Opinion
No. 784 C.D. 2012
11-28-2012
Margaret H. Carpenter, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Margaret H. Carpenter (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board), denying Claimant's application for unemployment compensation benefits. The Board reversed a Referee's decision granting benefits. The Board concluded, in contrast to the Referee, that Presbyterian Senior Living (Employer) satisfied its burden to prove that Claimant engaged in willful misconduct which rendered her ineligible for benefits. We affirm the Board's order.
Claimant worked for Employer as a part-time personal care licensed practical nurse beginning on September 26, 2002. On October 24, 2011, Claimant placed a blanket across the legs or waist of a patient and on or through the arms of the patient's wheelchair, in what Employer viewed as an attempt to prevent the patient from getting out of the wheelchair and walking around. Following Employer's investigation of the incident, Employer concluded that Claimant's actions violated its policy precluding the use of restraints on patients. Based upon that conclusion, Employer suspended Claimant and ultimately discharged her for the violation of the restraint policy.
Claimant filed an application for unemployment compensation benefits. The local unemployment compensation service center issued a notice of determination, finding Claimant eligible for benefits. Employer appealed that determination. A Referee conducted a hearing and issued a decision in which he concluded that Claimant did not engage in willful misconduct, and the Referee granted benefits. The Referee reasoned that Claimant had not used the blanket as a restraint, but rather as a means to "keep the restless patient occupied so the [C]laimant and her co-workers could complete their job duties." The Referee also noted that Employer had not provided any first-hand testimony to show that the patient was restrained by the blanket.
Employer appealed the Referee's decision to the Board. The Board found Employer's evidence credible and resolved conflicts in the evidence in favor of Employer. The Board found that Employer had a policy against the restraint of patients, and that Claimant was aware of the policy. (Findings of Fact (F.F.) nos. 2, 3.) The Board also made the following findings:
6. The [C]laimant [placed the blanket on the patient] because she wanted to keep the patient from getting out of the wheelchair and walking around.(Board Decision, F.F. nos. 6-8.) Based upon the findings, the Board concluded that Claimant engaged in willful misconduct by violating Employer's policy prohibiting the restraint of patients, without good cause. Consequently, the Board deemed Claimant ineligible for benefits.
7. The purpose of the blanket was to restrict the patient's movement.
8. The [C]laimant did not place the blanket on the patient because the patient was cold.
Claimant petitioned for review of the Board's decision, raising the following issues: (1) whether findings of fact numbers 3, 6, and 7 are supported by substantial evidence; and (2) whether the Board erred in concluding that the factual findings support its conclusion that Claimant's actions constitute willful misconduct.
This Court's standard of review of a decision of the Board is limited to considering whether necessary factual findings are supported by substantial evidence, whether the Board erred as a matter of law, and whether any constitutional rights were violated. 2 Pa. C.S. § 704.
We begin by addressing Claimant's assertion that three of the findings of fact are not supported by substantial evidence. 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).
The Board found in finding of fact number 3 that "[C]laimant was aware of . . . [E]mployer's policy [regarding the use of restraints on a patient]." Claimant acknowledges that Employer submitted evidence that she had a copy of Employer's "Policies & Procedures Manual," but asserts that the manual does not contain any reference to Employer's restraint policy. The work rule Employer alleged Claimant violated was Number 33, which is a catch-all provision for "[o]ther similar misconduct or violation of policy." (Certified Record (C.R.), Item No. 17, Employer's Ex. E-1.) Claimant asserts that although Employer (1) introduced its restraint policy into the record and (2) submitted evidence that Claimant received on-line training regarding the use of restraints, there is no clear evidence that Employer sufficiently apprised Claimant of the actual policy. Claimant relies on the testimony of one of Employer's witnesses, who also took the on-line course, but admitted that the course did not cover the details of Employer's policy.
Claimant testified that she understood Employer's policy to mean that she could not "restrain a patient. You can't tie them to anything, you can't strap them down in a bed or a wheelchair, you can't restrain them." (C.R., Item No. 17 at 42.) Thus, Claimant's testimony supports a finding that Claimant was aware of the existence of Employer's policy, but her testimony does not indicate that Claimant understood the nuances of Employer's interpretation of the word "restraint." Claimant also testified that she completed Employer's on-line training program regarding the use of restraints.
Employer maintains its restraint policy in its policy and procedures manual. (C.R., Item No. 17 at 12.) Persons interested in the policy can access it in a binder in the facility or on-line. (Id.) Employer submitted a copy of the policy, which provides:
Utilization of restraints—
Physical Restraints—any method of physically restricting a person's freedom of movement, physical activity, or normal access to his or her body
1. Physical restraints include leg restraints, arm restraints, hand mitts, vests, seat belts, [sic] easily remove. Also included as restraints are facility practices that meet the definition of a restraint, such as:
• Tucking in, or using Velcro to hold a sheet, fabric or clothing tightly so that a resident's movement is restricted.
• Placing resident in a chair that prevents rising such as: Geri-chair, Rock-n-go, Broda chair if resident could normally rise unassisted from another chair.
• Placing a chair or bed so close to a wall that the wall prevents the resident from rising out of the chair or voluntarily getting out of bed.
• Placing a resident in a locked wheel chair close to a table so that the resident cannot move from the table.
Employer offered the testimony of two witnesses. The first witness, Employer's Administrator, Paul Cercone, testified:
[Q]. And the, the use of restraint—the purported use of restraint that you described involving using a blanket
across someone in a wheelchair to restrain them was that the type of thing covered in this training as well?(Id. at 17 (emphasis added).)
[A]. That is correct.
The second witness, Jammie Lang, Employer's D irector of Nursing/Assistant Administrator, testified regarding the on-line restraint training course as follows:
[Q]. From your experience undergoing that training what does it say with regard to the use of a blanket or other similar device when someone is in a chair?(Id. at 29 (emphasis added).) The above-quoted testimony supports finding of fact number 3, because it demonstrates that the on-line training course made clear that methods that prohibit a resident's movement fall within the category of prohibited restraints. Because the record indicates that Claimant took the course, we conclude that substantial evidence supports the Board's finding that Claimant was aware of the nature of Employer's restraint policy.
[A]. You cannot use that as a restraint. Anything that prohibits a resident's movement is considered a restraint.
With regard to Finding of Fact number 6, which, as noted above, provides that "[C]laimant [placed the blanket on the patient] because she wanted to keep the patient from getting out of the wheelchair and walking around," we conclude that Claimant's own testimony provides substantial evidence in support of this finding. Claimant testified that she placed the blanket over the patient as a means to prevent the patient from arising from the wheelchair. (Id. at 45.)
Finding of Fact number 7 provides that "[t]he purpose of the blanket was to restrict the patient's movement." Claimant's testimony also supports this finding. Claimant testified that she placed the blanket over the patient's legs "to keep her safe. To keep her from falling . . . [and] because we couldn't stay with her." (Id. at 49, 46.) Taking actions that are intended to prevent a person from falling by limiting his or her ability to move are actions that are intended to restrict the person's movement. Thus, we conclude that substantial evidence supports finding of fact number 7.
The final issue Claimant raises is whether the Board erred in concluding that Claimant's actions constitute willful misconduct. Section 402(e) of the Unemployment Compensation Law (Law) renders employees who are terminated because of willful misconduct ineligible for benefits. Although the Law does not define the term "willful misconduct," courts have described willful misconduct as falling within four primary categories: (1) the wanton or willful disregard of the employer's interest; (2) a deliberate violation of the employer's rules; (3) the disregard of standards of behavior which an employer can rightfully expect from an employee; and (4) negligence indicating an intentional disregard of the employer's interest or the employee's duties or obligations. Frumento v. Unemployment Comp. Bd. of Review, 466 Pa. 81, 351 A.2d 631 (1976).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
In cases involving a violation of an employer's rules, an employer has the burden to establish the existence of the rule or policy, the reasonableness of the rule or policy, and that the claimant was aware of the existence of the policy. Bishop Carroll High School v. Unemployment Comp. Bd. of Review, 557 A.2d 1141, 1143 (Pa. Cmwlth. 1989), appeal denied, 525 Pa. 604, 575 A.2d 569 (1990). Furthermore, an employer bears the burden to show that the claimant actually violated the rule or policy. Arbster v. Unemployment Comp. Bd. of Review, 690 A.2d 805 (Pa. Cmwlth.), appeal denied, 549 Pa. 718, 701 A.2d 579 (1997).
The Board's finding of fact number 2 indicates that Employer has a restraint policy and, finding of fact number 3 indicates that Claimant was aware of the policy. Employer adopted its policy in order to comply with regulations adopted by the Department of Public Welfare that prohibit the use of restraints. Therefore, the policy, which tracks the Department of Welfare's regulations, appears to be reasonable.
One such regulation, 55 Pa. Code § 2600.202, provides:
The following procedures are prohibited:Another regulation defines abuse as:
. . . .
(5) A mechanical restraint, defined as a device that restricts the movement or function of a resident or portion of a resident's body, is prohibited. Mechanical restraints include geriatric chairs, handcuffs, anklets, wristlets, camisoles, helmet with fasteners, muffs and mitts with fasteners, poseys, waist straps, head straps, papoose boards, restraining sheets, chest restraints and other types of locked restraints. A mechanical restraint does not include a device used to provide support for the achievement of functional body position or proper balance that has been prescribed by a medical professional as long as the resident can easily remove the device.
(6) A manual restraint, defined as a hands-on physical means that restricts, immobilizes or reduces a resident's ability to move his arms, legs, head or other body parts freely, is prohibited. A manual restraint does not include prompting, escorting or guiding a resident to assist in the ADLS or IADLs.
An action which may cause or causes actual physical or emotional harm or injury, which is not caused by simple negligence, constitutes abuse. An action such as striking or kicking a patient/resident, restraining a patient/resident improperly or without authorization, and other actions which can be seen as causing physical pain to a patient/resident are strictly forbidden.55 Pa. Code § 14.5. --------
Claimant argues that even if Employer established the existence of the restraint policy and Claimant's knowledge of the policy, the evidence is insufficient to demonstrate that Claimant violated the policy. Claimant relies upon her testimony that she only placed the blanket on the patient's legs as a means to deter the patient from getting up and walking about, and that the reason she did so was for the patient's safety. Claimant argues that the only testimony regarding the manner in which the patient was confined to her wheelchair came from a witness who observed the patient an hour or more after Claimant placed the blanket on the patient. Thus, she suggests that that testimony is insufficient to establish that Claimant violated the policy.
The testimony to which Claimant refers was that of Katie Winzenried, a certified nursing assistant who works for Employer. Ms. Winzenried testified as follows regarding what she saw:
[Q]. Okay and did you notice anything about her condition at the time that got your attention?
[A]. She had a sheet or a blanket or something like wrapped like around her waist.
[Q]. And where did it go after it went around her waist, could you tell?
[A]. No, the back of her was to the wall.
[Q]. And did you notice anything in particular about the appearance of this sheet or blanket around her waist?
[A]. Well it was like this—like wrapped around her. You imagine like it would be tied because the sheet was like holding her there in her chair.(C.R., Item No. 17 at 20.) In testifying, the witness made gestures to describe what she saw, and counsel for Employer described the gesture as follows: "The gesture you've indicated was you used your hands almost like in a belt area across the waist." The witness responded, "Correct." Id. The witness also testified that "it appeared like she was tied into the chair." (Id. at 21). Given the Board's authority to resolve conflicts in the evidence, Umedman v. Unemployment Comp. Bd. of Review, 52 A.3d 558, 562 (Pa. Cmwlth. 2012), and to reject the testimony of Claimant entirely, Greif v. Unemployment Comp. Bd. of Review, 450 A.2d 229, 230 (Pa. Cmwlth. 1982), the Board rejected Claimant's testimony suggesting that the conditions pertaining to the patient changed over time. The Board has the power to reach all logical inferences that may be drawn from the evidence. Taylor v. Unemployment Comp. Bd. of Review, 378 A.2d 829, 831 (Pa. Cmwlth. 1977). Thus, we conclude that the Board did not err in inferring that the circumstances as described by Ms. Winzenried existed at the time Claimant placed the blanket on the patient.
Moreover, Ms. Lang, Employer's Director of Nursing, who conducted an investigation of the incident, testified as follows:
[Q]. Did [Claimant] ever indicate to you that the blanket across [the patient]'s waist was there for any purpose other than to prevent her from getting up?
[A]. No she did not indicate that.
[Q]. Did she indicate how it was—how the blanket was fastened or attached in, in—behind the wheelchair?
[A]. She would not answer that question when I asked her.
[Q]. What specifically did you ask her that she would not answer?(C.R., Item No. 17 at 30-31.) It was not unreasonable for Employer at the time it was conducting its investigation to draw a negative inference from Claimant's refusal to answer the question. This testimony might also have been one reason why the Board concluded that Claimant's testimony was not credible regarding the manner in which she placed the blanket on the patient. Thus, while Claimant seeks to challenge the Board's finding that Claimant restrained the patient and to characterize her actions as being simply a method of discouraging or deterring the patient from moving, other evidence indicates that Claimant's actions were consistent with a method of restraint. The Board simply found Employer's witnesses more believable. Based upon the foregoing, we conclude that the factual findings support the Board's legal conclusion that Claimant violated Employer's policy against using restraints on patients.
[A]. I asked how it was tied if it was tied around the chair and how it was secured if it was secured and she would not answer the question.
. . . .
[Q]. Did she ever indicate that she didn't know it was secured or if it was secured?
[A]. She did not indicate that either.
Accordingly, we affirm the Board's order denying Claimant's application for benefits.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 28th day of November, 2012, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge