THE COMMONWEALTH COURT OF PENNSYLVANIA
Pinnacle Health System, :
Petitioner :
:
v. : 18 C.D. 2014
: Submitted: July 3, 2014
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: August 12, 2014
Pinnacle Health System (Employer) petitions for review from an order
of the Unemployment Compensation Board of Review (Board) that granted
Vasthie Dehart’s (Claimant) application for unemployment compensation benefits.
The Board’s order adopted and incorporated a referee’s decision holding Employer
failed to prove it discharged Claimant for willful misconduct under Section 402(e)
of the Unemployment Compensation Law (Law).1 Employer contends the Board
disregarded the weight of the evidence and erred as a matter of law in its
determination that Claimant did not commit willful misconduct. To that end,
Employer asserts Claimant, after being denied a transfer, engaged in unsafe work
practices to such a degree as to manifest culpability and an intentional disregard of
Employer’s interests. Upon review, we affirm.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e). Section 402(e) of the Law states an employee shall be ineligible for compensation for
any week in which his unemployment is due to willful misconduct connected to her work.
I. Background
The referee found the following relevant facts. Claimant worked for
Employer as a medical assistant from August 2011 until her last day of work on
August 2, 2013.
Employer’s HR #5 Policy, “Corrective Action,” provides a list of
performance deficiencies which may result in corrective action, up to and
including termination. See Reproduced Record (R.R.) at 61a-66a. Among many
other items, the list includes “unsafe work practices.” Id. at 66a. Claimant signed
an employee handbook acknowledging she understood Employer’s policies. Id. at
67a.
In May 2013, Claimant transferred from a cardiologist’s office to
Employer’s family practice office. Employer provided Claimant with orientation
on several procedures. In mid-July 2013, Claimant requested a transfer back to her
previous office despite her knowledge that Employer’s policies required her to
work at least six months at the family practice site before she could request a
transfer. Nonetheless, Claimant did not want to continue working in the family
practice office, and she indicated she needed more training. Employer encouraged
Claimant to remain at the family practice site and request additional training.
Employer advised Claimant that she just transferred two months ago and could not
transfer again at that time.
Employer terminated Claimant following four incidents occurring on
or before June 29, 2013. See R.R. at 9a-10a. First, Claimant and a coworker
2
overloaded a urine centrifuge, which caused it to break. Second, Claimant failed to
call a nurse at another facility to inform her of a patient’s test results. The nurse
called back hours later, which resulted in delayed patient care. Third, Claimant
failed to ask a minor child to remove her shoes when taking her height and weight
measurements during a pediatric physical. Fourth, Claimant, distracted by a
coworker, gave a patient an incorrect injection of PPD, which is a test for
tuberculosis. Claimant mistakenly gave the patient five times the correct dosage.
Fortunately, this only resulted in a slight skin reaction and the need for the patient
to return to the office for another test. On August 2, 2013, Employer terminated
Claimant for unsafe work practices and continuous substandard performance. Id.
The referee, however, found that Claimant worked to the best of her
ability, and that Employer fell short of establishing willful misconduct. In addition
to demonstrating a claimant failed to meet expectations, an employer must also
show the claimant failed to work to the best of her ability.
Here, the referee observed, Employer indicated the two incidents
leading to Claimant’s termination involved a broken centrifuge and a patient
receiving an incorrect dosage during an injection. At hearing, when asked by
Employer’s Senior HR Consultant, Allison Beck (HR Consultant) why she
terminated Claimant, Employer’s Regional Office Manager, Christy Laudig
(Office Manager) testified as follows:
EW1: Can you explain your decision to move straight to
termination rather than provide [Claimant] with any
specific written warnings?
3
EW2: Due to the last one which was the unsafe work
habits and the centrifuge but it was mostly the PPD being
applied with the incorrect dosage we felt it would be
proper to move right to termination, since she had been
trained, signed off we were afraid that if it was a different
injection it could cause other results, harmful results to
another patient if it was a different injection and not the
PPD.
Referee’s Hearing, Notes of Testimony2 (N.T.), 10/2/13, at 11; R.R. at 34a.
First, the referee observed, the centrifuge broke by accident.
Employer did not establish Claimant willfully or intentionally broke the centrifuge.
Second, Claimant admitted she gave a patient the incorrect dosage for
a tuberculosis test because she was distracted by a coworker. However, Claimant
immediately brought this incident to Employer’s attention. As such, the referee
attributed Claimant’s actions to carelessness and inattention, not willful or
intentional misconduct. See Referee’s Dec., 10/4/13, at 2-3. Consequently, the
referee determined Employer failed to sustain its burden of showing it discharged
Claimant for actions that constitute willful misconduct.3 Referee’s Dec. at 3.
2
Certified Record at Item No. 8.
3
As a separate issue, the referee found that as a result of knee surgery, Claimant did not
become eligible for benefits under Section 401(d)(1) of the Law, 43 P.S. §801(d)(1)
(qualifications for compensation, ability to work) until the work week ending August 24, 2013.
The date of Claimant’s ability to work is not at issue in this appeal.
4
On appeal, the Board affirmed. In so doing, the Board adopted and
incorporated the referee’s findings and conclusions. Employer petitions for
review.4
II. Discussion
A. Willful Misconduct
Willful misconduct is defined by the courts as: (1) wanton and willful
disregard of an employer’s interests; (2) deliberate violation of rules; (3) disregard
of the standards of behavior which an employer can rightfully expect from an
employee; or, (4) negligence showing an intentional disregard of the employer’s
interests or the employee’s duties and obligations. Grieb v. Unemployment Comp.
Bd. of Review, 827 A.2d 422 (Pa. 2002); Johns v. Unemployment Comp. Bd. of
Review, 87 A.3d 1006 (Pa. Cmwlth. 2014). The employer bears the initial burden
of establishing a claimant engaged in willful misconduct. Id. Whether a
claimant’s actions constitute willful misconduct is a question of law fully
reviewable on appeal. Id.
Further, in Navickas v. Unemployment Compensation Board of
Review, 787 A.2d 284 (Pa. 2001), the Supreme Court explicitly rejected the
position that, in willful misconduct cases, health care providers may hold their
health care employees to a higher standard of behavior than other employees. In
4
Our review is limited to determining whether the necessary findings of fact were
supported by substantial evidence, whether errors of law were committed, or whether
constitutional rights were violated. Doyle v. Unemployment Comp. Bd. of Review, 58 A.3d
1288 (Pa. Cmwlth. 2013). Substantial evidence is evidence which a reasonable mind would
accept as adequate to support a conclusion. Umedman v. Unemployment Comp. Bd. of Review,
52 A.3d 558 (Pa. Cmwlth. 2012).
5
rejecting the argument that inadvertent, careless or negligent mistakes by health
care employees may amount to willful misconduct, the Supreme Court
emphasized, “[m]ere ‘negligence’ does not rise to the level of ‘willful misconduct’
without the additional element of an intentional disregard of the employer’s
interests.” Navickas, 787 A.2d at 290 (citation omitted). In explaining its
decision, the Court observed:
we specifically reject the Commonwealth Court’s
adoption of an ad hoc ‘higher standard of care’ for health
care workers, which apparently would permit any act of
negligence or inadvertence on the part of a health care
worker, standing alone, to be deemed willful misconduct.
In so doing, we do not dispute that the needs of certain
health care employers are such that they might
reasonably deem any act of negligence sufficiently
serious as to warrant termination of employment. Nor do
we doubt there are other occupations of sufficient gravity
that employers might reasonably conclude that even
isolated acts of negligence are sufficiently serious as to
warrant termination. But those are questions of policy
not posed by the [Law] we are called upon to construe.
The [Law] sets forth a single governing standard of
willful misconduct, one that does not draw distinctions
based upon the type or nature of the work involved.
Id. at 290-91 (italics and bolding in original).
B. Board’s Province as Fact-Finder
We also note the Board is the ultimate fact-finder in UC cases and is
empowered to resolve all issues of witness credibility, conflicting evidence and
evidentiary weight. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of
Review, 949 A.2d 338 (Pa. Cmwlth. 2008). Also, it is irrelevant whether the
record includes evidence that would support findings other than those made by the
6
Board; the proper inquiry is whether the evidence supports the findings actually
made. Id. Further, the party prevailing below is entitled to the benefit of all
reasonable inferences drawn from the evidence. Id. With these principles in mind,
we review Employer’s appeal.
C. Argument
Employer contends the Board disregarded the weight of the evidence
and erred in determining Claimant did not commit willful misconduct where she
engaged in unsafe work practices and substandard performance to such a degree as
to manifest culpability, and an intentional disregard of Employer’s interests, as
well as Claimant’s duties to Employer. Claimant’s disregard of Employer’s
treatment and safety protocols is the type of conduct that this Court repeatedly
determined to be willful misconduct. In addition, Employer argues it has a
reasonable policy proscribing unsafe work practices, which Claimant violated.
In support of its position, Employer cites Cullison v. Unemployment
Compensation Board of Review, 444 A.2d 1330 (Pa. Cmwlth. 1982). There, we
recognized that a showing of a claimant’s actual intent to wrong an employer is not
required to establish willful misconduct. Rather, a showing of a conscious
indifference to the employer’s interests or the claimant’s duties will suffice. Id.
In Cullison, we noted, mere incompetence, inexperience or inability of
an employee may justify a discharge, but does not constitute willful misconduct
rendering the employee ineligible for benefits. However, where the record shows
that despite his ability to perform the work, the claimant’s work performance
7
progressively worsened and that he acted carelessly, the claimant’s failure to work
at his proven skill level demonstrated not only an intentional and substantial
disregard of the employer’s interests, but also a disregard of the claimant’s duties
and obligations. Id.
More recently, in Scott v. Unemployment Compensation Board of
Review, 36 A.3d 643 (Pa. Cmwlth. 2012), this Court applied the rationale in
Cullison and similar decisions5 to a case where the claimant’s job duties included
inspecting trays and medical instruments used in a hospital’s surgical procedures to
ensure they were clean prior to sterilization. In Scott, the employer discharged the
claimant for continued poor work performance. The claimant repeatedly processed
unclean trays, which, in some cases, contained materials remaining from previous
surgeries. Clearly, this posed a significant risk for the employer’s surgical patients.
Despite a warning about processing unclean trays, the claimant’s work
performance did not improve. As a result, the employer discharged him for
violating its cleanliness policy.
Ultimately, we affirmed the Board’s denial of benefits in Scott. In so
doing, we reasoned the claimant’s continued poor work performance demonstrated
an intentional disregard of the employer’s interests and the claimant’s duties and
obligations. Id.
5
Employer cites several other cases where this Court affirmed the denial of benefits
under Section 402(e) of the Law (willful misconduct) where the claimant’s poor work
performance fell below his or her previously exhibited proficient work skills. See, e.g., Shearer
v. Unemployment Comp. Bd. of Review, 527 A.2d 615 (Pa. Cmwlth. 1987); Kosmalski v.
Unemployment Comp. Bd. of Review, 397 A.2d 875 (Pa. Cmwlth. 1979).
8
In light of Scott, Cullison, and similar cases, Employer contends the
Board erred in determining Claimant’s substandard performance and unsafe work
practices, as evidenced by the incidents leading to her discharge, did not rise to the
level of willful conduct under Section 402(e) of the Law.
First, Employer asserts, on June 24, 2003, Claimant improperly
loaded multiple urine samples into a centrifuge, which caused the glass to shatter
and the machine to break. Another medical assistant, April Wetzer (MA Wetzer),
testified medical assistants were trained to never put more than one patient’s urine
in the centrifuge at once because the vials are not labeled. N.T. at 17; R.R. at 40a.
Thus, contrary to the Board’s findings, Employer argues the damage to the
centrifuge was not an accident. Rather, Claimant’s conscious indifference to her
training and orientation caused the damage to Employer’s property.
Employer further contends there is no evidence, aside from
Claimant’s testimony, that another employee also loaded the centrifuge. Prior to
the referee’s hearing, Claimant did not inform Employer that a second employee
was involved. Further, Claimant did not identify the other employee. Also, MA
Wetzer testified she witnessed Claimant load the centrifuge and did not see anyone
else there. N.T. at 17; R.R. at 40a. In light of these circumstances, Employer
maintains the record does not contain substantial evidence supporting the Board’s
finding that Claimant and a coworker both loaded the centrifuge, causing it to
break.
9
Moreover, Employer contends the incident in which Claimant injected
a patient with the wrong dosage of PPD, a test for tuberculosis, clearly established
she engaged in unsafe work practices. Employer argues this incident, could, by
itself, support a finding of willful misconduct. Office Manager recalled that
Claimant explained her mistake by stating that she was talking to someone else
while preparing the injection, and the number “five” was mentioned. N.T. at 13;
R.R. at 36a. That is why Claimant drew up 0.5 ml, rather than the normal dose of
0.1 ml. Id.
Employer argues the Board erred in determining this incident merely
constituted carelessness. MA Wetzer testified that when giving an injection,
Employer’s medical assistants are taught to double check five things, including
whether they have the right patient, the right route, the right medicine and the right
dosage. N.T. at 18; R.R. at 41a. Here, Claimant did not perform the double check
as required. Id. Thus, Employer argues Claimant’s conduct constituted negligence
and an abrogation of her duty of care to her patient. Claimant’s actions during this
incident, particularly her failure to comply with the safety check procedure for
injections, constituted a substantial disregard of Employer’s interests and
Claimant’s duties. Scott; Cullison.
With regard to the other two incidents cited as reasons for Claimant’s
discharge, Employer asserts Claimant failed to follow an assignment to notify a
nurse at another facility of a medical test result. Office Manager testified that a
nursing facility called regarding a patient’s test results and that they expected a call
back. See N.T. at 8; R.R. at 31a. Claimant reviewed the note but never returned
10
the call. Id. Hours later, the nurse called back. Id. Nonetheless, Employer
maintains that Claimant’s failure to relay the test results caused a delay in the
patient’s treatment and reflected poorly on Employer.
In addition, Employer contends Claimant’s disregard of her duties
continued when she failed to remove a minor patient’s shoes for a physical
examination while recording the patient’s height. Office Manager testified an
accurate height measurement is an important component of a physical examination.
N.T. at 8; R.R. at 31a.
Summarizing, Employer argues that following the denial of
Claimant’s request for a transfer back to her previous location, Claimant’s work
performance deteriorated to such a degree and with such recurrence as to manifest
culpability and an intentional and substantial disregard of Employer’s interests. As
such, Employer maintains Claimant’s unsafe work practices and continuous
substandard performance, as reflected by the four incidents discussed above, fall
squarely within the four corners of willful conduct. Scott; Cullison.
Therefore, Employer urges, Claimant’s willful misconduct
disqualifies her from receiving benefits under Section 402(e) of the Law.
Accordingly, Employer requests we reverse the Board’s award of benefits.
D. Analysis
Where a claimant’s substandard work performance is the result of her
unwillingness to work to the best of her ability, a disqualification for benefits
11
under Section 402(e) is proper. Geslao v. Unemployment Comp. Bd. of Review,
519 A.2d 1096 (Pa. Cmwlth. 1987). However, where the claimant worked to the
best of her ability and did not fully understand the procedures to be followed in her
job, her mistakes did not rise to the level of willful misconduct. Id. To that end,
“[w]e have held that a finding that a claimant worked to the best of his ability
negates a conclusion of willful misconduct.” Norman Ashton Klinger & Assocs. v.
Unemployment Comp. Bd. of Review, 561 A.2d 841, 843 (Pa. Cmwlth. 1989); see
also Rung v. Unemployment Compensation Board of Review, 689 A.2d 999 (Pa.
Cmwlth. 1987) (a bank teller’s errors, which resulted in repeated shortages in her
till, although unequivocally careless, did not constitute an intentional disregard of
her employer’s interests justifying a denial of benefits under Section 402(e));
Norman Ashton (a beginning attorney’s unsatisfactory performance did not
constitute willful misconduct so as to preclude his receipt of UC benefits where he
worked to the best of his ability); Younes v. Unemployment Comp. Bd. of Review,
467 A.2d 1227 (Pa. Cmwlth. 1983) (a claimant’s inability to complete her work
assignments, although a result of poor work habits, did not constitute a conscious
disregard of her employer’s interests).
Here, the Board found Claimant worked to the best of her ability. F.F.
No. 15. Before the referee, Claimant testified as follows (with emphasis added):
R: Okay and there was testimony that your work at the
beginning following the training was apparently
satisfactory but later on your work had gone downhill
that you were not completing tasks. You were only
doing partial tasks. Do you agree with that that you –
because you were unhappy that you were not doing your
best?
C: No ma’am.
12
R: No?
C: No, I don’t agree with that.
R: Were you working to the best of your ability?
C: Yes.
R: Did you knowingly or intentionally violate any of the
policies?
C: No, not intentionally.
N.T. at 26; R.R. at 49a.
In reviewing the first of the two major incidents reviewed by
Employer, the referee credited Claimant’s testimony that on July 24, 2013, she and
another coworker loaded vials of urine into the centrifuge at the same time, which
caused it to break. F.F. No. 10; N.T. at 22-23; R.R. at 45a-46a. Despite
Employer’s repeated assertions to the contrary, Claimant specifically testified
another employee put in a container of urine. N.T. at 23; R.R. at 46a.
In addition, although Claimant received some training on the
centrifuge, she testified she “was not used to … using a centrifuge[.]” N.T. at 14;
R.R. at 37a. Given these circumstances, we find Employer failed to establish that
Claimant intentionally violated its rules or policies regarding use of the centrifuge.
At most, Claimant’s actions constituted a careless mistake shared with a coworker.
In addition, we reject Employer’s contention that Claimant’s
testimony, by itself, does not provide substantial evidence for the Board’s finding
that a coworker also loaded the centrifuge. Even assuming Claimant did not
mention a coworker prior to the referee’s hearing, this would go to the issue of
Claimant’s credibility or the weight assigned her testimony. Both such matters fall
within the province of the Board. Ductmate Indus.
13
Further, although MA Wetzer did not see anyone else load the
centrifuge, she nonetheless testified: “I do not know if anyone else put anything in
the machine.” N.T. at 17; R.R. at 40a (emphasis added). It is also within the
province of the Board to resolve any conflicts in the evidence. Ductmate Indus.
Finally, it is irrelevant whether the record includes evidence that
would support findings other than those made by the Board; the proper inquiry is
whether the evidence supports the findings actually made. Id.
Here, the referee and the Board found Claimant credible and resolved
the conflicts in the evidence in her favor. Therefore, viewing the record in a light
most favorable to Claimant as the prevailing party, we hold Employer failed to
establish that Claimant’s use or misuse of the centrifuge constituted an intentional
or substantial disregard of Employer’s interests as to amount to willful misconduct
under Section 402(e) of the Law. Rung; Norman Ashton.
Similarly, our review of the July 29, 2013 incident involving the
injection overdose does not, by itself, establish an intentional disregard of
Employer’s interests or Claimant’s duties justifying a disqualification for benefits.
Navickas (errors in patient care constituting mere negligence do not rise to the
level of willful misconduct without the additional element of an intentional
disregard of the employer’s interests). Although Claimant admitted receiving
training on the giving of injections, her drawing the incorrect dosage under
circumstances where she was distracted by a coworker does not compel the
conclusion Employer seeks.
14
We recognize Claimant’s administration of the wrong dosage to one
of her patients could be considered unequivocally careless. However, absent
credible evidence establishing an intentional disregard of the employer’s interests
or the claimant’s duties and obligations, a health care worker’s medication error
does not necessarily rise to the level of willful misconduct. Id.
Here, Claimant testified a coworker distracted her while she drew the
dosage. F.F. Nos. 11; N.T. at 13-14, 24; R.R. at 36a-37a, 47a. As a result of the
distraction, Claimant gave the patient five times the correct dose. Id. However,
when charting the injection immediately after giving it, Claimant realized her
mistake and contacted Office Manager. F.F. No. 12; N.T. at 24-25; R.R. at 47a-
48a. As a result of Claimant’s mistake, the patient had a slight skin reaction. F.F.
No. 13; N.T. at 25; R.R. at 48a. Regardless, Claimant’s inadvertent, unintentional
mistake does not establish willful misconduct. Navickas.
For the same reason, even assuming Claimant’s one-time
unintentional failure to follow Employer’s self-check procedure while giving an
injection constituted an unsafe work practice for purposes of Employer’s own
policies, it does not rise to the level of disqualifying willful misconduct as a matter
of law. Navickas.
With respect to the two other incidents, an employer must establish
that the act in question constituted the actual reason for the claimant’s discharge.
Saleem v. Unemployment Comp. Bd. of Review, 35 A.3d 1283 (Pa. Cmwlth.
2012) (citing Panaro v. Unemployment Comp. Bd. of Review, 413 A.2d 772 (Pa.
15
Cmwlth. 1980)). “Mere dissatisfaction with an employee’s performance will not
disqualify the employee from receiving benefits upon his discharge; the employer
must shoulder his burden of proof by demonstrating that a specific transgression or
amalgam of transgressions amounting to willful misconduct precipitated the
employee’s dismissal.” Tundel v. Unemployment Comp. Bd. of Review, 404 A.2d
434, 435 (Pa. Cmwlth. 1979).
Employer argues the two other incidents, where Claimant failed to
inform another facility of a patient’s tests results as requested, and where Claimant
did not remove a pediatric patient’s shoes prior to measuring her height, were not
trivial. Employer further contends these two incidents reflect Claimant’s
substandard performance following the denial of her transfer request. However,
Employer failed to establish it discharged Claimant based on these incidents. As
discussed above, Office Manager testified Employer terminated Claimant’s
employment based on the centrifuge and injection overdose incidents. See N.T. at
11; R.R. at 34a. Consequently, the Board did not err in failing to find that either of
these incidents constituted willful misconduct justifying the denial of benefits
under Section 402(e) of the Law. Saleem; Tundel.
Nevertheless, we discern no error or abuse of discretion in the Board’s
reasoning that Claimant’s failure to remove a patient’s shoes before taking her
height does not rise to the level of willful misconduct. See Referee’s Dec. at 3.
Claimant explained that when she worked at the cardiology office, the patient
decided whether or not to take off his or her shoes. N.T. at 21; R.R. at 44a.
16
Following this one incident, Claimant always requested that a patient remove his or
her shoes. Id.
Finally, although the Board did not address the incident where
Claimant failed to notify another facility of a patient’s test results, Employer failed
to establish this incident resulted from anything more than mere carelessness.
Office Manager testified only that Claimant offered no explanation as to why she
failed to contact the other office regarding the patient’s test results. As such,
Claimant’s conduct, although careless, does not rise to the level of willful
misconduct. Navickas; Rung; Norman Ashton.
III. Conclusion
For the above reasons, we discern no error in the Board’s
determination that Employer failed to sustain its burden of proving that it
discharged Claimant as a result of actions that constitute willful misconduct.
Accordingly, we affirm the Board’s order ruling Claimant not ineligible for
benefits under Section 402(e) of the Law.
ROBERT SIMPSON, Judge
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pinnacle Health System, :
Petitioner :
:
v. : 18 C.D. 2014
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 12th day of August, 2014, for the reasons stated in
the foregoing Opinion, the order of the Unemployment Compensation Board of
Review is AFFIRMED.
ROBERT SIMPSON, Judge