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.
2

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 
3

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?
4

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. 

 
5

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).
6

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 
7

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 
8

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 decisions5to 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). 
9

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. 
10

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 
11

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 
12

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.
13

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. 
14

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.
15

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 47a48a. 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. 
16

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. 
17

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
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pinnacle Health System, :

Petitioner :

:

v. : 18 C.D. 2014

:

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

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