Opinion
No. 2411 C.D. 2010
06-14-2011
Mercy Fitzgerald Hospital, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JOHNNY J. BUTLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE PELLEGRINI
Mercy Fitzgerald Hospital (Employer) petitions for review of the order of the Unemployment Compensation Board of Review (Board) reversing the decision of the Unemployment Compensation Referee (Referee) and finding Elizabeth P. Teres (Claimant) not ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law) because Employer failed to establish that Claimant's actions amounted to willful misconduct. Discerning no error in the Board's decision, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). That section provides in pertinent part:
An employe shall be ineligible for compensation for any weekWhile the term "willful misconduct" is not specifically defined in the Law, the Supreme Court of Pennsylvania has provided the following definition:
(e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work, irrespective of whether or not such work is "employment" as defined in this act.
(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 Compensation Board of Review, 573 Pa. 594, 827 A.2d 422 (2003) (citing Navickas v. Unemployment Compensation Review Board, 567 Pa. 298, 787 A.2d 284 (2001)). To show willful misconduct, an employer must present evidence that the employee's conduct was intentional and deliberate, not just that the employee committed a negligent act. Grieb, 573 Pa. at 600, 827 A.2d at 426. The court must consider all the facts and circumstances when making this determination, including the employee's proffered reasons for noncompliance.
While the following basic facts are not in dispute, the details of what occurred on the night in question are highly disputed and will be discussed at length below. Claimant was employed with Employer for almost 24 years and was last employed as a permanent, part-time staff nurse/registered nurse in the hospital's psychiatric ward. At the time Claimant worked in the psychiatric ward, Employer had in place specific procedures regarding the use of seclusion and restraints for patients who become violent, self-destructive, or whose behavior jeopardizes the physical safety of the patient or others. During the evening shift on January 7, 2010, two patients on the psychiatric unit became disruptive: Patient 1 wandered the halls and was yelling and screaming, disrupting the other patients who were trying to sleep; and Patient 2 was physically combative, assaulting several staff members. Claimant was the assigned nurse for both Patient 1 and Patient 2 that evening. In addition, as the charge nurse Claimant was responsible for managing the other nurses and psychiatric technicians on staff. The husband of Patient 1 later complained to Employer that his wife was improperly secluded on January 7, 2010, prompting Employer to launch an investigation. After reviewing videotape of the psychiatric ward on the night in question, Employer first suspended and then terminated Claimant's employment, alleging she violated policy, mistreated patients and falsified documents. Claimant filed an unemployment compensation claim, which the Office of UC Benefits granted because while Claimant violated Employer's work rule, she was not aware of the rule. Employer appealed this decision to the Referee.
Susan Szilagyi (Ms. Szilagyi), Patient Care Manager at Mercy Fitzgerald Hospital, testified on behalf of Employer. Ms. Szilagyi's duties include staffing, scheduling, supervising the staff, and handling patient complaints, and she has managerial responsibility for Employer's psychiatric unit. According to Ms. Szilagyi, Claimant was the charge nurse on January 7, 2010, meaning she was in charge of the unit and responsible for supervising the other nurses and psychiatric technicians on duty. Claimant was also personally responsible for the care of numerous patients, including the two at issue in this case. After Patient 1's husband filed a complaint alleging mistreatment, Ms. Szilagyi spoke to several patients and decided an investigation was warranted. As part of this investigation, Ms. Szilagyi reviewed 32 hours of video footage from security cameras located throughout the psychiatric unit. She also interviewed several patients and Claimant herself.
During the hearing, Ms. Szilagyi narrated portions of the videotape which showed Patient 1 walking up the hall to the nurses' station several times and being escorted back to her room. Patient 1 was then escorted to the day room, a communal room at the end of the hallway with glass from floor to ceiling. A psychiatric technician then closed the door to the day room (which opens inward), placed a small table in front of the door, and sat at the table to observe Patient 1. Ms. Szilagyi pointed out several times on the video tape when Patient 1 would open the door and attempt to exit the room. The psychiatric technician would then move the table, turn off the lights, close the door, and move the table back in front of the door. During the time that Patient 1 was in the day room, Claimant was attending to a new admission. Also during this time period, Patient 2 was placed in four-point restraints in the quiet room, a room located off the nurse's station, because she became violent and swung at a security officer who was on the unit. Patient 2 eventually calmed down enough to be removed from the quiet room. When that happened, Ms. Szilagyi stated that Patient 1 was then transitioned to the quiet room and placed in seclusion there because she had not yet calmed down. After Patient 1 calmed down and was returned to her room, Patient 2 became violent again and was placed back in the quiet room in four-point restraints.
Ms. Szilagyi testified that according to Employer's policies, "[s]eclusion is the act of physically preventing a person or involuntarily preventing a person from leaving a particular area." It is a highly restrictive intervention that "may only be used for the management of violent or self-destructive behavior that jeopardizes the immediate physical safety of the patient or others." Employer's Restraints and Seclusion Policy defines restraint as "an involuntary method (chemical or physical) of restricting an individual's freedom of movement, physical activity, or normal access to the body." Specifically, the policy defines physical restraint "as any manual, physical or mechanical device, material, or equipment applied directly to a patient, with or without patient permission to restrict his or her freedom of movement." The requirement is that patients on the psychiatric ward be treated in the least restrictive setting possible and nurses must utilize de-escalation techniques first, such as talking, deep breathing, relaxation techniques, and having the patient sit in a quiet area or listen to music, in order to prevent having to seclude or restrain the patient. Also, Employer's policy states that seclusion and restraint may not be used simultaneously; meaning that if a patient is in four-point-restraints the door to the room where he or she is being restrained may not be locked. Employer provides education on the contents of its restraint and seclusion policy on a yearly basis. Employer's policies are also posted on the internet, available in binders located at the nurses' station, and the patients' bill of rights policy is posted on the psychiatric unit.
Ms. Szilagyi testified that based upon her review of the videotapes and her interviews, Patient 1 was secluded in the day room. Based upon Ms. Szilagyi's investigation Employer concluded that Patient 1 did not demonstrate agitation, physically assaultive or aggressive behavior, and there was no evidence that Patient 1 was at risk of danger to herself or others at the time she was secluded. While Patient 1 was loud and screaming, Ms. Szilagyi stated that this is not, in and of itself, considered a safety risk or threat of harm warranting seclusion. According to Ms. Szilagyi, Claimant did not attempt proper de-escalation techniques with Patient 1 and there was no physician's order for secluding Patient 1 in the day room, as required by Employer's policy. Ms. Szilagyi testified that when a patient is secluded or restrained, there must be documentation of the attempts made to de-escalate his or her behavior as well as an observation flow sheet which documents the patient's behavior every 15 minutes, the care provided to the patient, and the response of the patient to the intervention. No such medical documentation was completed for Patient 1 while she was in the day room. Ms. Szilagyi also testified that the day room was not appropriate for seclusion of a patient because there are too many objects and structures in the room which could pose safety hazards. In addition, the door to the day room does not lock and the patient would be in full view of other patients on the unit, in violation of the patient's confidentiality and in violation of the patient's right to be treated with dignity and respect. As a result of the investigation, Employer found there was verbal abuse towards Patient 1 and intimidating behavior and disrespect of her dignity, in violation of Employer's policy on colleague responsibility.
With respect to Patient 2, Ms. Szilagyi testified that she was placed in four-point-restraints in the quiet room due to repeated violent outbursts and physically assaulting staff. However, Ms. Szilagyi testified that while Patient 2 was in restraints the door to the quiet room was closed and locked, in violation of Employer's policy. The door to the quiet room is a solid door with only a six inch by six inch window for observation. In addition, she testified that Employer's policy requires that when a patient is restrained, continual observation must occur. According to Ms. Szilagyi, this is one-to-one supervision, meaning direct eyesight supervision within an arms' length of the patient. Ms. Szilagyi reviewed the video tape and pointed out to the Referee that during Patient 2's restraint, no staff member was stationed in the quiet room or directly outside the door. At many points, no staff member was within arms' length of Patient 2 and at some points the staff members had their backs turned toward the quiet room. While several individuals passed by or went into the quiet room briefly, at no point was there continual, one-on-one observation of Patient 2 as required. Ms. Szilagyi also testified that Employer's policy requires that patients who are restrained must have their respiration and vital signs assessed and that this did not occur with Patient 2. Despite these facts, Claimant documented that Patient 2 was continuously observed by staff and that her medical condition was monitored every 15 minutes.
Glenn Lucas (Mr. Lucas), the Nurse Educator at Mercy Hospital, testified on behalf of Employer that he provides the mandatory training programs for Employer's nurses. He stated that he trained Claimant on restraint and seclusion policy and procedures several times, the last being in March 2009. According to Mr. Lucas, one-on-one observation means someone is fully assigned to one patient and that is their only assignment. The employee must be face-to-face in close proximity to the patient, meaning either in the room or in the doorway. Mr. Lucas testified that Employer's policy is that anyone who is restrained must receive one-on-one observation and this should be part of the physician's order. This is because the restrained patient could vomit, have a seizure, or another urgent situation in which they need immediate attention. Mr. Lucas also testified that he was the patient care manager at the hospital from 2003 to 2008 and during that time he was not aware of any nurse placing a psychiatric patient in the day room and then sliding a table in front of the door, as Claimant and her psychiatric technician did with Patient 1.
Claimant testified that she has been a registered nurse specializing in psychiatric care for over 23 years, and the night in question was one of the busiest nights she ever experienced as a nurse, with two admissions and two patients acting out. In addition, Claimant was the charge nurse and was personally responsible for 9 to 11 patients of her own. According to Claimant, Patient 1 had been on the unit for approximately three weeks and was highly problematic. Patient 1 would have incidents of major acting out at night, including wandering the halls and screaming in her room, which disturbed the other patients who were trying to sleep. Claimant testified that she spoke to Patient 1 many times to see if there was something they could do to help her and that she also spoke to Patient 1's psychiatrist to adjust her medication.
On the night in question, Claimant testified that Patient 1 was screaming and wandering the halls. According to Claimant, she walked Patient 1 back to her room, asked why she was screaming, but did not get an answer. Claimant stated that she used several de-escalation techniques in an attempt to get Patient 1 to calm down, including speaking to her and giving her medication. However, these interactions took place in Patient 1's bedroom, which cannot be seen on the video footage. Claimant testified that when these de-escalation techniques did not work, she tried to give Patient 1 a "timeout" in the dayroom:
[S]he was creating a disturbance, she was loud, she was disruptive and we were trying to give her a timeout and [sic] in the dayroom because her room was in the middle of the row of rooms and so she was disturbing pretty much the majority of the unit at night and the dayroom was off to one - is off to one end of the unit and so there would be less noise there, so if she was screaming she wasn't disturbing as many patients, so that's why we chose the dayroom, the quiet room was occupied. I was a little hesitant to take [Patient 2] out of the quiet room because of her assault - her previous assaulting behavior, so I wanted to try the dayroom first.According to Claimant, Patient 1 was not secluded in the day room because the door was not locked and Patient 1 was told she was free to return to her room as soon as she calmed down and stopped screaming. Claimant testified that she utilized this "timeout" technique before and had never been questioned for placing a patient in the day room for a timeout in the past.
Regarding Patient 2, Claimant testified that the door to the quiet room was ajar the entire time Patient 2 was restrained; therefore, Patient 2 was not restrained and secluded at the same time. Claimant stated that staff was able to see and hear everything in that room from the nurse's station and every time she went to the medication room she could see Patient 2 in the quiet room. On cross examination, Claimant agreed that Employer's policy states that observation of restrained or secluded patients must be continuous. She admitted that at several points on the video tape no one was watching Patient 2 in the quiet room; however, she believed that the staff complied with her understanding of Employer's policy. Claimant admitted, after watching the video tape, that at several points the technician's table was blocking the day room door and preventing Patient 1 from leaving the room. As to documentation, Claimant stated that she was personally responsible for providing documentation on all of the patients assigned to her that night and that she simply did the best she could.
The Referee issued a decision and order finding that Employer met its burden of proving willful misconduct on the part of Claimant. The Referee stated that Claimant's actions were not in the best interest of Employer and violated Employer's standard operating procedures for providing care to its patients. Specifically, the Referee found that "Claimant did not intervene with a particular patient prior to seclusion despite the patient's lack of aggression or other signs of violence," and "[t]he video did not show other measures were taken before the patient was secluded as required under the Employer's policy of which the Claimant was aware." The Referee also found that Claimant was personally responsible for the care of this patient on the night in question and that Claimant was in charge of the psychiatric technician who mistreated the patient by barricading the patient in the day room. The Referee reversed the determination of the Office of UC Benefits and denied Claimant benefits under Section 402(e) of the Law.
Claimant appealed to the Board, which reversed the determination of the Referee and granted Claimant benefits. The Board found Claimant's testimony to be credible that Patient 1 was yelling, screaming, and disrupting other patients and that Claimant and another nurse tried less aggressive de-escalation procedures with her, but they did not work. The Board noted that the videotape which Employer's witness reviewed did not contain audio; therefore, the witness could not discern the patient's screaming or if any verbal de-escalation techniques were utilized. Within one hour of Patient 1's seclusion, she was seen by a doctor who approved the seclusion, as required by Employer's policy. Therefore, the Board found that Employer failed to present sufficient evidence of willful misconduct regarding the way Claimant dealt with the first disruptive patient.
Regarding Patient 2 who was placed in four-point-restraints, the Board noted that Employer's witness' testimony was based on "what she thought she saw on the videotape," not first-hand information or observation of the events. Claimant credibly testified that the door to the seclusion room was ajar, the nurses could see and hear everything going on in the room, and they periodically checked on Patient 2 as she believed was required by Employer's policy. Therefore, the Board found that Employer failed to present sufficient evidence of Claimant's alleged willful misconduct with this second disruptive patient. Finally, the Board noted that while Employer alleged that Claimant falsified documents, Employer failed to specify which documents were falsified. The Board found credible Claimant's testimony that she recorded all activity from the night in question as best she could. Given all of the above, the Board found insufficient evidence of willful misconduct and this appeal followed.
The Court's scope of review in this matter is limited to determining whether there was a constitutional violation or error of law, whether any practice or procedure of the Board was not followed, and whether the necessary findings of fact are supported by substantial evidence. Glenn v. Unemployment Compensation Board of Review, 928 A.2d 1169, 1171 n.1 (Pa. Cmwlth. 2007).
The issue on appeal is whether or not Claimant violated Employer's policies in her treatment of Patient 1 and Patient 2. Employer argues that the Board's decision and certain findings of fact regarding this issue are not supported by substantial evidence. In support of this argument, Employer relies heavily upon its version of the facts as advanced by its witnesses, in particular the testimony of Ms. Szilagyi. However, the Board rejected this version of the facts, stating it "resolves the conflicts in testimony in favor of the [C]laimant and finds the testimony of the [C]laimant to be credible." In essence, Employer is asking us to overturn the Board's credibility determination and re-examine the evidence in its favor. The law is clear that the Board is the ultimate fact-finder, empowered to determine the credibility of witnesses and resolve conflicts in evidence. Metropolitan Edison Co. v. Unemployment Compensation Board of Review, 606 A.2d 955, 957 (Pa. Cmwlth. 1992).
Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a finding of fact." Seton Co. v. Unemployment Compensation Board of Review, 663 A.2d 296, 299 n.3 (Pa. Cmwlth. 1995).
Thus, as long as the Board's factual findings are supported by substantial evidence, those findings are conclusive on appeal. That [a witness] may have given a different version of the events, or . . . might view the testimony differently than the Board, is not grounds for reversal if substantial evidence supports the Board's findings.Bruce v. Unemployment Compensation Board of Review, 2 A.3d 667, 672 (Pa. Cmwlth. 2010). (Internal citations omitted). The Board did not find the testimony of Employer's witnesses to be credible, and we will not overturn such credibility determinations on appeal. Employer's reliance upon this testimony is misplaced.
The Board pointed out that Ms. Szilagyi was not present on the psychiatric ward on the night in question and that her testimony and opinions were "based on what was told to her and what she thought she saw on the videotapes." These videotapes have no audio; therefore, Ms. Szilagyi was not able to discern that Patient 1 was yelling, screaming, and disrupting the other patients. In addition, Claimant credibly testified that she and other staff attempted de-escalation procedures such as talking to Patient 1 and giving her medication, but their attempts did not work. Again, because the videotapes do not have audio, Ms. Szilagyi was not able to discern whether proper verbal de-escalation techniques were utilized. Also, the videotapes do not show footage inside Patient 1's bedroom, where Claimant testified that most of the de-escalation attempts occurred. Claimant also credibly testified that Patient 1 was not secluded in the day room as the door was not locked, it was common practice for a psychiatric technician to sit at a table in the doorway during one-on-one monitoring, and Claimant 1 was told she was free to leave when she calmed down and stopped screaming. Finally, Patient 1 was seen by a doctor within one hour of her seclusion and the doctor wrote an order approving her seclusion due to her continued yelling, screaming, and non-redirectable behavior. This amounts to substantial evidence to support the Board's finding that Employer failed to demonstrate willful misconduct with respect to Patient 1.
Employer relies in its brief to this Court on the decision of the Referee; however, it is the decision of the Board which is under review. Employer also points to findings of fact and decisions of the Board in two other cases regarding Mercy employees who were also terminated for their actions on the night in question. However, the Board's decisions in the two related cases are not part of the record and will not be considered in this case.
The treatment of Patient 2, who was placed in four-point-restraints, is slightly more problematic. Employer insists that the Board's findings with respect to the treatment of Patient 2 are not supported by substantial evidence because a patient in restraints must be under one-to-one supervision at all times, meaning face-to-face observation in close proximity to the patient. However, Employer again relies upon the testimony of Ms. Szilagyi and Mr. Lucas, whom the Board did not find credible. Also, Ms. Szilagyi's testimony is based solely upon her review of the videotape, while Claimant's testimony was based upon first-hand observation. The Board found Claimant to be credible and resolved all conflicts in testimony in her favor. Claimant credibly testified that the door to the quiet room was ajar, staff could see and hear everything that occurred in that room from the nurse's station, and a staff member was specifically assigned to Patient 2.
In addition, willful misconduct has been described as a deliberate violation of the employer's rule. In rule violation cases, the burden is on the employer to prove both the existence of the rule and that the employee's violation of that rule was knowing and deliberate; inadvertent or unknowing violations are not willful misconduct. See BK Foods, Inc. v. Unemployment Compensation Board of Review, 547 A.2d 873 (Pa. Cmwlth. 1988); James v. Unemployment Compensation Board of Review, 429 A.2d 782 (Pa. Cmwlth. 1981). There simply is no evidence of a deliberate violation in this case. Claimant testified to the fact, and the Board found credible, that the psychiatric technicians were personally responsible for the one-on-one monitoring of patients in restraints. Pursuant to union contracts, nurses were not responsible for one-on-one monitoring. Claimant testified that a psychiatric technician was assigned to monitor Patient 2 while she was in restraints, that Claimant believed the staff complied with Employer's policy, and that she was not aware until she watched the videotape that at some points this may not have occurred. As Claimant stated on cross-examination, "Unbeknownst to me, because I was still busy with paperwork, I had no idea that some of the time the techs weren't watching, weren't watching that patient." This is understandable given Claimant's testimony that she was personally assigned 9 to 11 patients that night; she was responsible for documentation for all of these patients; they had two new admissions and two disruptive patients that evening; and it was the busiest night she had experienced in her almost 24 years as a nurse. Because Employer failed to prove Claimant deliberately violated the work rule, the Board correctly determined that Employer did not meet its burden of demonstrating willful misconduct with respect to Patient 2.
Accordingly, the decision of the Board affirmed.
/s/_________
DAN PELLEGRINI, JUDGE ORDER
AND NOW, this 14th day of June, 2011, the order of the Unemployment Compensation Board of Review, dated October 12, 2010, is hereby affirmed.
/s/_________
DAN PELLEGRINI, JUDGE