Opinion
No. 1056 C.D. 2013
02-06-2014
Alice M. Bortot, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Alice M. Bortot (Claimant) challenges the order of the Unemployment Compensation Board of Review (Board) that affirmed the referee's denial of benefits under Section 402(e) of the Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
The facts, as initially found by the referee and confirmed by the Board, are as follows:
1. From March 7, 1990 through January 29, 2013, the claimant worked as an LPN for DuBois Continuum of Care earning $20.85 per hour.
2. The employer has a policy that requires all medication be administered as ordered and that medication given must be documented on each shift.
3. On December 26, 2012, the claimant was to give a patient an injection per physician's orders.Referee's Decision, March 19, 2013, (Decision), Findings of Fact Nos. 1-9 at 1-2.
4. On December 26, 2012, the claimant discovered that the necessary injection was not at the facility and called the pharmacy to have it sent over.
5. A few days later, the claimant gave the patient the injection, but failed to document the administration of the injection, as required.
6. On or about January 29, 2013, the claimant became aware that she did not document the injection for the patient at the end of December 2012.
7. On or about January 29, 2013, the claimant went back to the patient's file and documented the administration of the injection.
8. The claimant did not follow the proper procedure for documenting information in the patient file as a 'late entry'.
9. On January 29, 2013, the claimant was discharged for failing to follow the employer's medication administration policy.
The referee determined:
In this case, the employer has established that a medication administration policy exists in their [sic] facility and that the claimant did violate it in December 2012 when she failed to at minimum, to document the administration of an injection to a patient. The evidence of record shows that the claimant failed to document the administration of the injection and when the omission was discovered in January 2013 went back and made the entry, but did not record it as a 'late entry', as per the employer's policy. While the claimant testified at the time of hearing that she did in fact administer the
injection a few days after the date it was ordered for [sic], she has not provided good cause as to why she failed to document the injection as per the employer's policy or to enter the omission as a 'late entry' when the omission was discovered in January 2013. Because the claimant has failed to establish good cause for her conduct or that the employer's policy was unreasonable in the given circumstance the Referee finds that the claimant is ineligible for benefits under Section 402(e) of the Law.Decision at 2.
Claimant appealed to the Board which affirmed and incorporated the referee's findings and conclusions:
On appeal, the claimant alleges that it was common practice, when the records were reviewed, for the nurse on duty to go into the computer and fill in any missing entries without marking them as 'late.' However, the claimant did not present such testimony at the hearing. The Board may not consider the claimant's self-serving, extra-record allegation. Because the claimant did not present sufficient good cause for filing to mark the entry as 'late,' benefits were properly denied.Board Opinion, May 2, 2013, at 1.
Claimant contends that she did not commit willful misconduct and that the medication in question was actually given to the patient.
This Court's review in an unemployment case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or essential findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994).
Whether a Claimant's conduct rises to the level of willful misconduct is a question of law subject to this Court's review. Lee Hospital v. Unemployment Compensation Board of Review, 589 A.2d 297 (Pa. Cmwlth. 1991). Willful misconduct is defined as conduct that represents a wanton and willful disregard of an Employer's interest, deliberate violation of rules, disregard of standards of behavior which an Employer can rightfully expect from the employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the Employer's interest or employee's duties and obligations. Frick v. Unemployment Compensation Board of Review, 375 A.2d 879 (Pa. Cmwlth. 1977). The Employer bears the burden of proving that it discharged an employee for willful misconduct. City of Beaver Falls v. Unemployment Compensation Board of Review, 441 A.2d 510 (Pa. Cmwlth. 1982). The Employer bears the burden of proving the existence of the work rule and its violation. Once the Employer establishes that, the burden then shifts to the Claimant to prove that the violation was for good cause. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985).
Here, Heather Ninosky (Ninosky), RN Supervisor for DuBois Continuum of Care (Employer), testified that Claimant had a history of committing medication errors and had previously received "a written warning or a write up I should say and was told with the next medication error she would be terminated." Notes of Testimony, March 15, 2013, (N.T.) at 5. Ninosky explained the incident which led to Claimant's termination:
Then there was an incident where a resident did not receive an injection that was needed for their [sic] blood count. The resident then required several weeks later a
blood transfusion. And it was documented by the Claimant that it was not administered but after finding out the implications of what happened documented a month later that it was given. However, she documented that she administered the injection a day before it actually came to the facility from the pharmacy. So we had doubts about that documentation. And that was when the termination took place.N.T. at 5-6. Ninosky also testified that when medication is not noted at the time it was administered, "[t]here should be a late entry documented." N.T. at 9. Ninosky did not believe that Claimant documented the medication as a late entry. N.T. at 9.
Claimant admitted that she gave the injection a couple of days later than it was scheduled because the medication for the injection was not at the facility. Claimant admitted that she forgot to note that she administered the injection when she gave it. N.T. at 8. Claimant also admitted that she did not document the medication as a late entry. N.T. at 9.
The Board accepted Ninosky's testimony concerning the existence of Employer's policy, Claimant's awareness of the policy, and her violation of the policy. In unemployment compensation proceedings, the Board is the ultimate fact-finding body empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and to determine the weight to be accorded evidence. Unemployment Compensation Board of Review v. Wright, 347 A.2d 328 (Pa. Cmwlth. 1975). Findings of fact are conclusive upon review provided that the record, taken as a whole, provides substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977). Further, Claimant admitted that she did not note when she administered the medication and failed to make a "late entry" when she did note it. Claimant failed to present evidence to establish that she had good cause for her violation of Employer's policy. Claimant now argues that it was an accepted practice to go back into the "Emar" system later to fill in blanks regarding the administration of medication. She failed to present any evidence to support this in the record. This Court may not consider extra-record evidence. Pennsylvania Turnpike Commission v. Unemployment Compensation Board of Review, 991 A.2d 971 (Pa. Cmwlth. 2009).
The fact that Claimant did administer the medication does not change the fact that she violated Employer's policy. --------
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 6th day of February, 2014, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge