Opinion
No. 738 C.D. 2011
05-18-2012
Linda Hicks-Kenny, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
This case was assigned to the opinion writer on or before January 6, 2012, when President Judge Leadbetter completed her term as President Judge.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Linda Hicks-Kenny (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board). The Board affirmed the Unemployment Compensation Referee's (Referee) decision denying Claimant unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law) based on willful misconduct. For the reasons set forth below, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Claimant filed for unemployment compensation benefits subsequent to her discharge from employment with Wedge Medical Center (Employer) on September 27, 2010. The Philadelphia UC Service Center (Service Center) issued a determination finding Claimant eligible for unemployment compensation benefits. Employer appealed the Service Center's determination, and an evidentiary hearing was held before the Referee.
At the hearing before the Referee, Employer's witness and Chief Compliance Officer, Dr. Lawrence Schoen, testified that Employer has a policy in effect against falsification, altering, or tampering with client records. (Certified Record (C.R.), Item No. 8 at 11.) Employer conducted annual compliance training in order to inform employees of Employer's code of conduct, including the policy described above. (Id.) Claimant affirmed her compliance with the code of conduct by signing a document stating the same. (Id.) Upon a periodic inspection, Employer found twenty-seven (27) instances of duplicated progress notes written by Claimant. (Id. at 7, 8 and "Employer's Exhibit 1.") The notes were signed by Claimant and contained different dates, but repeated the same therapeutic notes in two or more cases for different patients. (Id. at 7.) Dr. Schoen testified that is very unlikely, if not impossible, to have the exact same events occur in different therapy sessions. (Id. at 13.) Specifically, he testified that the duplicated notes documented specific examples of behavior and specific assessment plans to deal with that behavior, making it unlikely that the same exact note and assessment would be repeated. (Id.)
In response, Claimant testified that the computer did not save her changes to her progress notes. (Id. at 17.) Essentially, Claimant testified that she used the same template for each client note, and, that prior to each session, she would highlight the body of the note, which contained a progress note from a previous patient, and then add the current date. (Id.) Subsequently, when the session concluded, she would go to the body of the note and start typing a new note in place of the previous note. (Id.) The only explanation Claimant provided for a duplicate note was that the computer did not save her changes when she attempted to type the new note in place of the previous note. (Id.) Claimant testified that she had previous computer issues in which she was unable to locate her saved progress notes. (Id.) However, Claimant also admitted that she did not proofread her notes prior to presenting them to her supervisor. (Id. at 22.) Finally, Claimant admitted to understanding Employer's policy against falsifying, altering, or tampering with client records. (Id.)
Following the hearing, the Referee issued a decision, which reversed the Service Center's determination granting unemployment compensation benefits pursuant to Section 402(e) of the Law. The Referee made the following relevant findings:
1. Claimant was last employed by the Wedge Medical Center as a counselor/therapist earning $44,000.00 per year. She was employed for 3 years, and her last day of work was September 27, 2008.
2. The employer has a code of conduct which prohibits the falsification of documents. The claimant was aware or should have been aware of the policy which was reviewed annually.
3. The claimant's job duties included meeting with clients and documenting the meetings with progress notes.
4. The employer became aware of a problem with the claimant's progress notes.
5. An audit was conducted of progress notes from January 2009 to September 2010.(C.R., Item No. 9.)
6. The audit revealed that progress notes were duplicated for client sessions on 27 separate occasions. The claimant was the author of the notes.
7. The claimant alleges that she used the same templates for the notes. The claimant alleges that she changed the dates in the computer, highlighted the body of the note, then entered new information.
8. The claimant alleges that the computer did not save her changes, and that she never proofread the notes.
9. By letter dated October 1, 2010, the claimant was terminated for the discrepancy and duplication of documents.
We note that this date was ultimately corrected by the Board to read "September 27, 2010." (C.R., Item No. 12.)
The Referee resolved any conflicts in testimony in Employer's favor. (Id.) The Referee concluded that Claimant's actions were in violation of Employer's policy against falsification of documents. (Id.) Furthermore, the Referee did not find Claimant's testimony credible that the computer failed to save her changes to the documents. (Id.) As a result, the Referee reasoned that Claimant did not establish good cause for her actions. (Id.) Therefore, the Referee categorized Claimant's actions as willful misconduct and denied her benefits. (Id.)
Claimant appealed to the Board, and the Board affirmed the Referee's decision. (C.R., Item No. 12.) The Board changed the Referee's finding of fact no. 1 to read "September 27, 2010," as opposed to, "September 27, 2008." (Id.) The Board adopted and incorporated the Referee's remaining findings of fact and conclusions of law. (Id.)
On appeal, Claimant argues that substantial evidence does not exist to support the Board's finding that twenty-seven (27) progress notes were duplicated by Claimant. Further, Claimant argues that the Board erred in finding her testimony not to be credible. Claimant also argues that the Board committed an error of law by concluding that Claimant's actions constituted willful misconduct. Finally, Claimant contends that her due process rights were violated when the Referee failed to allow her adequate time to review evidence and failed to assist her in examining witnesses during the hearing.
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.
First, we address Claimant's argument that substantial evidence does not exist to support the Board's finding that there were twenty-seven (27) instances in which Claimant duplicated client progress notes. 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).
Here, there is evidence in the record that during an investigative audit, twenty-seven (27) instances arose where client progress notes were duplicated in multiple files. (C.R., Item No. 8 at "Employer's Exhibit 1.") Claimant argues, however, that some of the twenty-seven (27) progress notes presented as evidence were original notes as opposed to duplicates. Claimant presented no evidence to refute this statement beyond her testimony that the duplication was a result of computer error. The Board chose not to believe that testimony which is well within its discretion. Johnson, 744 A.2d at 820. Accordingly, substantial evidence exists to support the Board's finding that Claimant duplicated progress notes.
We next address Claimant's argument that the Board erred in finding her testimony not to be credible. In an unemployment case, the Board is the final finder of fact and arbiter of credibility. Johnson v. Unemployment Comp. Bd. of Review, 744 A.2d 817, 820 (Pa. Cmwlth. 2000). The Board is also empowered to resolve conflicts in evidence. DeRiggi v. Unemployment Comp. Bd. of Review, 856 A.2d 253, 255 (Pa. Cmwlth. 2004). Here, the Board found Claimant's testimony to be not credible and resolved any conflicts in testimony in Employer's favor. These decisions are within the Board's discretion, and, therefore, Claimant's argument is without merit.
Claimant further contends that the Board erred in concluding that her actions constituted willful misconduct. Section 402(e) of the Law provides, in part, that an employee shall be ineligible for compensation for any week in which "his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work." The employer bears the burden of proving that the claimant's unemployment is due to the claimant's willful misconduct. Walsh v. Unemployment Comp. Bd. of Review, 943 A.2d 363, 369 (Pa. Cmwlth. 2008). The term "willful misconduct" is not defined by statute. The courts, however, have defined "willful misconduct" as:
Whether or not an employee's actions amount to willful misconduct is a question of law subject to review by this Court. Nolan v. Unemployment Comp. Bd. of Review, 425 A.2d 1203, 1205 (Pa. Cmwlth. 1981).
(a) wanton or willful disregard for an employer's interests, (b) deliberate violation of an employer's rules, (c) disregard for standards of behavior which an employer can rightfully expect of an employee, or (d) negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations.Grieb v. Unemployment Comp. Bd. of Review, 573 Pa. 594, 600, 827 A.2d 422, 425 (2003). An employer, seeking to prove willful misconduct by showing that the claimant violated the employer's rules or policies, must prove the existence of the rule or policy, and that the claimant violated it. Walsh, 943 A.2d at 369. Once an employer has met its burden, however, the burden then shifts to the claimant to show good cause as justification for the conduct considered willful. McKeesport Hosp. v. Unemployment Comp. Bd. of Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993) (citing Mulqueen v. Unemployment Comp. Bd. of Review, 543 A.2d 1286 (Pa. Cmwlth. 1988)).
Here, Employer established a policy against falsification, tampering, or altering of client records. An investigation revealed twenty-seven (27) instances in which Claimant duplicated progress notes for different patients. (C.R., Item No. 8 at 7-8.) In addition, Claimant admitted that she was aware of, and understood, Employer's policy against falsifying documents. (Id. at 17.) Accordingly, Employer established willful misconduct by proving the existence of the policy, as well as Claimant's violation of that policy. Walsh, 943 A.2d at 369. Once an employer has met this burden of establishing willful misconduct, however, we must determine whether the claimant established good cause. McKeesport Hosp., 625 A.2d at 114.
Claimant failed to establish good cause for the duplicate client records. At the hearing in front of the Referee, Claimant testified that the only explanation for the duplicated notes was computer error. Specifically, Claimant stated that, when using a template to create her notes, the computer did not save her changes when she attempted to type the new note in place of the previous note. (C.R., Item No. 8 at 17.) However, the Board did not find that testimony credible, which is within its discretion. Johnson, 744 A.2d at 820. Beyond her testimony, Claimant failed to provide any evidence of computer error as the cause for the duplicated progress notes. As a result, Employer established willful misconduct, and Claimant failed to prove a good cause justification for her actions of duplicating client notes.,
We note that Claimant attempts to argue that the Board erred in finding willful misconduct because the evidence of computer error as good cause is uncontested. Dr. Schoen, however, stated that he was unaware of Claimant's computer issues. (C.R., Item No. 8 at 14.) This statement creates a conflict in testimony between Employer and Claimant, and the Board chose to resolve any conflicts in Employer's favor. However, even assuming that the computer issue is uncontested, as the ultimate finder of fact, the Board has the right to disbelieve Claimant, even though her testimony was uncontradicted. Treon v. Unemployment Comp. Bd. of Review, 499 Pa. 455, 460, 453 A.2d 960, 962 (1982).
Claimant further attempts to argue that even if her actions constituted willful misconduct, those actions were ratified by her supervisor. (Claimant's Brief at 11.) However, "[a] disregard of rightfully expected standards of behavior has been described as including a knowing falsehood or misrepresentation to an employer by an employee concerning an employee's work." DeRiggi, 856 A.2d at 256 (quoting Groover v. Unemployment Comp. Bd. of Review, 579 A.2d 1017, 1019 (Pa. Cmwlth. 1990). Dishonesty constitutes a disregard of expected standards of behavior where the employee's actions are affirmatively deceptive. Id. The Board chose to discredit Claimant's testimony that a computer error caused the duplicate progress notes. Furthermore, ratification by a supervisor does not excuse Claimant's dishonesty which constitutes willful misconduct.
Finally, we address Claimant's argument that the Referee violated her due process rights regarding examining witnesses and her ability to review documents offered as exhibits. We initially note that "[t]he essential elements of due process are notice and an opportunity to be heard in a full and fair hearing before an impartial decision maker." Leone v. Unemployment Comp. Bd. of Review, 885 A.2d 76, 80 (Pa. Cmwlth. 2005). Regarding the Referee, an allegation of due process essentially challenges whether the referee conducted the hearing in accordance with Section 101.21 of Title 34 of the Pennsylvania Code, 34 Pa. Code § 101.21. Hackler v. Unemployment Comp. Bd. of Review, 24 A.3d 1112, 1115 (Pa. Cmwlth. 2011). Section 101.21 provides the following:
Where a party is not represented by counsel the tribunal before whom the hearing is being held should advise him as to his rights, aid him in examining and cross-examining witnesses, and give him every assistance compatible with the impartial discharge of its official duties.34 Pa. Code § 101.21. In interpreting this regulation, the courts have held that, in addition to advising pro se parties of their rights and aiding them in questioning witnesses, referees should reasonably assist pro se parties to elicit facts that are probative for their case. Hackler, 24 A.3d at 1115 (citing Bennett v. Unemployment Comp. Bd. of Review, 445 A.2d 258, 259-60 (Pa. Cmwlth. 1982)). The referee must act reasonably in eliciting necessary facts. Hackler, 24 A.3d at 1115.
We find no due process violation on behalf of the Referee. Based upon a review of the record, it is evident that the Referee explicitly described the procedure of the hearing. (C.R., Item No. 8 at 4-5.) Specifically, the Referee stated, "I will have questions to help bring out the facts in this case. That will be the procedure for this afternoon. Ms. Hicks-Kenny do you understand the procedure?" (Id. at 5.) Claimant responded, "Yes, I do." (Id.) The Referee inquired as to whether Claimant had any questions regarding the procedure and Claimant informed the Referee that she did not. (Id.) Claimant further stated that she understood her right to legal counsel. (Id. at 2.) Regarding any documents that Claimant had not previously seen, the Referee allowed Claimant time to review any and all documents prior to their submission into evidence. (Id. at 10, 11.) When Claimant objected to the submission of documents, the Referee heard Claimant's objection and explained whether the document would be submitted. (Id. at 19.) Moreover, the Referee allowed Claimant an opportunity to elicit testimony from Employer's witnesses and instructed Claimant on the procedure for examining witnesses. (Id. at 13, 14.) At the close of the hearing, the Referee allowed Claimant to provide any testimony not already on the record. (Id. at 22.) The Referee elicited appropriate facts from Claimant, informed her of her rights, and assisted her in questioning witnesses. Accordingly, we find no due process violation by the Referee.
Claimant also attempts to argue that the Referee did not grant her sufficient time to review documents. However, Claimant did not raise this objection before the Referee, and the argument, therefore, is waived. Phoebus v. Unemployment Comp. Bd. of Review, 573 A.2d 649, 651 (Pa. Cmwlth. 1990); Dehus v. Unemployment Comp. Bd. of Review, 545 A.2d 434, 436 (Pa. Cmwlth. 1988). --------
For the foregoing reasons, we affirm the Board's order.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 18th day of May, 2012, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge