Court of Appeals Division III
State of Washington
Opinion Information Sheet
Docket Number: 17022-5-III
Title of Case: Charlene L. Stevenson
v.
Employment Security Department
File Date: 11/17/98
SOURCE OF APPEAL
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Appeal from Superior Court of Pend Oreille County
Docket No: 96-2-00288-3
Judgment or order under review
Date filed: 10/07/97
Judge signing: Hon. Larry M. Kristianson
JUDGES
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Authored by Kenneth H Kato
Concurring: John A. Schultheis
Frank L. Kurtz
COUNSEL OF RECORD
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Counsel for Appellant(s)
Rebecca M. Coufal
Attorney At Law
2818 N. Ruby
Spokane, WA 99207
Counsel for Respondent(s)
Gwendolyn L. Griffin-Halliday
West 1116 Riverside
Spokane, WA 99208
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CHARLENE L. STEVENSON, )
) No. 17022-5-III
Appellant, )
) Division Three
v. ) Panel Seven
)
EMPLOYMENT SECURITY )
DEPARTMENT OF THE STATE )
OF WASHINGTON, ) UNPUBLISHED OPINION
)
Respondent. ) FILED
KATO, J. Charlene Stevenson appeals the denial of unemployment
benefits. She contends the Employment Security Department's commissioner
erred in concluding she engaged in disqualifying misconduct by restraining
and secluding a nursing home resident. We agree the commissioner's
decision is not supported by substantial evidence and reverse.
Ms. Stevenson, a licensed practical nurse, was the night-shift charge
nurse at Newport Community Hospital's nursing home. During two nights in
August 1996, an elderly female resident got out of control. Ms. Stevenson
responded by placing the woman in a wheelchair, alone in a separate room
near the nurses' station.1 The resident was left in the room for three to
four hours on the first night and for about four hours on the second night.
She suffered bruises from beating her arms against the wheelchair or tray
table.
Ms. Stevenson reported the incidents to the day-shift nurses the next
day and described the incidents on the resident's chart. She testified she
gave the resident food and fluids and took her to the bathroom, but she did
not include these details on the chart.
Ms. Stevenson testified that she did not realize involuntary seclusion
was improper and that it had been done before. She also testified the
resident's care plan authorized restraining the woman in a wheelchair when
she became severely agitated. The nursing home's director of nurses denied
the plan authorized the use of a wheelchair to restrain the resident when
she was severely agitated. A handwritten note on the care plan appears to
read:
Provide {wheelchair with} tray table {as needed.} Give her books etc. for
diversion in {wheelchair.}
The hospital suspended Ms. Stevenson with pay and later terminated her
employment for "abuse toward the client{.}" The Department denied her
unemployment benefits on the ground she was discharged for misconduct. She
appealed, and an administrative law judge conducted a fact-finding hearing.
The findings of the Administrative Law Judge (ALJ) included the following:
6. Claimant was terminated for an incident that occurred in the
evenings of August 3, August 4 and August 5. Claimant's normal shift on
those days was 11:00 p.m. to 7:30 a.m. On each of these nights, claimant
restrained a dementia patient in a wheelchair and placed her in a room by
herself. Claimant did so because the patient was severely agitated and
wandering. When claimant restrained the patient, the patient began to
scream. Claimant was concerned about waking up the other residents and
therefore placed the patient in a room by herself.
7. The room in which claimant placed the patient was the beauty shop.
This beauty shop is right next to the nurses' station with a glass window
facing into the hallway. Claimant left the door slightly ajar so that she
could hear the patient and would check on her regularly.
8. The patient was restrained between 3 and 4 hours on each occasion.
9. On the second evening, prior to beginning her shift, claimant
checked the charting notes to see if any contact had been made with the
patient's doctor addressing how to handle the agitation. There were no
specific notations made other than to discontinue a medication. When
claimant began her shift the second evening, the patient had tried to
wander into the hospital and hit an aide who restrained her from doing so.
At that point, claimant immediately placed the patient into a wheelchair
and restrained her as she had the previous evening.
10. Normal procedure for dealing with patients in such agitation is
to try to divert their attention away from the point that they wish to
wander. Restraining the patient generally results in agitation.
11. Claimant had talked to the charge nurse in the preceding shift on
how to deal with the particular patient, but no advise {sic} was rendered.
Claimant had only two other people working with her during this shift and,
therefore, did not have a lot of resources upon which to rely in the
facilitation of the remaining duties.
12. Claimant charted the isolation and restraint of this patient.
13. Both state and federal regulations require employees to restrain
{sic} from patient abuse. Such abuse includes freedom from "involuntary
seclusion."
Based on these facts, the ALJ concluded:
2. Statutory misconduct cannot be found. Although it is acknowledged
that claimant's actions in restraining and secluding this particular
patient were extreme and technically constituted abuse, it is concluded
that claimant did not intentionally or deliberately violate that abusive
{sic} regulation when she acted as she did in relation to the dementia
patient on August 3, August 4 and August 5, 1996. Claimant felt that what
she was doing was the proper course. This is evidenced by claimant
documenting her actions in the patient's chart. Had claimant been
attempting to deceive or circumvent normal regulations, it would seem
unlikely that claimant would chart her activities for all to see. Maybe
claimant should have contacted others personally in trying to deal with the
situation. However, claimant's failure to do so does not make her actions
intentional or deliberate, merely negligent.
3. This decision does not in any way reflect upon the employer's
decision to terminate claimant. This decision only applies to claimant's
eligibility for unemployment benefits.
The ALJ thus set aside the Department's denial of benefits.
The hospital then petitioned for review with the Department's commissioner,
who affirmed most of the ALJ's factual findings but rejected his ultimate
conclusion. Based on Ms. Stevenson's experience as a licensed practical
nurse, the commissioner rejected her claim that she misread or
misunderstood the rules, holding that she knew or should have known her
conduct was unlawful. The commissioner set aside the ALJ's order and
denied Ms. Stevenson's benefits. The commissioner denied her petition for
reconsideration, and Ms. Stevenson appealed the administrative decision to
the superior court pursuant to RCW 34.05.514. The superior court affirmed
the commissioner's decision, holding it was supported by substantial
evidence and did not misinterpret the law. Ms. Stevenson now appeals the
superior court's decision.
On review of an administrative agency's decision under the
Administrative Procedure Act, we sit in the same position as the superior
court. Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 402, 858 P.2d 494
(1993). Among the reasons for overturning an agency's decision are that
the decision (1) is based on an error of law; (2) is not supported by
substantial evidence; or (3) is arbitrary or capricious. RCW
34.05.570(3)(d)-(e), (i); Tapper, 122 Wn.2d at 402. The decision subject
to review here is that of the Department's commissioner. Id. at 406 n.4;
see RCW 34.05.464(4).
A person is disqualified from receiving unemployment benefits if he or
she was discharged for "misconduct connected with his or her work{.}" RCW
50.20.060. Whether an employee has engaged in misconduct is a mixed
question of law and fact. Tapper, 122 Wn.2d at 402-03. On review, we
first must determine whether there is substantial evidence to support the
agency's factual findings. Id. at 403. Evidence is substantial if it is
enough "to persuade a fair-minded person that the declared premise is
true." Lawter v. Employment Sec. Dep't, 73 Wn. App. 327, 332, 869 P.2d 102
(citing Olmstead v. Department of Health, 61 Wn. App. 888, 893, 812 P.2d
527 (1991)), review denied, 124 Wn.2d 1019 (1994).
Misconduct is "an employee's act or failure to act in willful
disregard of his or her employer's interest where the effect of the
employee's act or failure to act is to harm the employer's business." RCW
50.04.293. The Legislature adopted this definition in 1993, in response to
the Supreme Court's decision in Macey v. Department of Employment Sec., 110
Wn.2d 308, 752 P.2d 372 (1988).2 Galvin v. Employment Sec. Dep't, 87 Wn.
App. 634, 642-43, 942 P.2d 1040 (1997), review denied, 134 Wn.2d 1004
(1998). Based in part on legislative history and in part on the Supreme
Court's subsequent decision in Tapper, Division One of this court has
concluded that the effect of the statutory definition is to "preserve
eligibility for benefits where the employee merely makes an error of
judgment, or is incapable of performing his or her duties: 'That is, the
behavior {constituting misconduct} cannot be characterized as mere
incompetence, inefficiency, erroneous judgment, or ordinary negligence.'"
Galvin, 87 Wn. App. at 643 (quoting Tapper, 122 Wn.2d at 409); see Dermond
v. Employment Sec. Dep't, 89 Wn. App. 128, 133, 947 P.2d 1271 (1997);
Wilson v. Employment Sec. Dep't, 87 Wn. App. 197, 202, 940 P.2d 269 (1997).
The appropriate inquiry is whether the employee's conduct was
"'intentional, grossly negligent, or continue{d} to take place after notice
or warnings.'" Wilson, 87 Wn. App. at 202 (quoting Tapper, 122 Wn.2d at
409).
A nursing home resident has the right to be free of physical restraints
used for the purpose of discipline or convenience and not required to treat
the resident's medical symptoms. RCW 70.129.120; RCW 70.129.010(5); WAC
388-97-075(2)(a); 42 C.F.R. sec. 483.13(a). A resident also has the right
to be free of involuntary seclusion. WAC 388-97-075(7); 42 C.F.R. sec.
483.13(c)(1)(i). A licensed practical nurse is charged with safeguarding
patients from abusive acts. WAC 246-840-700(12).
Ms. Stevenson argues in part that her conduct did not violate these
standards. She relies on WAC 388-97-075(4), which permits the use of
physical restraints in some circumstances if the need is specifically
identified in the resident's care plan. Ms. Stevenson alleged several
times during the administrative proceedings that the resident's care plan
specifically authorized the use of physical restraint. She also alleges on
appeal that handwritten directions on the bottom of the page were deleted
from the copy admitted into evidence during the hearing.3 The commissioner
did not expressly address this allegation. Regardless of its truth, there
is substantial evidence in the record that Ms. Stevenson believed her
actions were lawful and authorized by the care plan.
We agree with Ms. Stevenson's contention that her actions at worst
demonstrated ordinary negligence or erroneous judgment. The record
indicates she was not attempting to deceive her superiors about her
actions, as is demonstrated by her forthright disclosure of the incidents.
Although she was an experienced nurse who should have known the standards
of care for treating nursing home patients, the record clearly indicates
she believed her actions were authorized by the resident's care plan and
that this had been done before. The commissioner's finding that Ms.
Stevenson acted in willful disregard of her employer's interest is not
supported by substantial evidence and must be reversed.
We reverse the superior court's order and the commissioner's decision
denying unemployment benefits.
A majority of the panel has determined this opinion will not be printed in
the
Washington Appellate Reports, but it will be filed for public record
pursuant to RCW 2.06.040.
Kato, J.
WE CONCUR:
Schultheis, C.J.
Kurtz, J.
1The resident was restrained in the wheelchair with a quick-release
seatbelt. The room in which she was placed, the nursing home's beauty
shop, had windows facing the hallway. Ms. Stevenson testified she checked
on the resident frequently and left the door open enough to hear what was
happening inside.
2In Macey, the Supreme Court established a three-part test for determining
whether an employee's action was misconduct: "(1) The rule must be
reasonable under the circumstances of the employment; (2) the conduct of
the employee must be connected with the work . . .; and (3) the conduct of
the employee must in fact violate the rule." Macey, 110 Wn.2d at 319. The
final bill report indicates the Legislature was concerned that this
definition "does not require intent or harm to the employer's business."
E.S.S.B. 5702, 1993 Final Legislative Report, 53rd Wash. State Legislature,
at 288; see Galvin v. Employment Sec. Dep't, 87 Wn. App. 634, 642-43, 942
P.2d 1040 (1997) review denied, 134 Wn.2d 1004 (1998).
3Some of the handwriting at the bottom of the page does appear to be
missing from the copy in the record on appeal.