint Anne\u2019s, Chandler was acquainted with an elderly female resident by the name of Lola Juergens, who was alert but had some dementia. Other witnesses testified that Juergens suffered from Parkinson\u2019s disease.\nChandler described the incident for which plaintiff was accused of abuse, which involved Juergens, plaintiff, and another CNA, Susan Kastner. Chandler testified that she walked into a community room where the residents watch television with the staff. When Chandler walked into the room, Juergens- was sitting in a chair with a tray table in\u201d front of her. On the tray table was a glass of juice. Chandler testified that Kastner was sitting to the right of Juergens and plaintiff was sitting to the left of Juergens.\nChandler testified that when she entered the room, Kastner was poking Juergens in the ribs and that plaintiff \u201cwas doing this with her hair.\u201d When the attorney for the Department asked Chandler if Kast-ner and plaintiff were bothering Juergens by touching and poking her, Chandler replied affirmatively. Chandler stated that Juergens threatened to throw her glass of juice on \u201cher,\u201d but Chandler did not specify whether \u201cher\u201d referred to Kastner or plaintiff. Chandler testified that plaintiff continued \u201cdoing this\u201d with Juergens\u2019 hair, that Kastner continued poking Juergens in the ribs, and that Juergens then threw the glass of juice on plaintiff.\nChandler testified that after Juergens threw the juice on plaintiff, plaintiff became \u201cvery upset [and] jumped up and started cussing.\u201d According to Chandler, plaintiff said to Juergens: \u201cGod damn you. Look what you did to my pants. I ought to take you outside in the ice and let you freeze.\u201d Chandler also testified that plaintiff called Juer-gens a bitch. Chandler described Juergens\u2019 demeanor after the incident as \u201cshaking a great deal.\u201d\nConnie Res, a CNA at Saint Anne\u2019s for 26 years prior to the hearing, testified that she was on duty at the time of the incident. Res testified that she witnessed Kastner poking Juergens in the ribs. Res testified that Juergens told Kastner to quit but that Kastner \u201ckept it up.\u201d Res testified that she saw plaintiff \u201creach up and rub [Juergens] on the top of the head.\u201d Res also agreed that plaintiff told Juergens \u201cit will be okay\u201d as plaintiff rubbed her hand over Juergens\u2019 head one time. Res testified that Juergens threatened to pour the juice on plaintiff and then did so.\nKastner testified that her action of poking Juergens in the ribs initially caused Juergens to be upset and that Juergens was already upset when plaintiff came into the room and sat beside Juergens. Kastner testified that when plaintiff sat down, she rubbed Juergens\u2019 head and said: \u201cIt will be okay, Honey. It will be okay, Honey.\u201d Kast-ner testified that after Juergens threw the juice on plaintiff, plaintiff said, \u201cGod damn you, [Juergens], you threw juice on me.\u201d When Kast-ner was asked whether she normally teased residents, she replied, \u201cNo, not always; but once in a while, we have; yeah.\u201d Kastner denied that plaintiff said anything to Juergens about leaving her out in the cold.\nMark Trevathan was the registered nurse on duty the day of the incident. He testified that no one reported any problem with Juergens, plaintiff, or Kastner that day. He testified that he saw Juergens that day, after the incident, and he did not notice anything different about her behavior.\nOn July 7, 1999, the ALJ issued his report and recommendation, finding plaintiff subject to the jurisdiction of the Department pursuant to the Nursing Home Care Act (the Act) (210 ILCS 45/1 \u2014 101 et seq. (West 2000)), because she was employed as a CNA at Saint Anne\u2019s at the time of the alleged abuse \u2014 January 9, 1999. The ALJ determined that under section 1 \u2014 103 of the Act, abuse is defined as any physical or mental injury or sexual assault inflicted on a nursing home resident other than by accidental means (210 ILCS 45/1 \u2014 103 (West 2000)). The ALJ further found that under the Illinois Administrative Code, verbal abuse may be established by evidence that (1) the CNA used oral, written, or gestured language, (2) the language was disparaging or derogatory, and (3) the language was within the hearing or seeing of the resident (77 Ill. Adm. Code \u00a7 300.330 (2000)). The ALJ found also that mental abuse is established by acts including humiliation, harassment, threats of punishments or deprivation, or offensive physical contact. See 77 Ill. Adm. Code \u00a7 300.330 (2000).\nThe ALJ\u2019s report, in relevant part, is as follows:\n\u201cBased upon the uncontroverted facts cited herein and my evaluation of the credibility of the witnesses, I find that the [Department] has established by a preponderance of the evidence verbal abuse and mental abuse under [section 1 \u2014 103 of the Nursing Home Care Act] and 77 Ill. Adm. [Code] \u00a7 300.330 on the part of [plaintiff],\nCNA Kastner admitted that she poked Juergens in the ribs \u2018to tease\u2019 her. There is no rational explanation that would make such conduct a part of a CNA\u2019s appropriate care of a resident^] and no explanation was offered as part of the evidence. Kastner was in fact on her break at the time. It is disturbing that Kastner could poke a resident in a room full of CNAs and the only initial response from any of them was from [plaintiff] patting the resident on the head and saying[,] \u2018It will be okay[,] Honey[;] it will be okay\u2019. This leads me to the conclusion that this conduct was not an isolated incident. Kastner admitted as much in her testimony. [Plaintiffs] patting the resident on the head and her comments were not made for the purposes of soothing the resident, but to further the teasing. Under these circumstances, [plaintiffs] actions were disparaging, derogatory[,] and humiliating.\nThe claimant did not establish by [a] preponderance of the evidence that [plaintiff] called the resident a \u2018bitch\u2019, verbally threatened the resident, or physically abused the resident as charged. I find that the comments made by [plaintiff] after being hit with the orange juice did not amount to verbal abuse under the statute or regulations.\u201d\nOn August 30, 1999, the Department adopted and upheld the ALJ\u2019s recommendations. On June 12, 2000, the circuit court of Williamson County issued an order affirming the Department\u2019s order. Plaintiff appeals from the trial court\u2019s order.\nANALYSIS\n1. Finding That Plaintiffs Actions on January 9, 1999, Were Not an Isolated Incident\nPlaintiff contends that there is insufficient evidence to support the ALJ\u2019s finding that plaintiffs conduct was not an isolated event. The Department counters that there is sufficient evidence to support that finding but that, even if there is not, it does not matter, because plaintiff cites no legal authority in support of her contention. The Department points out that there is no rule requiring a course or pattern of abusive conduct toward nursing home residents in order for abuse to be found and that any such rule would contradict the Act\u2019s public policy, which is to protect nursing home residents from abxisive and degrading treatment, regardless of how infrequent or mild that treatment may be (County of De Witt v. American Federation of State, County & Municipal Employees, Council 31, 298 Ill. App. 3d 634, 638 (1998)). We agree with the Department.\nAbuse, for the purpose of determining whether there has been a violation of the Act, is defined as:\n\u201c[A]ny physical or mental injury or sexual assault inflicted on a resident other than by accidental means in a facility.\u201d 210 ILCS 45/ 1 \u2014 103 (West 2000); 77 Ill. Adm. Code \u00a7 300.330 (2000).\nSection 300.330 of Title 77 of the Illinois Administrative Code goes on to specify what constitutes a mental injury:\n\u201cMental injury arises from the following types of conduct:\nVerbal abuse refers to the use by a licensee, employee[,] or agent of oral, written[,] or gestured language that includes disparaging and derogatory terms to residents or within their hearing or seeing distance, regardless of their age, ability to comprehend[J or disability.\nMental abuse includes, but is not limited to, humiliation, harassment, threats of punishment or deprivation, or offensive physical contact by a licensee, employee[,] or agent.\u201d 77 Ill. Adm. Code \u00a7 300.330 (2000).\nGiven these definitions of abuse, we cannot find support for plaintiffs contention that abuse must consist of more than an isolated incident. The ALJ was not required under the Act to find that plaintiffs conduct consisted of more than an isolated event to find plaintiff guilty of abusing Juergens, a nursing home resident. Furthermore, Illinois has an \u201cestablished public policy\u201d of protecting the elderly from abuse and harm, and that policy would be thwarted if those caring for nursing home residents were allowed to abuse their elderly patients without a fear of reprisal simply because the abuse happened only once. County of De Witt, 298 Ill. App. 3d at 637 (the trial court properly vacated an arbitrator\u2019s award reinstating a nursing home employee charged with striking a resident, even though the employee\u2019s conduct consisted only of one incident of striking and caused no apparent injury to the resident).\nIn the instant case, the ALJ\u2019s conclusion that plaintiffs conduct was not an isolated incident was not essential to his finding of abuse. Based upon the law as stated in the Act and the public policy of protecting nursing home residents, we hold that it does not matter whether the incident involving plaintiff was an isolated incident or a part of a larger pattern of abuse.\n2. Characterization of Plaintiffs Conduct as \u201cTeasing\u201d\nPlaintiff argues that the ALJ\u2019s finding that plaintiffs actions were in furtherance of Kastner\u2019s teasing of Juergens gives \u201ca dark interpretation to innocuous words and gestures that is not justified by the facts.\u201d\nOur review of administrative findings and conclusions of fact, such as this, is limited to a determination of whether the findings are against the manifest weight of the evidence. City of Belvidere v. Il linois State Labor Relations Board, 181 Ill. 2d 191, 205 (1998). Those findings and conclusions of fact are deemed to be prima facie true and correct. City of Belvidere, 181 Ill. 2d at 205. On review, we are not allowed to substitute our judgment for that of the ALJ, nor may we weigh the evidence. City of Belvidere, 181 Ill. 2d at 205. The ALJ\u2019s conclusions of fact are to be accepted on review unless the opposite conclusion is clearly evident. City of Belvidere, 181 Ill. 2d at 205.\nThe Department responds to plaintiffs argument by pointing out that the uncontradicted eyewitness testimony of Chandler, Res, and Kastner supplied ample evidence from which the ALJ could reasonably conclude that plaintiff was participating in Kastner\u2019s teasing when plaintiff rubbed Juergens on the head and said: \u201cIt will be okay, Honey. It will be okay, Honey.\u201d The Department maintains that it does not matter that Kastner started the teasing but only that plaintiffs actions after Juergens was already agitated by Kastner could reasonably be interpreted as furthering Kastner\u2019s teasing.\nWe agree with the Department that there was ample evidence from which the ALJ could reasonably conclude that plaintiffs words and actions meet the definition of mental abuse, which includes but is not limited to humiliation, harassment, and offensive physical contact, and the definition of verbal abuse, which includes disparaging or derogatory language or gestures within the hearing or seeing of residents, regardless of their age, ability to comprehend, or disability (77 Ill. Adm. Code \u00a7 300.330 (2000)). The ALJ heard the witnesses testify and observed their demeanor when they described the incident. Clearly, the manner in which plaintiff was rubbing Juergens\u2019 head and speaking to her is a significant factor in how plaintiffs actions could be interpreted. It was certainly possible for the ALJ to interpret plaintiffs actions as intended to add to Kastner\u2019s humiliation and degradation of Juergens. Therefore, the ALJ\u2019s conclusion that plaintiff was abusing Juergens by teasing her is not against the manifest weight of the evidence.\n3. Legal Conclusion of Abuse\nPlaintiff finally argues that the ALJ erroneously determined that plaintiffs actions amounted to abuse. Plaintiff contends that there is no evidence that Juergens was injured by anything plaintiff said or did. According to plaintiff, an injury to the resident is a necessary element of a finding of abuse. Plaintiff cites the general definition of abuse from the Act \u2014 abuse means \u201cany physical or mental injury or sexual assault inflicted on a resident other than by accidental means\u201d (210 ILCS 45/1 \u2014 103 (West 2000)). Plaintiff also relies upon Alden Nursing Center \u2014 Morrow, Inc. v. Lumpkin, 259 Ill. App. 3d 1027 (1994), in support of this argument. Plaintiff is incorrect. Neither the Act nor the Lumpkin case supports her contention.\nFirst, the Illinois Administrative Code clearly sets forth the rule that \u201c[m]ental injury arises from\u201d verbal abuse, which means disparaging or derogatory language or gestures within the hearing or seeing of the resident, and from mental abuse, which means, inter alia, humiliation, harassment, or offensive physical contact. 77 Ill. Adm. Code \u00a7 300.330 (2000). Since a mental injury is defined to arise from conduct that is disparaging, derogatory, humiliating, harassing, or offensive, there was no reason for the ALJ to look for additional evidence of injury once he determined that plaintiff\u2019s behavior was disparaging, derogatory, and humiliating.\nOur overriding obligation in interpreting and applying statutory or regulatory provisions is to give effect to the legislative intent by first construing the plain meaning of the statutory language. See Davis v. Toshiba Machine Co., America, 186 Ill. 2d 181, 184 (1999). Where the statutory or regulatory provisions are clear and unambiguous, a court must give that plain language effect as written, without reading into it exceptions, limitations, or conditions that the legislature did not express. See Davis, 186 Ill. 2d at 184-85. The ALJ properly applied the clear and unambiguous language of section 300.330 in finding that plaintiffs conduct amounted to abuse.\nSecond, the Lumpkin case does not compel a different interpretation of the law. In that case, a nursing home sought the review of a ruling of the Department that found violations of the Act by the nursing home. Lumpkin, 259 Ill. App. 3d at 1028. The circuit court reversed the findings of the Department and the hearing officer. Lump-kin, 259 Ill. App. 3d at 1031. Although the Lumpkin case deals with provisions of the Act that pertain to regulations for nursing homes, rather than for nursing home employees, as in the instant case, the definitions of abuse and mental injury are essentially the same as those contained in section 300.330. See 77 Ill. Adm. Code \u00a7 260.1000 (2000). However, to find a violation of the Act when it is the nursing home that is charged instead of the nursing home\u2019s employee, there is an additional requirement that the nursing home must have operated or maintained its facility in a manner that is \u201cdirectly threatening to the health, safety[,] or welfare of a resident\u201d (210 ILCS 45/1 \u2014 130 (West 2000); 77 Ill. Adm. Code \u00a7 300.274(b)(2) (2000)). See Lumpkin, 259 Ill. App. 3d at 1032.\nTherefore, it is not surprising that in its reversal of the trial court\u2019s decision, the court in Lumpkin set forth the evidence of the injury to the resident. In explaining that reversal, the appellate court found that there was evidence that the nursing home\u2019s practices amounted to \u201ca direct threat to [the resident\u2019s] health, safety, and welfare, as sufficient for a \u2018Type B\u2019 violation.\u201d Lumpkin, 259 Ill. App. 3d at 1033. Thus, the Lumpkin decision is inapposite in that it deals with a violation of the rules regarding nursing home practices that include a requirement not found in the rules pertaining to violations committed by nursing home employees.\nTherefore, we reject plaintiffs contention that evidence of an injury to a resident is necessary beyond a finding that the resident was subjected to disparaging, derogatory, humiliating, harassing, or offensive conduct by a nursing home employee.\nCONCLUSION\nFor all of the reasons stated, we affirm the trial court\u2019s affirmance of the Department\u2019s order finding that plaintiff committed abuse within the meaning of the Act.\nAffirmed.\nGOLDENHERSH and WELCH, JJ, concur.", "type": "majority", "author": "JUSTICE HOPKINS" } ], "attorneys": [ "Robert E. Shaw, of Shaw & Martin, of Mt. Vernon, for appellant.", "James E. Ryan, Attorney General, of Chicago (Carol A. Cera, Assistant Attorney General, of counsel), for appellees." ], "corrections": "", "head_matter": "BRENDA MASON, Plaintiff-Appellant, v. THE DEPARTMENT OF PUBLIC HEALTH et al., Defendants-Appellees.\nFifth District\nNo. 5 \u2014 00\u20140426\nOpinion filed December 19, 2001.\nRobert E. Shaw, of Shaw & Martin, of Mt. Vernon, for appellant.\nJames E. Ryan, Attorney General, of Chicago (Carol A. Cera, Assistant Attorney General, of counsel), for appellees." }, "file_name": "0616-01", "first_page_order": 634, "last_page_order": 642 }