Opinion
14-P-617
04-13-2015
VILMA HERRERA v. COMMISSIONER OF THE DEPARTMENT OF PUBLIC HEALTH.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Vilma Herrera, a certified home health aide, appeals from the judgment of the Superior Court affirming the decision by the Department of Public Health (DPH) to place her name on the Nurse Aide Registry for misappropriating client funds. We affirm.
The placement on this registry maintained by DPH for an adjudicated finding of misappropriation effectively precludes Herrera from working at any other licensed care facilities. In this context, misappropriation is "the deliberate . . . wrongful, temporary or permanent use of . . . money without. . . consent." G. L. c. 111, § 72F; 105 Code Mass. Regs. § 155.003. See G. L. c. 111, § 72J.
Background. Herrera was employed as a home health aide by Mutlicultural Home Care and worked at the home of its client C.S. and his wife, A.S. During Herrera's employment, the couple's daughter was reviewing her parents' finances and noticed that there was a signature on one check for $600 made out to Herrera that appeared to be a forgery. The daughter filed a complaint with the Boston police department. Thereafter, Herrera's employer reported the incident to DPH. After an investigation, DPH found that Herrera had misappropriated client funds and entered her name on the Nurse Aide Registry. Herrera appealed. A magistrate of the Division of Administrative Law Appeals (DALA) upheld DPH's decision, and the Superior Court affirmed.
For reasons of privacy, we refer to the clients by their initials.
A criminal complaint issued and was later dismissed when Herrera paid $600 to the family.
Discussion. We review DPH's decision to determine if it was "unsupported by substantial evidence, arbitrary, capricious, or otherwise based on an error of law." Lincoln Pharmacy of Milford, Inc. v. Commissioner of Div. of Unemployment Assistance, 74 Mass. App. Ct. 428, 431 (2009). DPH presented the forged check and Herrera's own signatures on her time cards to support the claim that Herrera forged C.S.'s signature on the check. As the fact finder, the magistrate was qualified, without the aid of expert testimony, to compare the disputed signature on the check with C.S.'s known signatures on the time sheets and to infer a lack of authenticity. See Commonwealth v. O'Connell, 438 Mass. 658, 662-663 (2003); Okoli v. Okoli (No.1), 81 Mass. App. Ct. 371, 379 n.13 (2012). The magistrate's finding regarding the difference between the two signatures was supported by her comparison of the documentary evidence alone.
A copy of the check with C.S.'s alleged signature as well as copies of several daily time sheets signed by C.S. and Herrera were admitted in evidence. Herrera verified her signatures on the time sheets as well as C.S.'s signatures executed in her presence.
This finding was further supported by hearsay evidence from the Boston police department incident report. The magistrate was entitled to consider this evidence as "the kind of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs." Embers of Salisbury, Inc. v. Alcoholic Bevs. Control Commn., 401 Mass. 526, 529 n.5 (1988), quoting from G. L. c. 30A, § 11(2).
The magistrate was not required to accept Herrera's defense of consent. Assessing witness credibility is uniquely vested in the discretion of the agency. Ingalls v. Board of Registration in Med., 445 Mass. 291, 301 (2005). While Herrera is correct that the magistrate's rejection of her testimony cannot be substantial evidence of the misappropriation, C.S.'s failure to testify also does not compel the magistrate to accept Herrera's testimony as accurate. See Covell v. Department of Social Servs., 439 Mass. 766, 787 (2003). The magistrate provided several reasons for doubting the plausibility of Herrera's story, including her payment of $600 to the family to resolve the criminal case and the unusual and unprecedented nature of the transaction with the client. The magistrate found that Herrera's explanation was not credible, and we will not disturb that decision, Lincoln Pharmacy of Milford, Inc. v. Commissioner of Div. of Unemployment Assistance, 74 Mass. App. Ct. at 434, especially in light of the documentary evidence presented to the magistrate. Based on the record before the magistrate, Covell, supra, at 783, there was substantial evidence to support the finding of misappropriation.
Herrera claimed that she wrote out a check in the amount of $600 at the request of C.S., which C.S. then signed. After depositing the check in her own account, she withdrew the funds, bought the items C.S. requested, and returned the change ($545) on her next scheduled work day, three days later. Herrera claimed that C.S. wrote the check for such a large amount because he wanted cash on hand.
Herrera asserts that the resolution of the criminal case cannot be substantial evidence that she forged the check. However, the magistrate used the evidence of Herrera's repayment of the full $600 amount to assess the credibility of Herrera's claim of consent, not as substantive evidence of the forgery.
As part of her duties Herrera would do light cleaning as well as purchase groceries and other essentials for the couple, but Herrera testified that she had never engaged in a transaction like this in the past. A representative from Herrera's employer testified that such a transaction, using the proceeds of a check to purchase groceries, violated the company's policy regarding financial transactions with clients.
Judgment affirmed.
By the Court (Grainger, Brown & Milkey, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: April 13, 2015.