### FILED SEPTEMBER4, 2014 In the Office ofthe Clerk ofCourt W A State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE DIANA S. SHELBY, ) ) No. 31494-4-111 Appellant, ) ) v. ) ) WASHINGTON STATE ) UNPUBLISHED OPINION DEPARTMENT OF HEALTH, ) ) Respondent. ) SIDDOWAY, C.J.

- Diana Shelby, a licensed denturist, appeals the outcome ofan administrative proceeding against her bythe Washington State Department ofHealth, which was affIrmed by the Benton County Superior Court. She assigns error to 16 fIndings offact and 4 conclusions oflaw, and contends thatthe evidence was insuffIcientto supportthe tier ofsanctions imposed bythe health lawjudge. We fInd no

error and affIrm. FACTS ANDPROCEDlmAL BACKGROUND Diana Shelbybecame a licensed denturist under chapter 18.30 RCW in 1999. InFebruary 2008, one ofMs. Shelby's former patients fIled the following complaintwith the Washington State Department ofHealth: Duringthe 6 to 7 months that I hadMs. Shelby's ''temporary'' denture I had fIrst 1tooth come out after 

### 3Yz months ofwear. After about aNo. 31494-4-III Shelby v. Wash. StateDep 't of Health

week after the 1st tooth came out a 2ndtooth came out. Ms. Shelby fixed both times. Becausethe 2 teeth came out so easily I went to another denturist. While at First Choice Dentures a crack in the denture was discovered. I then took the denture backto Ms. Shelby & she fixed it. While I was waiting until the first oftheyear so myDadwouldhave enough money to get mypermanent denture[,] I had 3 more teeth come out ofthe denture & a large crack appeared. So I decided to get my new denture from 

### 1st Choice Denture & I asked for my money back from Ms. Shelby. She refused. I am sending you pictures ofthe infearior [sic] material & orjob that she did. I'm also sending you the letter that she wrote me in return, instead ofsending me a refund. She basicly [sic] accused me ofbeing stupid & [Joseph] Vize ofstealing clients. For most ofthe time that I had Ms. Shelby'S denture I was unable to use it due to teeth coming out & or cracks recurring while eating. Clerk's Papers (CP) at 174-75. Following an investigation, the department filed a statement ofcharges of unprofessional conduct against Ms. Shelby, alleging that teeth had notbeen adequately bound to thepatient's denture base, causing them to break offrepeatedly, andthatthe porous nature ofthe denture's acrylic caused multiple fractures during the treatment period. Ms. Shelby requested a hearing to contestthe charges. Beforethe hearing, the department amended its statement ofcharges to identify the following five respects in which it alleged thatMs. Shelby'S treatment ofthe patient fell belowthe standard ofcare ofa Washington denturist: [1] Respondent did not adequately bindthe denture's teeth to the denture base, causingthemto repeatedly break off; [2] Respondent poorly constructed the denture, causing malocclusion;

2No. 31494-4-111 

### Shelby v. 

### Wash. State Dep'to/Health [3] Respondent did not adequately address the porous nature of the denture acrylic which: [c]aused multiple fractures during the treatmentperiod [and] [m]ade the denture susceptible to bacteria, subjectingthe patientto therisk ofillness; [4] Respondent left soft temporary liners in the patient's mouth for too long, which made them susceptible to bacteria, subjecting the patientto the risk ofillness; [and] 

### [5] Respondent failed to offer and/orprovide services ofa nature or in a manner thatresolved the above problems ormetthe standard ofcare. CP at 372. A hearing was held overthree days, at which the department called four witnesses: Ms. Shelby; the patient; Val Cherron, a denturist retained by the department as an expert; and Joseph Vize, the patient's treating denturist following hertreatment by Ms. Shelby. Ms. Shelby testified on her own behalf, questioned the patient further, and called as her

own expert witness, Dr. Michael Shannon, a dentist with training in denture construction. Having heard the evidence and argument, the health lawjudge concluded that the department hadproved that Ms. Shelby committed unprofessional conductbased on findings (among others) that the cause ofteeth falling out ofthe denture was its improper construction due to an improperbond between the denture acrylic and the denture teeth; that the cause offractures in the denture was also its improper construction, due tothe porous nature ofthe denture acrylic; that "[i]twas a violation ofthe denturist standard of

care to instruct [the patient] to continue to use a temporary denture when the denture was

a poor fit, it fractured and lost teeth, and the pain and discomfort associated with the

3

### No. 3 I494-4-III Shelby v. 

### Wash. State Dep'tof Health

denture could not be alleviated by the denturist or by the [patient] using over-the-counter products"; and that [t]he problems with the denture as constructed could not be remedied by repairing the denture. [Ms. Shelby] should not have offered to reline the denture since the reline would not have corrected the problems with improper construction. Underthe denturist standard ofcare, [Ms. Shelby] should have constructed a new denture for [thepatient] at no cost to the patient. This should have occurred without regard to the life ofthe original temporary denture. CP at 395. The health lawjudge imposed a two-year suspension ofMs. Shelby's denturist license, a $5,000 fine, and required Ms. Shelby to refund all fees she had charged the patient for treatment. Ms. Shelby's motion for reconsideration was denied, after which she petitioned for judicial review. After the Benton County Superior Court upheld the department's final order, Ms. Shelby filed this appeal. ANALYSIS 

### 1. Standardof Review Well settled law governs our review ofthe decision ofan administrative agency. We review the decision from the same standpoint as the trial court, and apply the exclusive bases for relieffrom agency orders in adjudicative proceedings set forth in the Administrative Procedure Act (APA), chapter 34.05 RCW, directly to the record before the agency. Lewis County v. W Wash. Growth Mgmt. Hearings Bd., 157 Wn.2d 488, 497, 139 P.3d 1096 (2006). We will grant relieffrom the health lawjudge's order only if 4

### No. 31494-4-III Shelby v. Wash. State Dep 't of Health



### we find one ofthe defects identified in RCW 34.05.570(3) as warranting relief. Lewis County, 

### 157 Wn.2d at 498. The party asserting the invalidity ofagency action has the burden ofdemonstrating error. RCW 34.05.570(1)(a). Ms. Shelby challenges the health lawjudge's order as unsupported by substantial evidence as required by RCW 34.05.570(3)(e), which provides for reliefwhere "[t]he order is not supported by evidence that is substantial when viewed in light ofthe whole record before the court." Where an agency decision is challenged onthat basis, we must determine "whetherthere is 'a sufficient quantity ofevidence to persuade a fair-minded person ofthe truth or correctness ofthe order.'" Kittitas County 

### v. E. Wash. Growth Mgmt. Hearings Bd., 

### 172 Wn.2d 144, 155,256P.3d 1193 (2011) (internal quotation marks omitted) (quoting Thurston County 

### v. W Wash. Growth Mgmt. Hearings Bd., 164 

### Wn.2d 329,341, 190 P.3d 38 (2008». The substantial evidence standard is highly deferential to the agency fact finder, and requires us to view the evidence in the light most favorable to the prevailingparty in the highest administrative fact finding forum below. Arco Prods. Co. 

### v. Utils. & Transp. Comm 'n, 

### 125 Wn.2d 805,812,888 P.2d 728 (1995). Deference is given to the trier of fact regarding witness credibility or conflictingtestimony and we do not weigh the evidence or substitute ourjudgment. Phoenix Dev., Inc. 

### v. City ofWoodinville, 

### 171 Wn.2d 820, 831-32, 256 P.2d 1150 (2011). We need not be persuaded ofthe truth or correctness ofan agency's findings, only that any fair-minded person could have ruled as 5No. 3 I494-4-II1 Shelby v. Wash. State Dep't of Health

the agency did in light ofthe evidence. Callecodv. Wash. State Patrol, 84 Wn. App. 663,676 n.9, 929 P.2d 510 (1997). The health lawjudgetreatedthe department's proceeding as implicating a significantproperty interest on Ms. Shelby's part in her denturist license, and for that

reason held the departmentto a burden ofproving its charges by clear, cogent, and convincing evidence. BangD. Nguyen v. Dep'tof Health, Med. QualityAssurance Comm 'n, 144 Wn.2d 516, 29 P.3d 689 (2001). The department did not object to the heightened standard. I When finding unprofessional conduct, an administrative agency may use its experience and specialized knowledge to evaluate and draw inferences from the evidence. RCW 34.05.452(5); In re DisciplinaryProceedingAgainstBrown, 94 Wn. App. 7,13-14,972 P.2d 101 (1998). Ms. Shelby argues that the clear and convincing standard applied by the health law judge implicates a corresponding duty on our part to make an "independentdetermination

I For the first time on appeal, the department argues thatHardee v. Department of Social & Health Services, 172 Wn.2d 1,9,256 P.3d 339 (2011) has since made clearthat the clear and convincing standard applies to only those license revocation proceedings in whichthe value ofthe property interest at stake requires a heightened standard ofproof as a matter ofdue process, that not all occupations require an identical personal investment, and thatnot all state-granted credentials constitute a professional license. The department now submits that Ms. Shelby's investment of"'time, expense, and education'" in her denturist license is insufficient to require the heightened burden of proofand that we may apply a preponderance ofevidence standard in reviewingthe record. Br. ofResp't at 8 (quoting Hardee, 172 Wn.2d at 16). We will not entertain a challenge for the first time on appeal to an assertedly too-high burden ofproofapplied without objection below. RAP 2.5(a). 6No. 3 I494-4-II1 Shelby v. Wash. State Dep'tof Health

ofwhetherthe trialjudge was correct in determining that the evidence was sufficientto be clear and convincing," relying onIn re Estate of Reilly, 78 Wn.2d 623, 479 P.2d 1 (1970), a case involving a will contest. Br. ofAppellant at 29. Washington courts have declined to accept the invitation to "fashion a new and higher standard ofreview for appeals in medical disciplinaryproceedings." Ancier

### v. Dep 't of Health, Med. Quality Assurance Comm 'n, 140 Wn. App. 564, 572-73 n.12, 166 P.3d 829 (2007). The standard ofappellate review has been established by the legislature. "Appellate courts do not reweigh the evidence but are limitedto assessing whether that evidence was adequate to satisfY the applicable burden ofproofbelow"-inthis case, clear and convincing evidence. Id. Ms. Shelby assigns error to a number offindings offact and conclusions oflaw, and contends thatthe evidence was insufficient to support the tier ofsanctions imposed by the health lawjudge. We first address her challenges to specific findings and conclusions and then tumto her challenge to the sanctions. II. ChallengedFindings and Conclusions The health lawjudge organized his findings offact into sections; Ms. Shelby assigns errorto findings included in his introduction, in the "denturist standard ofcare" section, and in the section addressing Ms. Shelby'streatment ofthe complainingpatient. We address the challenged findings by section.

7No. 3 1 494-4-III 

### Shelby v. Wash. State Dep 't of Health

A. Introductory Finding Finding 1.2. Ms. Shelby assigns errorto the statement in finding 1.2 that "[t]he Respondent's treatment ofPatient A did not meet the denturist standard ofcare." CP at 391. This overarching finding in the introduction is supported by the health lawjudge's

more specific findings as to the relevant standard ofcare and as to Ms. Shelby's acts and omissions. The specific findings were addressed in the next several sections ofthe health lawjudge's findings, which we examine below. 

### B. "DenturistStandardof Care"Findings To determine whether Ms. Shelby's treatment complied with the standard ofcare ofa denturist treating patients in Washington, the health lawjudge first had to determine the applicable standard ofcare, which he did in his findings 1.5 through 1.13. 

### Findings 1.5, 1.6, 

### and 1.13. In challenging findings 1.5, 1.6, and 1.13, Ms. Shelby argues that iftaken literally, each is "an insignificant general statement." Br. of Appellant at 38-40. They can be taken literally. None ofthese findings purports to address whether Ms. Shelby 

### metthe standard ofcare. Ms. Shelby does not argue that findings 1.5, 1.6, or 1.13 incorrectly state the standard ofcare ofa Washington denturist. 

### Finding 1.11. Ms. Shelby challenges finding 1.11's statementthat 

### "[0]ffering a patient the option ofrelining a problem temporary denture into a permanent denture when the problems associated with the denture cannot be remedied[ ] does not meetthe

8No. 3 I494-4-III 

### Shelby v. 

### Wash. State Dep't of Health

denturist standard ofcare." CP at 392. She argues that "[n]o experttestified thatthis violatedthe standard ofcare." Br. ofAppellant at 39. Ms. Shelby is mistaken; the testimony oftwo experts supportedthis important finding. Mr. Cherron testified: Q. And in November, did she give the patienttwo options? A. Again, gave hertwo options. To eitherreline this denture or make a new one. Q. Okay. Andthat wouldbethe hardreline? A. The laboratory-formed hardreline that would nothave the ability to have bacteria sneak underneath the two materials. Q. Or a new denture? A. Or a new denture. Q. Okay. Do you believe that both options would be appropriate in this case? A. No. Q. And why is that? A. A reline ofthis denture would not correct the problems that it has at this point. A reline would not appropriately bind the teeth to the new denture base. A reline only replaces the tissue side ofthe material or where the temporary material hadbeen placed. Itdoes nothave anything-a reline does not have anything to do with where the teeth are formed, the acrylic itself. Thatprocedure is called a rebase. Q. Would often a reline at thatpoint be in violation ofthe standard of care? A. I believe it falls below the standard ofcare. Q. And what wasthe appropriate option at that point? A. To only make a new denture. CP at 683-84. 

### Mr. Vize testified: 

### Q. I believe you testified that the reline ofthis denture in December would have been unthinkable?9

### No. 31494-4-111 Shelby v. Wash. State Dep't of Health



### A. I'm shocked that that was even offered to the patient given the severe problems with this denture. The fact that she would-I mean, you know, even ifshe was doing it for free, it wouldn't solve the problem. But the fact that she's willing to take another two hundred and fifty dollars from this patient, it wouldn't have solved any problem. Again, it's like 1said, the analogy that 1used about putting tires on a car going to ajunkyard. 1 

### mean, why bother. 1 

### mean it's unusable. A reline, it would make it fit better, but that's not going to solve the bite problem. It's not going to solve the appearance issues. It's not going to solve the occlusion issues. It's not going to solve the porosity issues. It's not going to solve the teeth popping out. So, 1 

### mean, 1 

### don't know what good that really would have done her. I'mreally surprised that that was even suggested. CP at 753. The testimony ofthe two experts is substantial evidence supporting finding 1.11. C. Findings Specific To "PatientA JJ Findings 

### 1.15 and 

### 1.16. The disciplinary proceeding was based on Ms. Shelby's treatment ofthe single complaining patient, referred to in the findings and conclusions as "PatientA." Ms. Shelby challenges the statement in finding 1.15 that "[a]fterPatient A's swelling subsided, Patient A continued to suffer pain and discomfort." CP at 394. 

### She challenges the statement in finding 1.16 

### that "[t]he pain and discomfort associated with the misalignment made it difficult to wear the denture for short periods oftime, and made it difficult to eat." Id. 

### She argues that the patient "hadno pain and discomfort after the initial swelling had subsided, until after the temporary denture wore out in November, 2007" and "there is no evidence that after the initial normal period ofadjustment, Patient A had any difficulty wearing the denture for short periods oftime or [that the denture] 10No. 31494-4-II1 

### Shelby v. Wash. State Dep't of Health

made it difficult to eat, until after the denture had worn out approximately on October 30, 2007." Br. ofAppellant at 40-41. Two witnesses testified to the patient'spain and discomfort: the patientherself, and Mr. Vize, based on statements the patient made to him. Mr. Vize's testimony about the patient's statements during treatment was admissible. The rules ofevidence serve as guidelines in administrative hearings but the APA gives presiding officers latitude to admit evidence not admissible underthose rules if, in thejudgment ofthe presiding officer "itis the kind ofevidence on which reasonably prudent persons are accustomed to rely in the conduct oftheir affairs."2 Eventhe evidence rules recognize statements that

are made for the purpose ofmedical diagnosis ortreatment as an exception to the hearsay rule. ER 803(a)(4). Mr. Vize testified: A. She was having difficulties with a denture that hadbeen made by anotherpractitioner and she was unable to use it and she was seeking relief. 2RCW 34.05.452 provides, in relevantpart: (1) Evidence, including hearsay evidence, is admissible ifinthejudgment ofthe presiding officerit is the kind ofevidence on which reasonably prudent persons are accustomed to rely in the conduct oftheir affairs. The presiding officer shall exclude evidence that is excludable on constitutional or statutory grounds or on the basis ofevidentiary privilege recognized in the courts ofthis state. The presiding officer may exclude evidence that is irrelevant, immaterial, orunduly repetitious. (2) Ifnotinconsistentwith subsection (1) ofthis section, the presiding officer shall refer to the Washington Rules ofEvidence as guidelines for evidentiary rulings. 11

### No. 31494-4-111 Shelby v. 

### Wash. State Dep'tof Health Q. 

### And what were her complaints made to you? A. The general essence ofit was-is that she had a denture that was unusable and she was unable to function with it. And you could refer back, or ifyou'd prefer that 1do, backto this letter inthe notes. Shejustbasically stated thatthe denture was unusable, was the essence ofit. Q. 

### And do you recall what made it unusable for her? A. As far as what the patient stated or what

... Q. 

### Yes. A. The patient stated that she was having problems with poor fit, repeated breakage. She statedthat she found it very difficult to eat and function withthe appliance. She said speaking was very difficult relating to the poor fit. And far and by large, shejust didn't wear it. CP at 

### 733-34 (alteration in original). The patienttestified: And-but 1 

### still continuedto have problems with fit and the-the soreness in my mouth. And 1

### kept having sore spots and she would go in and try to fix the denture. And at first 1

### used like Poligrip and stufflike that, and then eventually she told me that to get some ofthat Denturite, and put on-onthe denture to help cushion and help the fit. And 1 

### did that, and she also, the first time before she-I did it, she putthe Denturite in the denture at first. And after maybe about two, three months that we've been continually having problems with the fit ofthe denture. And withthe rubbing on my gums and-and stuff. CP at 601. Elsewhere, she testified: Q. 

### Okay. Duringthis-duringthis time that you had the denture for approximately 12 months, how did it affect your ability to-toeat food? A. Very poorly. 1was unable to eat solid foods. 1was-hadto eat very soft foods and when 1could have my denture in, and there was a lot oftimes that 1couldn't even have my dentures in my mouth. Q. 

### And why was that? 12No. 

### 3 I494-4-II1 Shelby 

### v. Wash. State Dep'tof Health

A. Because ofit hurting. Q. SO would you take it out at night or during the day? A. I took it out at night, yes. Q. Would you have it out during the day? A. Pardon? Q. Would you have it out during the day? A. Sometimes. Q. Okay. And whatkind of -describe any feelings you have whiletrying to chew food. A. Pardon? Q. Describe what it was like to chew food. A. Difficult. Very difficult. They wouldhurt or they would move. Ortheyjust-Just didn't workQ. Okay. 

### A. -properly. Q. Did it alteryour diet? A. Yes. Q. Andwhatkind ofdiet did you have [to] go on? A. Well, I-likeI said, I was eating soft foods, I couldn't eat meat ofany kind. I'd evenhave trouble eating hamburger. Q. Okay. A. And I was basically eating oatmeal and scrambled eggs and things like that that you didn't have to chew. CP at 607-09. Ms. Shelby focuses onthe patient's statements madetoher during the course of treatment, which the health lawjudge found were inconsistent, withthepatient telling Ms. Shelby at times that she was satisfied with hertreatment. See finding 1.26. Nonetheless, the testimony ofother competent witnesses supports the health lawjudge's finding that the patient sufferedpain and discomfort even afterthe initial swellinghad subsided, making it difficult for herto wearthe denture and difficult to eat.

13No. 31494-4-111 

### Shelby 

### v. Wash. State Dep'to/Health

Ms. Shelby also challenges the statement in finding 1.16 

### that "[t]he denture, as constructed, did notproperly align with Patient A's teeth." CP at 394. 

### She concedes that 

### Mr. Vize testified thatthe denture, as constructed, did not comply with the standard of care, but she discounts his testimony as "invalid." Br. ofAppellant at 40. This is evidently because 

### Mr. Vize did not review her testimony or Ms. Shelby's treatment records but relied instead on what the patient told him about her care. While Mr. Vize

was certainly subject to cross-examination, the fact that he relied upon whatthe patient told him does not make his testimony invalid. She also argues that 

### Mr. Vize's opinion alone could not meetthe clear and convincing standard because "[a]n expert with superior education and training (Dr. Shannon), as well as two other denturists (Cherron and Shelby), contradicted this finding offact." 

### Id. at 41. It was for the health lawjudgeto determine whose testimony was credible and persuasive, and he had no obligation to consider how many witnesses held a



## . . . gIven OpInIOn. Mr. Vize testified that malocclusion was presentwhen he saw the patient and would have been present from the time the denture was installed. He testified that while the degree ofmalocclusion was "notthe worst that I've seen by any means," he "would term 

### it severe." CP at 736. 

### In later summarizing respects in which he believed the denture fell below the standard ofcare, he included his opinions that "the occlusion is incorrect" and "[t]hebite relationship is incorrect." CP at 748. 

### Substantial evidence 14No. 31494-4-III 

### Shelby v. Wash. State Dep'tof Health supports the finding that the denture as constructed did notproperly align with the patient'steeth. Finding 1.17. Ms. Shelby challenges the finding that "[t]he over-the-counter products did not alleviate the pain and discomfort associated with the improperly constructed denture." CP at 394. Ms. Shelby argues that the evidence showed thatthe patient did not follow Ms. Shelby's instruction to use Denturite. Itwas Ms. Shelby'sposition that the patient did not follow her instructions about using Denturite, butthe patient nevertestified to that effect; the patienttestified "I did everything that she would tell me to do," and elsewhere, "[E]ventually she told me that to get some ofthat Denturite, andput on-on the denture to help cushion and help the fit. And I did that." CP at 601. Regardless ofwhetherthe patient followed Ms. Shelby's directions ornot, the evidence established that the patient's use ofover-the-counter products did not alleviate herpain and discomfort, as demonstrated in addressing findings 1.15 and 1.16, above. And while not directly related to this finding orMs. Shelby's challenge to it, both Mr. Cherron and Mr. Vize criticized Ms. Shelby's recommendation that the patient use Denturite after Ms. Shelby installed a Lynalliner on the denture, because ofthe risk ofbacterial accumulation and infection. 

### See CP at 671-72, 821. Substantial evidence supports the finding.

15

### No. 31494-4-111 Shelby 

### v. Wash. State Dep 't of Health Finding 1.lB. Ms. Shelby challenges the finding that "[t]he cause oftheteeth falling outwasthe improper construction ofthe denture from the outset due to an improperbond between the denture acrylic andthe denture teeth." CP at 

### 394. Mr. Cherrontestified that "[i]t's uncommon for teeth topop out when they're manufactured properly" and, when asked about whetherthe patient's teeth were manufactured properly, testifiedthat it was "verypredictable" that the three teeth that the patient was required to have repaired would pop offthe denture base. CP at 676-77. Explaining tothe health lawjudgewhile handling one ofthe teeth, he testified that "[t]his tooth has not beenprepared to thepoint where itwas going to properly bind" and pointed out a couple ofproblems with its preparation. CP at 677. Later, hetestified: I've delivered ten thousand dentures in my overten years ofexperience. I've delivered fifteen hundred to two thousand immediate denturesjust like this. Ofall those cases, 1could quote you two orthree that the teeth pop out. And it's a mistake I've made. And when thathappens, I remake the denture or at a minimum I replace all ofthepinkpartwith a product called a rebase. Andwhatthat does is it stabilizes the whole denture base. Refit it to thepatient's mouth, so it doesn'thave discomfort or rocking and it reinserts the teeth into the denture base, sothey don'tpop out any longer. CP at 706. When Mr. Vize was asked his opinion why the patient's teeth werepopping out, he testified: A. There canbe a variety ofcauses. Technically speaking, the most common cause ofan acrylic tooth popping out-I wantto make clearthe designation-these are acrylic teeth in this denture. Acrylic teeth shouldbevery, very solidly bondedtothe denture base. The 16

### No. 3 I494-4-III Shelbyv. Wash. State Dep 't of Health



### teeth are made ofa material calledpolymethylmethacrylate, PMMA, for short. Thepink denture base is made from a material called PMMA, polymethylmethacrylate. A molymer (phonetic) is used. It's a solvent. And what happens when a denture is processed is the solvent, the molymer, chemically bonds the tooth to the base. An analogy would be pipe dope on a PCVpipe. And when a practitioner processes a denture, the most common cause-to answer your question, the most common cause ofthe tooth popping out is the separator film. It's not cleaned offofthe underneath side ofthe tooth by scrubbing it. That can happen. An oversight can happen. There are other things that are clearly present with the denture. The other most common cause is improper curing ofthe denture, trying to cure the denture too fast. Q. 

### Andwhat do you mean by curing? A. Dentures-whenthe denture base material, the pink stuffthat you see on the denture, when I refer to it as the base, that's what I'm referring to, the pink stuff, that has to go through a process ofcuring. Most commonly a hot-water bath. Andthe most common procedure is to cure it at a lower temperature of 163 degrees for nine hours and boiling for the last thirty minutes. So, a total ofnine and a half hours. Butwhen you cure a denture too quickly, ifyou're in a rush, sometimes it's dropped directly into boiling water and it flash cures the material, which leads to apoorbond between the tooth and the base. And porosity in the denture base itself, which this also displays. CP at 740-41. He testified that the denture manufactured for the patientby Ms. Shelby

was "notthe worst that I've seen, but I would say it's significantly porous," later testifying that "[a] porours denture base like this shouldn't be allowed to leave the office" and that it "[a]bsolutely" could be a cause ofteeth popping out. CP at 743. Finding 1.20. 

### Ms. Shelby challenges the finding that "[t]he denture was fractured due to the porous nature ofthe denture acrylic. This was caused by improper construction ofthe denture from the outset." CP at 395. She argues only that "[t]he 17

### No. 3 1 494-4·III Shelby v. Wash. State Dep'tof Health



### reasons why this finding offact is erroneous were discussed previously in this brief." Br. ofAppellant at 42. A word search reveals that Finding 1.20 is not discussed elsewhere in the brief. We will not consider assignments oferror that are unsupported by legal argument and relevant authority. RAP 1O.3(a)(6); Howell 

### v. Spokane & InlandEmpire BloodBank, 

### 117 Wn.2d 619,624,818 P.2d 1056 (1991). We also note, however, that Mr. Vize testified that the denture was "significantlyporous" and that although fractures are common, the porosity ofthis denture in particular would weaken it, meaning that less force would be needed in order for it to break. CP at 743. Finding 

### 1.21. Ms. Shelby challenges the finding that "[i]t was a violation ofthe denturist standard ofcare to instructPatient A to continue to use a temporary denture when the denture was apoor fit, it fractured and lostteeth, and the pain and discomfort associated with the denture could not be alleviated by the denturist orby the Patient using over-the·counter products." CP at 395. She argues that there was no evidence she instructed the patientto wear the denture after October 30 and no testimony that the standard ofcare required her to stop wearing the denture before October 30. The patient acknowledged that at an October 30 appointment, Ms. Shelby told her that the temporary denture needed to be relined orreplaced. Butthere was ample evidencethatthe problems predated October 30 and that Ms. Shelby continued to perform repairs with a view to the patient's continuing to use the temporary denture, 18

### No. 3 1 494-4-III Shelby v. Wash. State Dep'tof Health 

### contrary to the denturist standard ofcare. See the discussion offindings 1.11, 1.15, and 1.16. Finding 1.22. 

### Ms. Shelby challenges the finding that "[t]he problems with the denture as constructed could not be remedied by repairing the denture. The Respondent should not have offered to reline the denture since the reline would not have corrected the problems with improper construction. Under the denturist standard ofcare, the Respondent should have constructed a new denture for Patient A at no cost to the patient. This should have occurred without regard to the life ofthe original temporary denture." CP at 395. She argues that "[ t]he reason why the first sentence is erroneous has been discussed previously in this brief." Br. ofAppellant at 42. She provides no further explanation or direction. Here again, we will not consider assignments oferror that are unsupported by legal argument and relevant authority. We note, however, that the evidence previously discussed in connection with findings 1.11, 1.15, and 1.16 supports the first sentence ofthe finding. Ms. Shelby argues that the remainder ofthe finding is erroneous "because no experttestified that [Ms.] Shelby was required to give Patient A a new denture for free." Id. 

### But finding 1.7, which Ms. Shelby did not challenge and which is therefore a verity

on appeal,3 

### states, "Ifa denture is improperly constructed from the outset, it is the

3 

### Unchallenged factual findings are verities on appeal. Tapper v. Emp 'tSec. DepJt, 

### 122 Wn.2d 397,407,858 P.2d 494 (1993). 19

### No. 3 I494-4-III Shelby v. Wash. State Dep'tof Health obligation ofthe treating denturist to remedy the situation (including construction ofa

new denture ifnecessary) at no cost to the patient regardless ofthe period oftime thathas passed since the denture was first seated." CP at 391-92. The remainder offinding 1.22 is supported by finding 1.7. Finding 1.23. Ms. Shelby challenges the finding that "[t]heRespondent's failure to meet the denturist standard ofcare in her treatment ofPatient A causedpatientharm by causing pain and discomfortto PatientA over an extended period oftime" and that "[t]he harmto PatientA was moderate in nature." CP at 

### 395. Yet again, she argues thatthe reasons why the first sentence is erroneous are addressed previously in herbrief-argumentthat is, again, insufficient under ourrules. We have previously addressed the sufficient evidentiary support for the health law judge's findings thatthe patient experiencedpain and discomfort from the ill-fitting denture and that the denture constructed did not meetthe denturist standard ofcare. As to the remainder ofthe finding, she argues "there was no evidence to support the assertion that the degree of'harm' to PatientA was 'moderate'''; that "moderate" is a technical word that means medium in degree, and "[t]here is no evidence that Patient A had anydiagnosed problem caused bythis denture, much less any problem that reached the level ofmoderate." Br. ofAppellant at 

### 43 (emphasis added). "Moderate" is a term used to describe a tier ofharm considered in imposing sanctions underthe sanction schedule for "practice below the standard ofcare" found at 

### 20 

# I

### No. 3

### I494-4-III Shelby v. Wash. State Dep'tof Health

WAC 246-16-810. "Moderate" is not defined by agency regulations and Ms. Shelby provides no authority in offering her definition. Butthe State does not dispute that "medium in degree" is a commonly understood meaning of"moderate." Sufficient evidence supports a finding that Ms. Shelby'spractice caused moderate harm to the patient. The health lawjudge couldreasonably find that continued pain, difficulty eating and speaking, and being forced to change a patient's diet to soft foods, qualify as moderate harm. Additionally, there was evidence thatthe patientwas subjectedto a moderate or severe risk ofharm because the extended use ofLynal as a soft liner (coupled with application ofDenturite) created a condition under which bacteria could build up and put the patient at a risk ofinfection. See finding 1.25. The health law judge did not err in finding that the patient suffered moderate harm. Findings 1.24 and 1.25. Ms. Shelby challenges findings 1.24 and 1.25, which reiterate her violation ofthe standard ofcare, for "reasons

...previously discussed in this brief." Br. ofAppellant at 43-44. The insufficiency ofthis type ofargument has been previously discussed in this opinion. Finding 1.26. Ms. Shelby challenges the health lawjudge's finding 1.26 that, while the patient's communications to Ms. Shelby were inconsistent, "underthe denturist standard ofcare, the Respondent should have been able to detect the problems with the denture while treating Patient A without relying solely on the patient's inconsistent communications." CP at 396. She contends that there is no evidence to support implied 21

### No. 31494-4-111 Shelby v. Wash. State Dep 't of Health



### assertions that she (1) 

### failed to detect the problems with the denture and (2) relied solely

on the patient's inconsistent communications. Mr. Vize testifiedthat problems with the denture included malocclusion, the denture base was incorrect in that it is severely or significantly porous, the denture did not fit correctly, the denture was not aesthetically pleasing, and the denture was "simply unusable." CP at 

### 748. Mr. Cherron testified thatproblems with the denture included obvious fractures that would continue due to a failure to put a hard liner in the denture and teeth that had popped out and would continue to pop out because ofan error in its manufacture. The health lawjudge's finding that Ms. Shelby failed to detectthe problems is supported by the expert evidence that identifiedthose problems coupled with Ms. Shelby's continuing denial that any problem existed. We defer to the health lawjudge's weighing ofthe evidence and credibility determinations. He found that the problems did exist, butthat Ms. Shelby failed to recognize them. The finding that Ms. Shelby relied solely on the patient's communications is supported by Ms. Shelby's testimony; her defense to the charges was, and continues to be, that ifthe patient had complaints, she never communicated them to Ms. Shelby. See, 

### e.g., CP at 

### 807 (agreeingthat she had a "friendly amicable pleasant relationship" with the patient and "neverknew" that the patient was not satisfied). The finding that the patient's reports to Ms. Shelby were inconsistent was supported by the testimony ofthe patient and 22No. 31494-4-III 

### Shelby 

### v. Wash. State Dep'tof Health

Mr. Vize to the effect that the patient had reported some problems to Ms. Shelby. Here again, what the patient told Mr. Vize about her priortreatment by Ms. Shelby was admissible. 

### D. Challenged Conclusions of Law Ms. Shelby challenges the health lawjudge's conclusions oflaw on the grounds that the State did notprove its charges by clear and convincing evidence, renewing her argumentthat Dr. Shannon was a "superior expert" and arguing that the fact thatMr. Cherron and Mr. Vize were not in complete agreement in their opinions weakened the State's case. She again argues that there was noproofofharm beyond "minimal" harm. Her assignments oferror to the conclusions oflaw also referto "reasons

... discussed previously in this brief," which, in light ofRAP 1O.3(a)(6), we will not attemptto divine. We have already determined that the 16 findings offact to which Ms. Shelby assigns error are supported by substantial evidence, bearing in mind the clear and convincing standard applied by the health lawjudge. As to the contlicting opinions by experts, we have already discussed the fact that credibility determinations are for the health lawjudgeto make, not us. 

### See Smith v. 

### Emp'tSec. Dep't, 155 Wn. App. 24, 35, 226 P.3d 263 (2010). Finally, we have already determined that the finding of"moderate" harm is supported by substantial evidence.

23No. 31494-4-111 Shelby v. Wash. State Dep't o/Health

The health lawjudge found that Ms. Shelby did not adequately bindtheteeth to the denture, causing them repeatedly to break off(finding 1.18). He found thatthe denture was poorly constructed causing malocclusion (findings 1.13, 1.16). He found thatMs. Shelby failed to adequately address the porous nature ofthe denture (finding 1.20). His findings supportthe charge that Ms. Shelby left the liners in the patient's mouth for too long, makingthem susceptible to bacterial accumulation and the risk of infection (finding 1.25). He found that the only solution to the repeated problems consistent with the denturist standard ofcare was for Ms. Shelby to construct a new denture for the patient at no cost, which Ms. Shelby failed to do (finding 1.22). The health lawjudge's findings supporthis conclusion that Ms. Shelby committed unprofessional conduct. III. Challenge to Sanctions Finally, Ms. Shelby challenges the sanctions imposed by the health lawjudge. The Uniform Disciplinary Act (Act), chapter 18.130 RCW, governs the licensing and discipline ofhealth care professionals, including denturists. RCW 18.30.135. 

### It provides that "[i]ncompetence, negligence, ormalpractice which results in injury to a patient orwhich creates an unreasonable risk that a patient may be harmed" constitutes unprofessional conduct by any license holder covered by the chapter. RCW 18.130.180(4); Brown, 94 Wn. App. at 13. The Actprovides for the development bythe secretary ofhealth ofa uniform schedule ofsanctions and providesthat disciplining 24No. 31494-4-111 Shelby v. Wash. State Dep 't of Health

authorities "shall" impose sanctions as directed by that schedule anytime they find that a license holder has committed unprofessional conduct. RCW 18.130.160, .390.4 The sanctions schedule adopted by the secretary that is to be applied where a license holder has been found to have practiced below the standard ofcare is set forth in WAC 246-16-810, which we reproduce below:

4 As provided by RCW 18.130.390(2), the uniform sanctioning schedule was to be applied to all disciplinary actions commenced under the Act after January 1, 2009. The secretary was directed to use emergency rule-making authority to adopt rules taking effect by that date; emergency rules were adopted by Emergency Rule-Making Order WSR 09-01-188 (effective Jan. 1,2009) and WSR 09-09-035 (effective May 1,2009). The statement ofcharges against Ms. Shelby was filed on January 23, 2009, making the uniform sanctioning schedule applicable. 25

### No. 31494-4-111 Shelby v. Wash. State Dep 't of Health 

### PRACTICE BELOWSTANDARDOF CARE Severity TIer1Conduct Sanction Range Duration In consideration ofAggravating &Mitigating Circumstances Minimum Maximum least A- Caused no Of Conditions that

### may Oversightfor 3

### years 0-3ye8nl minimal patienthann Of incfude reprimand. which mayinclude ariskofminimal patient trainilg. monitoring, reprimand. training, 

# g harm supeNislon, probation, monitoring,

## I?~ evaluation,

### etc. supervision, evaluation. probation. s _1, n.

### etc. S - Causedmoderate Oversightfor2years Oversightfor5years 2years• 5years

# l~ patienthann Ofriskof which may incfude which may include unless revocation moderateto severe suspension. probation, suspension. patientharm practice restrictions, 

### probation. practice 

# Ir training, monitoring, restrictions, training, I,>' ' :; supervision, probation, monitoring.**I<:~** evaluation, etc. supervision, -, probation. evaluation.

,', 

### etc. OR

### revocation.**"""-""""~'-"-'"** C- Caused severe Oversightfor3years 

### Pennanent 3yearsharm ordeath to a which may incfude conditions. 

### pennanent human patient suspenskln, probation, res1rictions or practice restrictions, revocation. , training. monitoring, greatest supervision. probation. evaluation.

### etc. In adcfltion •demonslration of knowledgeor 

# I competency.

. 

### Once the appropriate sanctions schedule has been identified, the disciplinary authority charging a licensee with unprofessional conduct under the Act "identifies the severity ofthe unprofessional conduct and identifies a tier using the sanction schedule tier descriptions." WAC 246-16-800(3)(b). It then "identifies aggravating or mitigating factors," using a list provided by WAC 246-16-890. WAC 246-16-800(3)(c). It finally

26No. 3 I494-4-II1 Shelby v. Wash. State Dep 't

## 0/ Health

"selects sanctions within the identified tier," with "[t]he starting point for duration ofthe sanctions [being] the middle ofthe tier range." WAC 246-16-800(3)(d). Here, the health lawjudge found that Ms. Shelby's practice below the standard of

care caused moderate harm or risk ofmoderate to severe harm, falling in Tier B. The midpoint for the duration ofthe sanctions imposed under Tier B is 3.5 years. The health lawjudge found two aggravating factors: that Ms. Shelby committed multiple violations ofthe denturist standard ofcare and that her unprofessional conduct occurred over an extended period oftime. 5 

### It found one mitigating factor: the lack of intentionto harm the patient. Based on the aggravating and mitigating factors, the health lawjudge concluded that "the conduct falls in the lower end ofTier B ofthe sanction schedule" and ordered that Ms. Shelby's denturist license be suspended for at least two years, allowing her to seekreinstatementtwo years from the date ofhis final order. CP at 397. He also imposed a $5,000 fine and ordered her to refund all fees that she charged the patient for treatment.

5The departmentpoints out that WAC 246-16-890 provides for several more aggravating factors that the health lawjudge could have applied: being an experienced denturist (WAC 246-16-890(2)(a)), offering no refund to the patient (WAC 246-16­ 890(3)(c)), not showing remorse for her conduct (WAC 246-16-890(3)(f)), and having been subject to prior discipline by the department (WAC 246-16-890(2)(b)). While we may affirm an agency decision on grounds not cited by the agency, see Heidgerken v. Dep 't o/NaturalRes., 99 Wn. App. 380, 388, 993 P.2d 934 (2000), we choose not to reach other grounds where the findings made by the health lawjudge are sufficient. 27

### No. 31494-4-111 

### Shelby v. 

### Wash. State Dep 't

## 0/ Health

We accord considerable deference to an agency's determination ofsanctions, as the appropriate sanction is peculiarly a matter ofadministrative competence. 

### Brown, 94 Wn. App. at 16 (citing 

### State ex reI. Wash. Fed'n o/StateEmps. v. 

### Bd. o/Trustees o/Cent. Wash. Univ., 93 Wn.2d 60, 68-69, 605 P.2d 1252 (1980)). Following the 2008 adoption ofRCW 18.130.390, which directed the secretary ofthe department ofhealthto develop schedules defining appropriate and consistent ranges ofsanctions, a sanction that is imposed in accordance with the department's regulations and is based on findings of aggravating and mitigating circumstances supported by the record is well-nigh invulnerable to attack. The health lawjudge in this case substantially followed the procedure for determining statutes required by the regulations; ifanything, he was more lenient. The aggravating factors he found are supported by the evidence. 6 

### Ms. Shelby has not demonstrated any abuse ofdiscretion.

6 

### Both Mr. 

### Vize and Mr. Cherron testified to mUltiple violations ofthe denturist standard ofcare. And given what the health lawjudge found to be unprofessional conduct, the conduct began withthe improper manufacture ofthe denture in or about March 2007 and continued until at least December4, 2007, the lasttime Ms. Shelby saw Patient A. The misconduct may have continued to February 4, 2008 when Ms. Shelby refused to give Patient A a refund. 28No. 31494-4-II1 

### Shelby v. Wash. State Dep'tof Health

Affinned. A majority ofthe panel has determined that this opinion will not beprinted in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.

WE CONCUR:

29