Opinion
No. 973 C.D. 2014
07-21-2015
Kirsten A. Fisher, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Kirsten A. Fisher (Claimant) petitions, pro se, for review of an order of the Unemployment Compensation Board of Review (Board). The Board affirmed an Unemployment Compensation Referee's (Referee) decision denying Claimant unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law). For the reasons below, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Claimant was employed as a full time nurse's aide for the County of Allegheny Kane Regional Centers (Employer). Claimant filed for unemployment compensation benefits after her employment was terminated on September 10, 2013. The Duquesne UC Service Center (Service Center) issued a Notice of Determination finding Claimant ineligible for benefits. (Certified Record (C.R.), Item No. 5.) Claimant appealed the Notice of Determination.
A hearing was held before a Referee on December 4, 2013. (C.R., Item No. 9.) Claimant appeared at the hearing with a representative and testified. (Id.) Employer was represented by counsel and presented the testimony of its Assistant Director of Nursing (Assistant Director). (Id.)
The Assistant Director testified that, on the day in question, she was paged because a resident had fallen and struck her head on the floor. (C.R., Item No. 9, at 7.) The Assistant Director stated that the resident was Claimant's steady nurse's aide assignment and that she took Claimant downstairs to ask about the incident. (Id.) Claimant told the Assistant Director that she knew that the resident had fallen five days prior to this incident, the resident still had staples on her forehead from that fall, and that the resident was labeled as a one assist and fall risk with a wheelchair alarm. (Id.) Claimant then told the Assistant Director that she took the resident to the bathroom around 11:30 and left the resident alone in the bathroom to attend to another resident three rooms down. (Id.) It was reported around 12:00 that the resident had fallen out of the bathroom face first, resulting in a hospital visit and diagnosis of a concussion. (Id. at 7, 11.) The Assistant Director testified that Claimant admitted to not informing the resident to use the call bell on the bathroom wall when the resident was done using the bathroom and that she had removed the wheelchair from the bathroom before closing the door. (Id. at 7-8.) The Assistant Director stated that she felt it was poor judgment on Claimant's part to leave the fall risk resident alone in the bathroom for thirty minutes. (Id. at 8.) The Assistant Director then testified to Claimant's history of not following the assignment sheets. (Id. at 10.) Upon Employer's counsel's request, the Referee admitted all of Employer's exhibits into the record. (Id. at 12.)
Claimant testified that there was no way for her to attach an alarm to the resident while the resident was using the bathroom. (Id. at 13.) Claimant also stated that the assignment sheet did not show that the resident was not allowed to be left alone in the bathroom. (Id. at 14.) Claimant then identified pictures that her representative took of a bathroom. (Id. at 14-16.) The Referee, however, determined that the pictures were unauthenticated and refused to admit them into evidence. (Id. at 19-22.) On cross-examination, Claimant admitted that she knew the resident was a fall risk, that the resident was labeled a fall risk on the assignment sheet, and that she left the resident alone even though she knew the resident was a fall risk. (Id. at 17-18.)
The Referee affirmed the Notice of Determination and found Claimant ineligible for benefits pursuant to Section 402(e) of the Law, relating to willful misconduct. (C.R., Item No. 10.) The Referee concluded that Claimant's action of leaving her fall risk resident in the bathroom by herself was below the standard of conduct that an employer expects from an employee. (Id.) In doing so, the Referee found that Claimant was discharged for abuse or neglect of a resident, because she left the resident alone, which resulted in the resident falling and injuring herself. (Id.) The Referee stated that Claimant should have known that leaving the resident alone in the bathroom presented a potential risk of serious injury to the resident, especially because the resident had fallen five days prior to this incident. (Id.)
Claimant appealed to the Board, which affirmed the Referee's decision by order dated April 23, 2014. (C.R., Item No. 16.) On May 27, 2014, the Board issued an order vacating the April 23, 2014, order. (C.R., Item No. 19.) By order dated June 16, 2014, the Board determined Claimant ineligible for benefits. (C.R., Item No. 20.) In doing so, the Board made the following findings of fact:
Claimant, with the aid of counsel, filed a motion for reconsideration, asserting that the Board may have issued the decision without reading her brief. (C.R., Item No. 17.) Claimant's counsel explained that she was granted an extension to file a brief, resulting in the deadline being extended to April 23, 2014. (Id.) Counsel submitted her brief on April 21, 2014. (Id.) On April 23, 2014, the Board's decision was issued and mailed to Claimant, not Claimant's attorney. (Id.) Between the short lapse of time between the filing and the decision, coupled with Claimant receiving the order instead of counsel, Claimant's counsel requested that the Board read her brief and reconsider the case. (Id.)
1. The claimant was last employed as a full-time nurse's aide by the County of Allegheny/Kane Regional Centers from July 24, 1976[,] and her last day of work was September 10, 2013. Her rate of pay was $16.75 an hour.
2. Under the employer's policy, a resident classified as a fall risk on their assignment sheet cannot be left unattended.
3. The claimant had a history of not following the assignment sheets.
4. On September 10, 2013, the claimant was assigned to a resident.
5. The resident was the claimant's steady resident.
6. The claimant was aware that the resident fell five days earlier and had staples on her forehead.
7. The resident was classified as a fall risk on the claimant's assignment sheet and she was aware of it.
8. On September 10, 2013, at 11:30 a.m., the claimant took the resident into the bathroom.(Id. (emphasis added).)
9. The claimant left the resident in the bathroom alone in order to attend to another resident that was three rooms down.
10. The claimant removed the resident's wheelchair out of the bathroom and closed the bathroom door.
11. A call bell was inside the bathroom.
12. The claimant admitted that she did not inform the resident about the call bell on the wall.
13. At approximately 12:00 p.m., the resident came out of the bathroom and fell on her face.
14. The resident's roommate alerted the employer.
15. The resident was taken to the hospital for head injuries.
16. The resident sustained a concussion.
17. The claimant was discharged for, among other things, leaving the resident unattended in the bathroom.
The Board did not find Claimant's testimony to be credible and decided conflicts of evidence in favor of Employer. (Id.) The Board also found that Claimant did not have good cause for her actions. (Id.) In doing so, the Board reasoned that "[a]lthough another resident may have needed help, the claimant has not shown that she attempted to contact someone before deciding to violate the policy. The claimant did not have good cause for her actions because she failed in her duty to engage the employer in informative communication." (Id.) Claimant petitioned for review of the Board's order.
On appeal, Claimant argues that (1) the Referee abused her discretion in excluding the photographs from the record; (2) substantial evidence does not exist to support the Referee's finding that Employer had a rule or policy stating that a fall risk resident cannot be left alone; (3) the Board erred in holding Claimant to a higher standard; and (4) the Board erred as a matter of law in concluding that Claimant's actions to constitute willful misconduct.
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
First, we will address Claimant's argument that the Referee erred in excluding the photographs that Claimant's representative took and provided for the hearing. At the hearing, the Referee excluded Claimant's representative's pictures because they lacked authenticity. (C.R., Item No. 9, at 21.) In doing so, the Referee reasoned that (1) Claimant did not take the pictures, rather her representative did; (2) the representative did not have information as to exactly what room the pictures depicted; and (3) the pictures were taken several months after the incident. Claimant contends that the Referee's ruling was in error because she adequately authenticated the picture by answering in the affirmative when Claimant's representative asked whether the pictures "show the state of the pull cord as it was on the date of the incident." (Petitioner's Brief, 13.)
Claimant's representative, although unable to identify the room number, repeatedly stated that "it's the same room." (C.R., Item No. 9, at 15, 19.) Claimant's representative admitted to taking the pictures the day before the hearing, approximately three months after the incident, although she offered no evidence to show that the bathroom was in the same condition in the pictures as it was during the incident. (Id. at 19.) Claimant, however, testified that the pictures were "of the bathroom," and then she identified the call bell hanging off the wall inside the bathroom. (Id. at 14.) Claimant testified that the pictures were taken on the floor on which she worked, although she did not testify as to the room number or specific location of the bathroom depicted in the pictures. (Id. at 16.)
Based upon the testimony offered by Claimant and her representative, it was reasonable for the Referee and Board to find that some questions remain as to whether the pictures depict the bathroom in which the resident fell and, if so, whether the condition of the bathroom remained the same as it did at the time of the fall. Notwithstanding the inadmissibility of the pictures, the Board found that a call bell is located inside the bathroom, which was what Claimant was attempting to show with the pictures. Thus, any error there might have been in excluding the pictures is harmless.
Next, we interpret Claimant's argument as a challenge to the Board's findings that the resident was labeled as a fall risk, that the fall risk resident should not have been left alone, and that it was Employer's policy to not leave a fall risk resident alone. Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is substantial evidence to support the Board's findings, this Court must examine the testimony in the light most favorable to the prevailing party, giving that party the benefit of any inferences that can logically and reasonably be drawn from the evidence. Id. A determination as to whether substantial evidence exists to support a finding of fact can only be made upon examination of the record as a whole. Taylor v. Unemployment Comp. Bd. of Review, 378 A.2d 829, 831 (Pa. 1977). The Board's findings of fact are conclusive on appeal only so long as the record, taken as a whole, contains substantial evidence to support them. Penflex, Inc. v. Bryson, 485 A.2d 359, 365 (Pa. 1984). "The fact that [a party] may have produced witnesses who gave a different version of the events, or that [the party] might view the testimony differently than the Board is not grounds for reversal if substantial evidence supports the Board's findings." Tapco, Inc. v. Unemployment Comp. Bd. of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). Similarly, even if evidence exists in the record that could support a contrary conclusion, it does not follow that the findings of fact are not supported by substantial evidence. Johnson v. Unemployment Comp. Bd. of Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986).
It is well settled that when "the Board makes its own findings of fact, it is the Board's determination, rather than the referee's, which is subject to [this Court's] review." Viglino v. Unemployment Comp. Bd. of Review, 525 A.2d 450, 453 (Pa. Cmwlth. 1987). Claimant mistakenly challenges the Referee's findings instead of the Board's. To the extent that the Board made findings similar to the challenged findings of the Referee, we will address Claimant's arguments.
The Board is the ultimate fact finder and is, therefore, entitled to make its own determinations as to witness credibility and evidentiary weight. Peak v. Unemployment Comp. Bd. of Review, 501 A.2d 1383, 1386 (Pa. 1985). Thus, in the face of conflicting evidence, the Board exercises its discretion to resolve evidentiary conflicts, and its credibility determinations "are not subject to re-evaluation on judicial review." Peak, 501 A.2d at 1388.
Claimant argues that Employer did not provide evidence to show that the resident was labeled as a fall risk, that the fall risk resident should not have been left alone, and that it was policy to not leave a fall risk resident alone.
Claimant also attempts to argue that there was plenty of evidence offered to show that an alarm could not have been attached to the resident while she used the bathroom. Claimant, however, ignores the fact that the Board found she was discharged for leaving a fall risk resident alone, not because she failed to secure an alarm to the resident. Thus, we will not discuss this argument further.
At the hearing, the Assistant Director testified that Claimant knew that the resident had fallen five days prior to the incident and that the resident had staples on her forehead. (C.R., Item No. 9, at 7.) The Assistant Director also testified that Claimant admitted to not informing the resident about the call bell on the bathroom wall, to removing the wheelchair from the bathroom, and to closing the bathroom door before leaving the resident alone. (Id. at 7-8.) The Assistant Director stated that Claimant also admitted that she knew the resident was a fall risk and that she wished she had not left the resident alone. (Id.) Documentation was admitted into evidence which the Assistant Director testified indicated that the resident was listed as a fall risk, one assist, and alarmed wheelchair. (Id. at 9.) The Assistant Director also testified that it was policy that "any resident that's alarmed with the fall risk on their assignment sheet don't leave alone unattended." (Id. at 8.)
Claimant testified that she did not believe that the assignment sheet entered into evidence was the same assignment sheet that she received on the day of the incident. (Id. at 13.) Claimant also stated that the assignment sheet did not state that the resident should not be allowed in the bathroom alone. (Id. at 14.) On cross-examination, Claimant did admit that she knew the resident was a fall risk, that the assignment sheet did label the resident as a fall risk, and that she left the resident alone in the bathroom even though she knew the resident was a fall risk. (Id. at 17-18.)
The Board ruled all conflicts in evidence in favor of Employer, and, as stated above, it is not in this Court's power to reweigh the evidence and make credibility determinations. The Assistant Director's testimony on behalf of Employer clearly shows that Claimant knew of the resident's labeling, knew how to handle such labeling, and left the resident alone despite the labeling. In addition, the Assistant Director competently testified as to Employer's policy regarding fall risk residents. The Board credited her testimony, thus rejecting Claimant's allegation that such policy does not exist or that the assignment sheet did not explicitly require a fall risk resident to not be left unattended. Thus, substantial evidence exists to support the Board's findings of fact.
Next, we will address Claimant's argument that the Board held her to a higher standard because of her employment in health care. Claimant cites to Navickas v. Unemployment Compensation Board of Review, 787 A.2d 284 (Pa. 2001), wherein the Supreme Court reversed this Court's determination that health care professionals are held to a higher standard than most other employees under willful misconduct. Navickas, 787 A.2d at 285. In Navickas, the claimant was hired at Children's Hospital of Philadelphia (CHOP) on October 10, 1997, five months after graduation from nursing school. Id. at 286. In July or August of 1998, the claimant made an error in patient care and was placed under supervision by a nurse preceptor. Id. After about five weeks under supervision, the claimant was able to work without supervision. Id. Not long thereafter, the claimant failed to properly dilute an antibiotic before administering it to a patient. Id. Under CHOP policies, a nurse is required to look up medication in a reference book "if [she has] questions regarding the [dilution] ratio." Id. The claimant stated that she glanced at the reference book, but she did not read it carefully because she thought she had administered the medication previously and knew the proper dilution ratio. Id. About a week later, on October 7, 1998, the claimant accepted the option of resignation in lieu of dismissal, given her previous history of mistakes and the employer's apparent dissatisfaction with her job performance. Id.
The Supreme Court granted the claimant unemployment compensation benefits because the claimant's actions were not an "intentional disregard of the employer's interest or the employee's duties." Id. at 289. The Supreme Court reasoned that mere negligence does not rise to the level of willful misconduct, and, therefore, the additional element of intentional disregard is needed for willful misconduct. Id. at 290. In addition, the Supreme Court noted that the Law does not allow ad hoc exceptions or modifications to its standards. Id. at 290. The Supreme Court then concluded that this Court erred in adopting a higher standard of care for health care workers. Id.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§751-918.10. --------
This case, however, is distinguishable from Navickas. In Navickas, the claimant attempted to comply with the employer's policy, but she nevertheless erred in diluting the medication. Here, the Board found that Employer's policy provided that a resident classified as a fall risk shall not be left alone. Claimant, knowing that the resident was a fall risk, left the resident alone in the bathroom without her wheelchair and without instructing her to use the call bell if she needed assistance. There was no evidence that Claimant attempted to comply with Employer's policy, rather, Claimant appears to have ignored the policy without informing Employer. Thus, Claimant's actions constituted intentional disregard, unlike the claimant in Navickas. Navickas, therefore, does not apply to this case, and the Board did not apply a higher standard in denying Claimant benefits.
Last, we will address Claimant's argument that the Board erred as a matter of law in concluding that Claimant engaged in willful misconduct. Section 402(e) of the Law, in part, provides that an employee shall be ineligible for compensation for any week in which "his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work." The employer bears the burden of proving that the claimant's unemployment is due to the claimant's willful misconduct. Walsh v. Unemployment Comp. Bd. of Review, 943 A.2d 363, 368 (Pa. Cmwlth. 2008). The term "willful misconduct" is not defined by statute. The courts, however, have defined "willful misconduct" as follows:
(1) an act of wanton or willful disregard of employer's interests, (2) a deliberate violation of the employer's rules, (3) a disregard of standards of behavior which the employer has a right to expect of an employee, or (4) negligence indicating an intentional disregard of the employer's interest or of the employee's duties and obligation to the employer.Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422, 425 (Pa. 2003). Whether or not an employee's actions amount to willful misconduct is a question of law subject to review by this Court. Nolan v. Unemployment Comp. Bd. of Review, 425 A.2d 1203, 1205 (Pa. Cmwlth. 1981). Whether an employee's actions constitute willful misconduct is a question of law subject to de novo review and must be determined based on a consideration of all of the circumstances. Docherty v. Unemployment Comp. Bd. of Review, 898 A.2d 1205, 1208 (Pa. Cmwlth. 2006).
In addition, in Bortz v. Unemployment Compensation Board of Review, 464 A.2d 609 (Pa. Cmwlth. 1983), this Court concluded that
informative communication with the employer may be a factor in sustaining the employee's burden to establish good cause for a violation, and, in those situations, the employee, where feasible, must notify her employer of the reason for refusing to comply with rules, unless the reason for noncompliance is self-evident, or unless the employer is independently aware of the circumstances warranting noncompliance.Bortz, 464 A.2d at 610-11.
Here, the Board found that Claimant left the resident unattended and did not attempt to inform anyone that she was leaving the fall risk resident alone. Claimant knew that the resident had fallen five days prior to the incident and that she was a fall risk. Claimant also admitted that she knew she should not have left the resident alone in the bathroom without the armed wheelchair. Viewed in the collective, the record shows that Claimant intentionally left the fall risk resident alone despite knowing that such action violated Employer's policy, and Claimant did not communicate to Employer that she was leaving the resident alone. Thus, the Board did not err as a matter of law in concluding that Claimant's actions constituted willful misconduct.
Accordingly, the order of the Board is affirmed.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 21st day of July, 2015, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge