1-3-12; Drug-abusing former police sergeant sadly loses his job and the reviewing courts affirm the termination was appropriate

Our Illinois Appellate Court confirmed the longstanding rule factual findings in administrative decisions should only be reversed if against the manifest weight of the evidence. In Gorski v. Board of Fire and Police Commissioners of the City of Woodstock, 2011 IL App 2d 100808 (December 22, 2011), the Appellate Court indicated the Circuit Court properly affirmed the Board of Fire and Police Commissioners' termination of a former city police sergeant for abuse of prescription narcotic drugs as it was not against the manifest weight standard since sufficient evidence showed the sergeant violated his return-to-work agreement as well as violating an agreement with his doctors to not abuse narcotics and to not use them on duty. It was further noted the former sergeant also failed to sufficiently refute the prima facie case.

Procedurally, the initial hearing before the Board of Fire and Police Commissioners of Woodstock (Board) resulted in a directed finding in favor of Gorski—however thereafter Woodstock Chief Lowen filed a complaint for administrative review in the Circuit Court, the Circuit Court reversed the Board’s decision and remanded—this resulted in the “termination” decision from which these appeals arose. At that first hearing, there were multiple confirmations former sergeant Gorski sought prescription drugs from multiple sources as well as used same while on duty and failed multiple drug screens as well as failing to comply with a return to work agreement and violated an agreement with the Illinois Pain Institute regarding his treatment with Suboxone because of “his overall pattern of overlapping use and abuse of prescription narcotic drugs.”

Issues had arisen according to Chief Lowen when he testified on February 13, 2006, he met with Gorski and told him he was concerned Gorski was abusing prescription drugs, told Gorski it was not appropriate to take Vicodin while performing his duties as a sworn police officer and referred Gorski to the employee assistance program. Chief Lowen testified nearly a year later, on April 12, 2007, he met with Gorski to discuss Gorski’s “sick record” and use of prescription drugs. Chief Lowen required Gorski to submit to a drug urine screen which came back positive. Gorski told Chief Lowen he knew the screen would come back positive because he had received medication at an emergency room from a Dr. Gallant. Chief Lowen placed Gorski on paid administrative leave so Gorski could “seek counseling for his drug use and get things straightened out.” Chief Lowen told Gorski before he could return to work he would have to pass a fit-for-duty test, which included a urine screen. Chief Lowen received a letter from Dr. Martin Fortier clearing Gorski to work as of June 5, 2007 and indicated Gorski had been off pain medication for at least 10 days. Chief Lowen also testified on June 7, 2007, he and Gorski scheduled the fit-for-duty test for June 11, 2007 and his urine screen came back positive for hydromorphone. Gorski told Chief Lowen, before the urine screen, he had taken two Vicodin pills left over from Dr. Fortier’s prescription. He also told Chief Lowen, after the urine screen, he had taken two more Vicodin pills from the same prescription.

Chief Lowen testified on June 18, 2007, he presented Gorski with a return-to-work agreement that prohibited him from using controlled substances other than those prescribed by a physician; required him to use any controlled substance only in a manner consistent with the prescription set forth by the prescribing physician; required him to provide the police department with documentation concerning any prescribed medication indicating the medication would not interfere with his duties as a police officer; and required him to submit to drug testing within one hour of any such request. Chief Lowen ordered Gorski to submit to a urine screen on July 3, 2007, but he did not submit to the screen because of illness. On July 11, 2007, at Chief Lowen’s request, Gorski submitted to a urine screen, which came back negative. On July 17, 2007, Gorski signed the return-to-work agreement, and he returned to work the following day. On July 18, his first day back to work, he submitted to a urine screen; the results would take nine days. Chief Lowen testified, on the way to provide the sample, Gorski said he was not taking Vicodin and he would not take it. As proof, Gorski gave Chief Lowen an empty prescription bottle from Dr. Fortier. Gorski submitted to another urine screen on July 26. The following day, Gorski’s July 18 urine screen came back positive. On August 9, the July 26 urine screen came back positive. Chief Lowen never received documentation from a physician that Gorski’s medications would not interfere with his duties as a police officer.

Chief Lowen testified Gorski told him the drugs he took before the July 18 positive screen came from Dr. Fortier and the drugs he took before the July 26 positive screen came from his father, Dr. Gorski. Gorski told Chief Lowen his father gave him the drugs without a prescription. Chief Lowen testified the integrity of the City of Woodstock was adversely affected by Gorski’s failure to refrain from using prescription drugs and he recommended Gorski be terminated—at the remand hearing, termination was the decision of the Board.

To confirm, former Sergeant Gorski failed drug screens on:

·         April 6, 2006—positive for hydrocodone and hydromorphone

·         April 12, 2007—positive for hydrocodone and hydromorphone

·         June 11, 2007—positive for hydromorphone

·         July 18, 2007—positive for oxymorphone

·         July 26, 2007—positive for hydrocodone, hydromorphone, oxycodone, and oxymorphone

Initially the Appellate Court noted Gorski failed to recognize, in administrative review proceedings, they review the administrative agency's decision and not the decision of the Circuit Court. The Appellate Court noted they would review both findings of the administrative agency since the initial directed finding which was reversed on remand was not a final decision. The Appellate Court noted a motion for a directed finding must be denied if the plaintiff has presented a prima facie case. They also noted the manifest weight standard applied in the determination of whether a decision should be reversed by the Circuit Court. The Appellate Court found the record revealed Chief Lowen established a prima facie case Gorski abused prescription narcotic drugs and, in doing so, he violated the rules and regulations of the police department, the return-to-work agreement, and agreements he had with Dr. Rana at the Institute and with Dr. Purdy regarding his drug dependence treatment with Suboxone. The evidence established Gorski violated agreements four times. The Appellate Court further noted nothing in the record indicates Gorski’s misconduct was substantially related to his back injury. In violation of agreements with the police department and doctors, Gorski obtained by deceptive means multiple prescriptions for narcotic medications from multiple doctors and took these medications while on duty. He failed to provide the police department with the required documentation he was taking medication prescribed by physicians and the medication would not affect his ability to perform his duties.

Finally while Gorski argued the termination on the second Board decision was a result of the Circuit Court’s first decision, which was against the manifest weight of the evidence standard, he not only failed to recognize the Appellate Court was not bound by the Circuit Court's decisions, he also failed to cite authorities or pages of the record relied upon. The Appellate Court determined he had forfeited that argument for not setting forth a factual bases for such with citation to the record.

There are several takeaways from this ruling, including the important distinction that a decision is not appealable until it is final. It is also important to note the Appellate Court demands very specific and detailed guidelines for creating and arguing your appeals. In their comments in this case, they made it very clear they will not sift the record to attempt to determine if arguments find support in the record if the drafting party does not cite the record for their contentions. Finally, this case is a good example of why a party should present all applicable evidence they have in support of their case as the bulk of the evidence presented provided the support for the affirmation of the decision. Maybe most important, it is the belief of this commentator that individuals in a position of public safety should be held to a high standard. In this case it appears the appropriate steps were taken to attempt to allow the individual to help himself and his inability to appropriately do so, as well as his attempts to avoid culpability for his own actions, resulted in a termination which may not have been acceptable to the individual but was appropriate to protect the public at large.

1-3-12; No one was safe when the legislature was in session—lots of their skullduggery took effect yesterday

Here are a few of the new laws that just went into effect for all Illinoisans to now deal with:

·         Safe Patient Handling in Hospital and Healthcare facilities: Illinois' Public Law 97-0122 amends the Hospital Licensing Act to address safe patient handling policies, setting forth definitions and requirements with regard to strategies intended to control the risk of injury to patients and staff. What rhymes with “Patient Fork-Lift?” The new amendments, which went into effect yesterday, represent the first effort in Illinois to assure people with disabilities who need to be physically moved by hospital staff are protected. The amendments protect hospital nurses and all health care workers. Hospital patients are to now be informed of all the ways in which they may be lifted during their stay in any hospital facility. Restriction of lifting must be achieved to the extent feasible with existing equipment and aids while manual handling or movement of all or most of the patient’s body weight is to be done only during emergent, life-threatening, or otherwise exceptional circumstances. We are certain these protocols are going to limit work injuries among affected workers. Some of the other provisions include staff education and training and a procedure for a nurse to refuse to perform or be involved in handling or movement the nurse believes in good faith will expose the patient/resident, nurse or other health care worker to an unacceptable risk of injury without fear of retaliation. We recommend all hospital risk managers consider disputing unsafe lifting injuries as violations of enforced safety rules. We also feel it should be a lot easier to bring nurses and other workers back to “light duty” because all hospital work should now be “light-duty.”

·         Of the Government, by the Government and for the Government: IL HB 2590/PA 97-0380 prohibits any unit of local government or a county sheriff (formerly only the State) from contracting with a private entity to operate a correctional facility and thereby potentially save taxpayers any money. We have no idea why the IL State legislature felt compelled to hamstring local government units in managing prisons and jails but something makes us feel the hyper-aggressive Illinois state employee unions might have something to do with it. Until this law is repealed or taxpayers find out what is happening and vote to stop it, we assure our readers the Menard Correctional Center “scandal” with millions in taxpayer monies being paid as WC benefits to IL prison guards and other prison staff for “non-accident accidents” cannot be prevented by replacing uncontrollably inefficient government prison managers who also file lots of major WC claims and get six-figure settlements we all pay for.

·         Disability Definition expanded in the Illinois Human Rights Act. In HB 3010/PA 97-0410, the definition of discrimination in public accommodations now include mental, psychological, or developmental disabilities, including autism spectrum disorder. This impact of this new law is going to have to be on a wait-and-see review. We don’t think it will be major but one never knows.

·         Jury Duty: In HB 1317/PA 97-0436, our Legislature, in its wisdom, exempted people who have a total and permanent disability award from serving on jury duty. We again consider this one of the weirder state laws in our weird state but we are fairly confident the defense industry does not want T&P claimants to be on most juries anyway.

·         Siss, Bam, Boom--Illinois Tolls for Autos have Skyrocketed: We were less-than-thrilled yesterday to note the nearest tollbooth to your editor’s house now charges a cash toll of $1.90 for cars to travel past. That is a shocking amount of money to pay for highways that initially were to charge tolls to pay off the bonds that allowed them to be built. Obviously, as the State of Illinois is hemorrhaging red ink and has very limited ways to put its hand into your pocket to seek new money, the spiraling tolls were an easy way to sock-it-to all of us. We will have to wait and see if drivers fight to find alternative routes and avoid the new government gouge on our tollways.

1-3-12; Welcome to 2012, Everyone. New laws, new challenges for Risk, Safety and Benefits Managers in this Great State of Ours

As they said in the movie Talladega Nights®: “Coming at ya, like a spider-monkey!!” In no particular order, here are some odd things we may have to adjust to in the New Year to come:

A.    Hospital risk managers and insurers have to be wildly challenged to read of the new Appellate Court ruling in Caburnay v. Norwegian American Hospital, et. al. issued on December 23, 2005. Dr. Caburnay was an anesthesiologist and entered Norwegian's lobby through the emergency room doors and walked down a corridor to an elevator bank containing two elevators. He was carrying an umbrella in his right hand and a duffel bag over his left shoulder. The hospital had placed a single six foot by ten foot rubber and fabric mat in front of both elevators to protect its floors and to prevent slipping. That mat, or one similar, had been used intermittently in front of the elevators for approximately six months. As Dr. Caburnay approached the right elevator, he walked onto the mat, pushed the elevator call button, and stepped backwards. As he did so, he fell backwards and the back of his head and neck struck a couch adjacent to the elevator. Caburnay fractured his cervical spine, instantly rendering him quadriplegic.

If any novices among our readers aren’t sure, the insurance reserves and/or trial value of a personal injury claim involving a physician who became quadriplegic is well into the seven-figure range, if the doc and his attorney can get the claim to a jury on the issue of negligence. The problem hospital safety and risk managers struggle with mightily is how doctors want to be members of hospital staff and bend over backward to get surgical privileges to then immediately “turn on the hand that feeds them” if they suffer injuries. Sometimes doctors are considered employees of the hospital and thereby eligible for WC benefits; more often they are considered independent contractor and able to sue the larger institution for negligence. We sometimes wonder if hospitals couldn’t require doctors to obtain their own liability insurance coverage for themselves, sort of the like car rental companies offer their renters insurance to use the cars.

The problem for Dr. Caburnay is a hospital surveillance video indicates immediately after Dr. Caburnay fell, several Norwegian personnel came to Caburnay's assistance. A backboard was placed on the mat and Dr. Caburnay was placed upon it. Staff members wheeled a gurney onto the mat, lifted Dr. Caburnay onto it, and carried him away. The video does not show Caburnay's feet or the portion of the mat underneath his feet. Caburnay did not look at the mat, either before or after he fell, because he was looking at the elevator. From our review of this decision, there are no other witnesses who appear to support the “fold-in-the-mat” theory of liability.

When he testified, Dr. Caburnay claimed he fell due to a fold in the mat that he didn’t see and could only “feel.” For that reason, the Appellate Court reversed summary judgment against the hospital and the whole thing will now go to a jury. While we generally agree with the Court’s ruling, we note Norwegian American Hospital is a small inner-city facility that works very hard to keep itself afloat. They have been in business since 1894 and operate in one of the most diverse hospital settings any of our readers might imagine. We sincerely hope this claim can be resolved without major financial damage to this organization. To read the ruling, go to:

http://www.state.il.us/court/Opinions/AppellateCourt/2011/1stDistrict/December/1101740.pdf.

B.    Someday, before we all retire, we certainly hope the 2011 Amendments to the Illinois Workers’ Compensation Act are going to be put into full effect!!!

Please note the 2011 Amendments to the Illinois Workers’ Compensation Act were passed by both Houses of the Illinois legislature waaaaaay back on May 28, 2011. Our Governor signed the law and put it into place in the west suburbs of Chicago waaaay back on June 28, 2011.

So what is missing?—three letters: “PPP”!!!! One of the carrots for the new law everyone on the defense side was promised were Preferred Provider Programs. The last step was approval of the various provider programs by the Illinois Department of Insurance. We also note there have been PPO’s or preferred provider organizations licensed and operating across Illinois for decades—how long could it possibly take for the Dep’t of Insurance to approve PPP’s that are effectively the same concept?

We note it took months for the brain trust to issue the one-page “opt-out” form that has any number of words in it that have to be challenging for lots of workers to understand. But even that was issued at least sixty-ninety days ago and nothing new on final approval of PPP’s.

Well, we all have to remember this is what one of our readers called “The People’s Republic of Illinois” and no one truly understands workers’ comp anyway. We are starting to feel there are secret political or administrative forces afoot to try to forever stall, delay or otherwise block the concept. Maybe the forces of ITLA will get together and march into their friendly courtrooms and see if they can mount a constitutional challenge to the concept. Either way, we wonder if our Illinois State Chamber is going to have to file a mandamus action to get the Dep’t of Insurance off of square one and start to bring the savings to Illinois business. We will keep everyone posted if we learn anything new.

C.   Finally, we saw a recent memo to the industry from Illinois State Chamber President Doug Whitley about the new concept of Live Healthy Illinois. In his missive, Doug encourages all Illinois businesses to start to get your troops working out, eating healthier and living better. We strongly agree with every word Doug wrote—please take a look online at: http://ilchamber.org/wp-content/uploads/2011/09/Live-Healthy-Illinois-2012-Pres-Message-12-19-11.pdf

Our message to all of our readers in the risk and safety industry—we may be able to shield your organization from WC liability for injuries occurred during normal workouts with a simple form that confirms their activities are voluntary. The idea is to use the legal concept outlined in Section 11 of the Illinois Workers’ Compensation Act. The same form can be used for parties, picnics and other company get-togethers. If you are interested in the form, send a reply and we will forward it in draft for your consideration and use.

If you aren’t sure, the State Chamber is the go-to place for IL WC reform and help for all Illinois businesses to beat your competition from other states. KC&A is a long-time member and we urge you to join.

Happy New Year to everyone, from the attorneys and staff of Keefe, Campbell & Associates. God bless our great country!!