IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jessmay Y. Reyes, :

Petitioner :

:

v. :

: Unemployment Compensation :

Board of Review, : No. 864 C.D. 2016

Respondent : Submitted: December 16, 2016

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE JULIA K. HEARTHWAY, Judge 1

HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE COSGROVE FILED: September 14, 2017

Jessmay Reyes (Claimant) petitions for review of an April 27, 2016

order of the Unemployment Compensation Board of Review (Board) which denied

her unemployment benefits under Section 402(e) of the Unemployment

Compensation Law 2 (Law). Upon review, we affirm.

Claimant worked as a licensed practical nurse for Corecard

Behavioral Health Management Inc. (Employer), from April 1, 2014 through

1 This case was decided before Judge Hearthway’s service on the Court ended September

1, 2017.

2 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.

§802(e)

.2

January 11, 2016 as a full

- time licensed practical nurse. 3 The clinic is an in

patient facility in which patients undergo a rehabilitative program that includes the

administration of methadone. Part of Claimant’s job responsibilities involved

visually assessing patients in the evening to track their tolerance to methadone and

monitor symptoms of over sedation. Claimant was required to immediately record

her observations and the patients’ vital s igns.

On the morning of January 11, 2016, Claimant recorded her visual

assessments for several patients. The recordings made by Claimant indicated the

assessments took place the evening of January 11. (Certified Record (C.R.) Item

10, Transcript of T estimony (Transcript) at 6, 13.) These assessments indicated all

patients were alert and showed no signs of over sedation. (Employer Exhibit E2.)

Claimant was subsequently terminated for falsifying medical records of patients

.

Claimant filed for un employment benefits and received a notice of

determination finding her ineligible under Section 402(e) of the Law. Following a

hearing, the Referee found Claimant eligible for benefits because her “improper

clinical documentation” did not rise to the leve l of work

- related willful

misconduct. (C.R. Item 11, Referee’s Decision/Order at 2.) Employer appealed to

the Board, which reversed the decision of the Referee and found Claimant

ineligible under Section 402(e). This appeal followed. 4

, 5

3 Except where noted otherwise, the facts are derived from the findings of fact set forth in

the Board’s April 27, 2016 order.

4 This Court’s review is limited to a determination of whether constitutional rights were

violated, errors of law were commit ted, or findings of fact were not supported by substantial

evidence. Oliver v. Unemployment Compensation Board of Review, 5 A.3d 4 32, 438 n.2 (Pa.

Cmwlth. 2010).3 The sole is sue before the Court is whether Claimant’s actions rose to

the level of willful misconduct, making her ineligible for unemployment

compensation benefits.

Claimant argues her conduct does not meet the definition of willful

misconduct because she made the entries early to ensure they were being done.

(Claimant’s Brief at 4.) This incident was an isolated event which did not provide

the mens rea required for termination. Id. at 5. The documents presented by

E mployer indicated other nurses neglected to en ter the results of their visual

assessments and therefore rules were not applied uniformly. Id. at 7. Claimant

further argues the procedure which required documentation of visual assessments

was “something ‘new,’” and therefore no rule, policy, or regula tion was implicated

by her actions. Id. at 9. If Claimant observed changes during a later shift which

required further documentation, she would take care of it at that time. Id. at 8.

Willful misconduct in the unemployment context has been held to

me an a wanton or willful disregard for an employer’s interests, a deliberate

violation of the employer’s rules, a disregard for standards of behavior which an

employer can rightfully expect from an employee, or negligence indicating an

intentional disregard for the employer’s interest or the employee’s duties and

obligations. Navickas v. Unemployment Compensation Board of Review

, 787 A.2d

284, 288 (Pa. 2001). The burden of proving willful misconduct lies with the

5 We note an amicus curiae brief was filed by Jose Caraballo, a friend of Claimant. Mr.

Car aballo acknowledges leave of court has not been sought nor does he allege involvement in the

underlying proceedings. The purpose of his brief is to “provide this court with an objective view

of the appellant and the relief she is respectfully requesting.” The vast majority of his brief

consists of statements of facts that are not part of the record. This Court cannot consider

evidence that was never made part of the official record, Kennedy House, Inc. v. Philadelphia

Commission on Human Relations, 143 A .3d 476, 485 (Pa. Cmwlth 2016). We are therefore

unable to consider his arguments.4

employer. Brant v. Unemployment Compensatio n Board of Review

, 477 A.2d 596,

597 (Pa. Cmwlth. 1984). If the employer proves the existence of the rule, the

reasonableness of the rule, and the fact of its violation, the burden of proof shifts to

the claimant to prove that he had good cause for his ac tion. Guthrie v.

Unemployment Compensation Board of Review, 738 A.2d 518, 522 (Pa. Cmwlth.

1999).

Instantly, Employer’s human resource manager testified Employer

maintained a policy which included the falsification of documents as a terminable

offense f or a first instance. (C.R. Transcript at 4.) This policy was provided to

Claimant during orientation. Id. Claimant freely admitted to having logged her

visual assessment of the patients some twelve hours in advance, essentially

predicting what their co nditions would be. Id. at 13. The documents at issue are

methadone induction forms, used by nurses to indicate a patient’s level of alertness

after the administration of methadone. Id. at 7. These forms are part of a patient’s

record. Id. at 8.

The policy at issue and implicated here is one which prohibits the

falsification of records, not a “new” policy which directed the recordation of a

nurse’s visual assessment. The simple fact remains that Claimant entered

information on her patients’ records w hich she knew to be untrue, as it was simply

not possible for Claimant to make a visual assessment of each patient and record

the results of those assessments at a moment in time that had not yet come to pass.

Modifying a record at a later date cannot ret roactively create truth from the initial

inaccuracy.

We cannot accept Claimant’s arguments that her predetermination of

record information was excusable because she could easily change them should a5

patient’s condition change and no longer reflect thos e made at the end of a prior

shift. This practice simply does not comport with Employer's quite reasonable

(and vitally important) policy. As explained by one of Claimant’s supervisors

when testifying at the hearing, methadone is a narcotic, the administ ration of which

carries the risk of death. (C.R. Transcript at 6.) Claimant knew about the policy

and it is undisputed that Claimant violated that policy when she wrote the results of

visual assessments she did not make. Claimant’s explanation that she assumed her

patients’ conditions ahead of time to forestall her neglecting that duty at the time it

was required of her simply cannot constitute good cause for violating that policy.

For these reasons, the order of the Board is affirmed.

______ _____________________ JOSEPH M. COSGROVE, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jessmay Y. Reyes, :

Petitioner :

:

v. :

: Unemployment Compensation :

Board of Review, : No. 864 C.D. 2016

Respondent :

O R D E R

AND NOW, this 14 th day of September

, 2017, the April 27, 2016

order of the Unemployment Compensation Board of Review is affirmed.

___________________________ JOSEPH M. COSGROVE, Judge