Opinion
No. 742 C.D. 2013
03-12-2014
Sharon Ryan, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Sharon Ryan (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board), which affirmed, as modified, a decision and order of a Referee, thereby denying unemployment compensation benefits to Claimant. For the reasons we set forth below, we reverse.
Claimant was employed as a full-time charge nurse by Davita Dialysis (Employer). Claimant ceased working for Employer on November 21, 2012 and applied for unemployment benefits. The Allentown UC Service Center (Service Center) noted that there was a conflict between whether Claimant quit or was fired, and found that Claimant voluntarily quit her employment. (Certified Record (C.R.), Item No. 4.) The Service Center then determined that Claimant was ineligible for unemployment benefits under Section 402(b) of the Unemployment Compensation Law (Law), because she voluntarily resigned her employment without cause of a necessitous and compelling nature. (Id.) Claimant appealed.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). Section 402(b) of the Law provides, in pertinent part, that an employee shall be ineligible for compensation for any week "[i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature."
An evidentiary hearing was held, at which Claimant and Employer's witness, Elizabeth Kaintz, testified. Following the hearing, the Referee issued a decision and order affirming the Service Center's determination. (C.R., Item No. 9.) The Referee determined that Claimant had voluntarily left employment because she tendered her resignation before Employer informed her of its intent to discharge her, and that Claimant failed to establish a necessitous and compelling reason for her resignation. (Id.)
Claimant appealed to the Board, which affirmed the Referee's decision and order with modification. (C.R., Item No. 12.) Contrary to the Referee's decision, the Board determined that Claimant had been discharged from her employment for willful misconduct. (Id.) In so doing, the Board made the following findings of fact:
1. The claimant was last employed as a full-time charge nurse by Davita Dialysis from July 18, 2011 at a final rate of $28.00 per hour and her last day of work was November 21, 2012.
2. The employer conducts compliance training where nurses are instructed not to write any kind of narcotic prescription at all.
3. The employer does allow nurses to write non-narcotic orders.
4. On November 16, 2012, a patient was complaining of pain during her dialysis and the claimant called the patient's nursing home regarding the claimant's [sic] prescribed medications.(Id.)
5. The claimant then wrote a recommendation for a narcotic pain medication on a prescription pad and gave it to the patient to give to a nurse at the nursing home.
6. The claimant printed her name and the name of the nurse practitioner on the bottom o[f] the prescription form indicating they had discussed this medication.
7. On November 21, 2012, the claimant was suspended pending an investigation regarding the recommendation for a narcotic that she wrote on a prescription pad.
8. On November 26, 2012, the claimant hand delivered a resignation notice to the facility administrator.
9. Later on November 26, 2012, the claimant received a call from the operations director advising that she had been discharged for writing a recommendation for a narcotic on a prescription pad.
Based upon the above findings, the Board concluded that Claimant's discharge was imminent. (Id.) A resignation to avoid imminent discharge is treated as a firing under the Law and eligibility is determined under Section 402(e). (Id.) Thus, Employer had the burden to prove that Claimant's discharge was for willful misconduct in connection with her work. The Board reasoned:
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). Section 402(e) of the Law provides, in part, that a claimant shall be ineligible for compensation for any week in which the claimant's unemployment is due to "willful misconduct in connection with his work."
The employer established that it has compliance training where nurses are instructed not to write any kind of narcotic prescription at all. The employer does allow nurses to write non-narcotic orders. The employer established that the claimant was suspended and ultimately discharged for violation of the employer's directive after she wrote a recommendation for a narcotic on a prescription pad and gave it to a patient.(Id.) As a result, the Board determined that Claimant was ineligible to receive unemployment compensation benefits under Section 402(e) of the Law. Claimant petitioned this Court for review.
The claimant testified that she did not intend for her recommendation written on the prescription pad to be interpreted as an official prescription. The claimant testified that she wrote her recommendation on a prescription pad so that it would not get lost like a regular blank sheet of paper may have gotten lost. The Board does not find the claimant's testimony to be credible. The Board finds that the claimant's conduct was intentional and she has not established good cause for violating the employer's directive to never write any kind of narcotic prescription.
On appeal, Claimant appears to argue that substantial evidence of record does not exist to support the Board's finding that her actions constituted a violation of Employer's directive. 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, 474 Pa. 351, 355, 378 A.2d 829, 831 (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, 506 Pa. 274, 286, 485 A.2d 359, 365 (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).
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.
By order of the Court, dated September 27, 2013, portions of Claimant's brief were stricken, leaving only those claims regarding substantial evidence for the Court to address on appeal. --------
Claimant challenges the Board's finding that her actions constituted a violation of Employer's directive or policy. At the heart of the controversy is the following testimony given by Employer's representative, and Claimant's supervisor, Ms. Kaintz:
CL: So in all the times when your nurses were doing this [customary practice of prescription recommendation], was there any caveat or warning or notice given to them that, do not do this, if it's ever a request for narcotic, do not follow this procedure?(C.R., Item No. 8 at 17.)
EW: Annually, we go through compliance training and compliance training - it's stated in there, things such as that. That we are not to write, as the nurses, any kind of narcotic prescriptions at all. In fact, we are highly discouraged from even doing that practice. In our unit, we have been doing it for many years, again, with exception of narcotics, we typically don't write any type of narcotic, but we do write other orders.
Claimant argues that the recommendation she wrote was not a prescription and could never be filled as a prescription, that Employer had no policy prohibiting her actions, that her actions were, in fact, in line with her unit's usual practice, and that her supervisor, Elizabeth Kaintz, testified that she did not think Claimant had done anything wrong. (Claimant's Br. at 6.) In support, Claimant points to testimony from Ms. Kaintz in which she acknowledges that the recommendation "was missing too many components for it to be used as a prescription," (C.R., Item No. 8 at 17), and her own testimony that the recommendation could not be filled as a prescription because it was missing too many essential elements (id. at 6, 8). Claimant also references testimony by Ms. Kaintz that filling out forms for prescriptions was customary in the unit (id. at 16), which Claimant uses to support her contention that her behavior was "something [she] had done previously without repercussion[,]" and that there was "no policy on the books at that point" prohibiting her actions (id. at 11). Finally, Claimant argues that her actions cannot be a violation of Employer's policy because Ms. Kaintz testified she "[a]bsolutely [did] not" see "any intent there, [to] do[] anything wrong" in Claimant's actions. (Id. at 16.)
The Board, in its brief, interprets Ms. Kaintz's testimony quite differently. The Board argues that Employer's policy, as stated by Ms. Kaintz, meant that Claimant "was not supposed to write any narcotic recommendation order or prescription anywhere." (Respondent's Br. at 8.) Thus, the Board contends that Claimant's repeated contention that the recommendation she wrote was not a legal prescription is irrelevant. The Board further argues that "Claimant ignores the key findings that the Board focused on that control this proceeding; namely, that Employer conducted compliance training where nurses are instructed not to write any kind of narcotic prescription or recommendation." (Id. (emphasis in original).) Based upon the above reasoning, the Board contends that substantial evidence exists to support its finding that Claimant's actions violated Employer's directive or policy.
The Board's arguments, however, mischaracterize the testimony and the Board's own findings. A careful review of the record reveals that there is no testimony or other evidence of record that supports a finding that Employer's directive or policy prohibited a nurse from making a recommendation for a narcotic. Rather, Ms. Kaintz testified that Employer instructed its nurses that they could not write prescriptions for narcotics. (C.R., Item No. 8 at 17.) This is consistent with the Board finding that "nurses are instructed not to write any kind of narcotic prescription at all." (C.R., Item No. 12.) Moreover, the record reveals that both Claimant and Ms. Kaintz considered Claimant's notation to constitute a recommendation, not a prescription, as the notation did not include sufficient information to constitute a prescription. (C.R., Item No. 8 at 5-8, & 17.) This, too, is consistent with the Board's finding that Claimant "wrote a recommendation for a narcotic pain medication." (C.R., Item No. 12 (emphasis added).)
A recommendation and a prescription are not the same thing, as detailed testimony from both Claimant and Ms. Kaintz demonstrates. (See C.R., Item No. 8 at 5-8, & 17.) We are not persuaded by the Board's argument that the distinction is irrelevant or unimportant. In fact, we find the Board's word choice to be of paramount importance. Having found that Employer's policy prohibits only the writing of a narcotic prescription , the Board's finding that Claimant's writing of a recommendation violated Employer's policy is not supported by substantial evidence of record.
Accordingly, the order of the Board is reversed.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 12th day of March, 2014, the order of the Unemployment Compensation Board of Review is hereby REVERSED.
/s/_________
P. KEVIN BROBSON, Judge