Opinion
No. 761 C.D. 2012
04-18-2013
Kelly M. Bauman, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge (P.) HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
This is an appeal from a decision of the Unemployment Compensation Board of Review (Board) that reversed the referee's decision, and denied benefits to Kelly M. Bauman (Claimant). The Board held that Claimant was ineligible for benefits under section 402(e) of the Pennsylvania Unemployment Compensation Law (Law). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
On July 14, 2011, Claimant was discharged from her full-time position as a registered nurse at Pinnacle Health (Employer), where she had been employed since 2003. After Claimant filed her initial claim for unemployment, the Lancaster UC Service Center determined that she was ineligible for benefits, finding that she was discharged for suspicion of drug diversion. Claimant appealed from the Notice of Determination, and a hearing was held, at which Claimant and two representatives of Employer testified. The referee reversed the UC Service Center and granted benefits. Employer appealed, and on March 28, 2012, the Board issued its opinion and order, reversing the referee's decision and denying benefits.
The referee found that Employer discharged Claimant from employment for "suspicion of drug diversion" and concluded that Employer provided solely circumstantial evidence to establish its suspicion that Claimant was diverting drugs, with no firsthand testimony that she did so. The referee reasoned that Employer admitted that while Claimant's actions appeared suspicious, there were no apparent discrepancies indicating missing drugs and Claimant denied that she diverted drugs; thus, the facts did not establish that Claimant committed willful misconduct under the Law. (Referee's Decision/Order, October 25, 2011, Findings of Fact ¶¶ 3-4, Reasoning.)
At the referee hearing, Claimant's supervisor, Lisa Casey, R.N., a Nurse Manager (Nurse Casey), testified that she received a report from another nurse of suspicious narcotic activity involving Claimant on July 5, 2011 and, in accordance with Employer's drug investigation program, she was then required to notify Employer's pharmacy. (Record Item No. 9, Referee's Hearing Transcript of Testimony (H.T.), 10/3/2011, at 1, 14.) The drug that Nurse Casey received a complaint about was Dilaudid, a controlled substance narcotic. (H.T. at 16.) Employer tracks the activities of its nurses through an electronic drug administration process, and after a physician orders a drug for a patient, the nurse can withdraw the medication from what is termed a Pyxis dispenser, similar to an ATM machine, which keeps track of all withdrawals and returns of unused medications. (H.T. at 15-17.) Once the medication is taken from the Pyxis dispenser, the nurse scans the drug to verify the patient's identity, and, after administering the drug, the nurse electronically documents having done so in Employer's Medical Administration Tracking System. (Id.) Each nurse has her own log-in and identification to access medications, and the system enables Employer to identify all narcotic medications removed by nurses from its drug supply. (Id.) If a pulled drug is not administered to a patient, it must either be returned to Pyxis in the presence of a witness or thrown away ("wasted") in the presence of a witness and recorded in Pyxis. (H.T. at 20.)
Rita Overcash, R.N., Employer's Pharmacy Nursing Supervisor (Nurse Overcash), who also testified at the referee hearing, conducted a review, based upon the electronic records, of Claimant's handling of drugs. (H.T. at 48.) As part of Employer's investigation, Nurses Casey and Overcash reviewed Claimant's withdrawals of Dilaudid from Pyxis against the medical records of the patients Claimant reported in the Medication Administration Tracking System. Employer identified six patients Claimant reported as having received Dilaudid where, Employer alleged, the administration of the drug was unwarranted. After the review was completed, Nurses Casey and Overcash presented their findings to Employer's Drug Diversion Task Force, who determined to terminate Claimant's employment. (H.T. at 29.) A document (referred to as the Conference Record) was prepared and signed by Employer and acknowledged by Claimant; it sets forth the evidence adduced in detail, and concludes that "in accordance with policy HR#5, you are being terminated effective immediately, 7/14/11 for willful misconduct: drug diversion activities." (Record Item No. 4, Employer Separation Information, Conference Record.) The Conference Record discusses the nature of the report of suspicious narcotic activity that triggered the investigation, and notes that the Proactive Diversion Report prepared shows:
For example, medical records indicate that Claimant gave five doses of Dilaudid to Patient 1, which were several more doses per shift than other nurses gave the patient. Other nurses reported that the patient was not able to report pain or did not have pain. The system reported that Claimant had multiple events of withdrawing Dilaudid, recording that she administered the drug, then reporting that she wasted the medication, and then re-drawing doses of the same drug from Pyxis. (H.T. at 20-21.) "Patient 3" was not a patient of Claimant's, however, Claimant reported the administration of one dose of Dilaudid, followed by a second dose within two hours, and six minutes after the second dose was charted as administered, she reported the second dose as having been wasted. On the next nightshift, with the same patient, Claimant again pulled a dose of Dilaudid, charted it as having been administered, wasted it, and again pulled another dose. (H.T. at 23-24.) "Patient 5" was not Claimant's patient, and had been receiving another pain medication, the drug Percocet, from her primary nurse. Claimant drew two doses of Dilaudid for Patient 5, and documented, within one minute after administering each of the doses, that the patient had received relief from pain. (H.T. at 26-27.)
[y]our total # of days pulling Dilaudid and total # of doses given began to be above that of your co-workers in the March-April 2011 report and then drastically increased in the May-June 2011 report when you pulled 72 doses of Dilaudid 2 mg vials in 14 days from M5-1 Pyxis and an additional 48 doses in 13 days from M5-2 Pyxis.(Id.) Employer's Human Resources Policy and Procedures Manual, HR#5, contains the Corrective Action Policy. Claimant signed the Employee Handbook Acknowledgement Form indicating her understanding of Employer's employee policies and procedures. (Record Item No. 9, Exhibit E-3.) The Employee Handbook sets forth a list of 22 performance problems as examples of misconduct that will result in corrective action, including termination from employment. Nurse Casey testified that Claimant violated Item 13 on the list (theft, fraud or unauthorized possession or use of property belonging to the System, employees, patients or visitors) and Item 19 on the list (unsafe work practice). (H.T. at 11-12; Record Item No. 9, Employer Exhibits E1-E2.)
The Board specifically found that Claimant engaged in suspicious narcotic activity (Findings of Fact (F.F.) ¶2); took four times more of Dilaudid to administer to patients than her co-workers during the period of May to June 2011 (F.F. ¶3); in a period of 14 days, took 110 doses of Dilaudid from the narcotic drug storage machine (F.F. ¶4); and during that same 14 day period, the next highest withdraw of Dilaudid by another nurse was 26 (F.F. ¶5). The Board found that Claimant was authorized to withdraw Dilaudid if a patient complained of pain, and that if the drug was taken from the machine and not used, it needed to be either returned to the machine or thrown away (i.e.,wasted), so long as it was discarded in the presence of a witness. (F.F. ¶¶6-7). However, the Board found that Claimant would take Dilaudid from the machine, record that she had administered the drug to the patient, but then also record that she had wasted or thrown away the narcotic, and within minutes, would again withdraw Dilaudid to administer to the same patient. (F.F. ¶¶8, 10). The Board found that Claimant regularly did not return unused Dilaudid to the machine, but rather threw it away. (F.F. ¶9). Further, the Board found that although Claimant alleged that she was giving Dilaudid to patients who were in pain, other nurses were regularly reporting that these patients were not in pain (F.F. ¶11), and sometimes Claimant took the drug to give to patients that were not her own patients (F.F. ¶12) or who were already receiving other oral narcotics (F.F. ¶13).
Nurse Casey testified as to the significance of the instances where Claimant wasted narcotics as follows:
Employer's Attorney
(EL): And what would be the significance in this case of the multiple wastes that Claimant reported, or had reported in Pyxis?
Nurse Casey
(EW1): I don't know.
EL: All right. Was it suspicious activity?
EW1: Yes.
EL: Why so?
EW1: Because she, [Claimant] would pull a med and document it, and then go back and waste it after it was already documented and pull another one.
- - - - - - -
EL: Was that significant clinically, in terms of the nursing practice to you?
EW1: Yes
EL: How so?
EW1: The waste of meds, as opposed to the return of meds, so that patient's being charged twice is one issue. And what is the sloppy practice that we need to waste so many meds.
EL: Is that a safe work practice?
EW1: No.
EL: Now incidentally, couldn't she have just put the medication back into the machine, if she wasn't using it?
EW1: Yes.
Before this Court, Claimant argues, first, that Employer presented no evidence of a work rule violation and terminated her employment based upon mere suspicion of drug diversion, and that therefore the Board erred in finding that Employer met its burden of proving willful misconduct. Employer does bear the burden of proving willful misconduct, and a violation of an employer's work rules may constitute such misconduct. Ductmate Indus., Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008). In making the determination of whether an employee's actions constitute willful misconduct, our Court must examine the evidence in the light most favorable to Employer, which is the party that prevailed before the Board. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). As such, Employer must be given the benefit of all inferences that can be reasonably and logically drawn from the evidence. Id. Once willful misconduct has been established, the burden of proof shifts to the claimant to establish that she had good cause to violate the rule. County of Luzerne v. Unemployment Compensation Board of Review, 611 A.2d 1335, 1338 (Pa. Cmwlth. 1992). Whether Claimant has good cause to violate Employer's work rule is a question of law subject to this Court's review and should be viewed in light of all the attendant circumstances. Dunkle v. Unemployment Compensation Board of Review, 496 A.2d 880, 882 (Pa. Cmwlth. 1985).
Our scope of review is limited to determining whether constitutional rights are violated, whether the adjudication is in accordance with the law and whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. --------
Here, Claimant argues that Employer terminated her employment on the mere suspicion of drug diversion, but did not present evidence of the actual violation of a work rule. She argues, in essence, that because Employer provided no testimony that she ever improperly disposed of a narcotic, i.e., wasted it without a witness present, or acted outside the constraints of a physician's orders with respect to a narcotic, there is simply no evidence that she actually violated a work rule by engaging in unsafe work practices. (Claimant's Brief at 12.) We disagree. Employer documented multiple occasions on which Claimant exhibited conduct that can only be interpreted as an "unsafe nursing practice." These actions were recorded by Claimant herself via her entries into both Pyxis and the Medical Administration Tracking System, and corroborated by patients' medical records.
Claimant argues that she properly administered and disposed of narcotics at all times during her employment, and that she has reasonable explanations for each incident set forth in the Conference Record; for example, in response to questions about the comparatively high numbers of her withdrawals of Dilaudid from Pyxis, Claimant recollected one patient alone during that period of time who, she stated, received doses every two hours for all twelve hours of her Friday, Saturday and Sunday shifts, for two weekends in a row. (H.T. at 78-79.) However, Nurse Casey directly refuted this statement during her testimony, when she stated that in the course of the investigation, they looked at every Pyxis pull, and found no patient who was recorded to have received such doses over such period of time. (H.T. at 86-87.) Claimant admitted that she regularly charted patients' levels of pain within one minute of having administered a dose of Dilaudid, even though she was aware that the effects of a dosage could not be seen in that period of time. (H.T. at 75.)
Claimant acknowledged the "apparent discrepancies in documentation" set forth in the Conference Record, but argues that each instance was summarily refuted and explained in her testimony. (Claimant's Brief at 13.) However, the Board resolved conflicts in testimony, in relevant part, in favor of Employer and found the testimony of Nurse Casey and Nurse Overcash to be credible. The Board found that Claimant did excessively waste narcotics, and did have incorrect documentation. (Board's Decision and Order, at 2.) In unemployment compensation cases, the Board is the ultimate fact finder and is empowered to make credibility determinations. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 270, 501 A.2d 1383, 1385 (1985). The Board did not accept Claimant's explanations, and found that Claimant was discharged for an unsafe work practice (F.F. ¶14), one of Employer's work rules. Accordingly, the Board properly concluded that Employer met its burden of establishing that Claimant was discharged for willful misconduct in connection with her work, as set forth in Section 402(e) of the Law.
Claimant also argues that the Board's findings that she: i) engaged in suspicious narcotic activity (F.F. ¶2); ii) administered narcotics to patients other than her own (F.F. ¶12); and iii) was discharged for an unsafe work practice (F.F. ¶14) were not supported by substantial evidence. (Claimant's Brief at 14-18.) Substantial evidence is that evidence which a reasonable mind, without weighing the evidence or substituting its judgment for that of the fact finder, might accept as adequate to support the conclusion reached. Solar Innovations, Inc. v. Unemployment Compensation Board of Review, 38 A.3d 1051, 1055 (Pa. Cmwlth. 2012). Given the overwhelming evidence presented by Employer in the form of the analyses of Claimant's own secured entries into Pyxis and the Medication Administration Tracking System, coupled with Claimant's own testimony regarding her practice of administering pain medications to patients other than her own, we find, unequivocally, that the Board's Findings of Fact ¶¶2, 12, and 14 are supported by substantial evidence.
Claimant also alleges that the Board made a finding that she improperly wasted narcotics, and she argues that this finding is not supported by substantial evidence. In fact, the Board made a number of findings with regard to Claimant's wasting of narcotics, none of which employed the term "improper." The Board acknowledged that if a narcotic was taken from Pyxis and not used, it was required to be returned to Pyxis or disposed of, always in the presence of a witness. (F.F. ¶7.) Employer's report demonstrated, and the Board found, that Claimant would take a narcotic from Pyxis, record that she had administered it to a patient, but then also record that she had wasted the narcotic, and thereupon withdraw another dose of the narcotic to administer to the same patient within minutes. (F.F. ¶¶8-9.) Finally, the Board found that Claimant wasted narcotics that should have been returned to the machine and that Claimant's documentation was incorrect. (F.F. ¶15.) Nurse Casey testified at length as to the significance of the multiple wastes Claimant reported in Pyxis. In its opinion and order, the Board stated that Claimant excessively wasted narcotics. We find that all of the Board's findings in regard to Claimant's wasting of narcotics to be supported by substantial evidence.
The Board properly concluded that Claimant was ineligible for compensation due to her willful misconduct. Accordingly, we affirm the order of the Board.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 18th day of April, 2013, the order of the Unemployment Compensation Board of Review in the above-captioned matter is AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge
(H.T. at 20-21.)