COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Alst on and Senior Judge Coleman

ALFON MARISTELA MEMORANDUM OPINION * v. Record No. 1203-10-3 PER CURIAM NOVEMBER 23, 2010 VIRGINIA BOAR D OF NURSING

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE Charles N. Do rsey, Judge (Thomas E. Strelka; Strickland, Diviney & Strelka, on brief), for appellant. (Kenneth T. Cuccinelli, II, Atto rney General; David E. Johnson, Deputy Attorney General; Howard M. Casway, Senior Assistant Attorney General; Allyson K. Tysinger, Senior Assistant Attorney General, on brief), for appellee.
Alfon Maristela appeals the trial court’s ruling affirming the decision of the Virginia Board of Nursing (the Board) to indefinitely suspend his nursing license for a period of not less than two years. Maristela argues that (1 ) the testimony of Carla Hazelwood regarding statements made three years prior by an unnamed witness, dubbed “Patient B,” violated Maristela’s constitutional right of confrontation in administrative h earings; (2) the Board lacked sufficient ev idence to lawfully conclude that Maristela failed to obtain vital signs and assess “Patient A” at the appointed times during his shift on August 29, 2006 or August 30, 2006; (3) the Board lacked su fficient evidence to lawfully conclude that Maristela failed to obtain vital signs and assess a patient suffering a left popliteal bypass at the appointed ti mes during his shifts on September 7, 2006 and September 10, 2006; (4) the Board lacked sufficient evidence to la wfully conclude that Mari stela fell asleep on his

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - shift in contravention of his duties as an on-duty nurse; (5) the tria l court erred by finding that the Board’s decision was in conformity with statutory and constitutiona l authority and that the Board’s final decision was supported by substantial eviden ce; and (6) the actions of the Board amounted to a miscarriage of justice such that this Court should appl y the “ends of justice” exception to Rule 5A:18. Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the decision of the trial court. See Rule
5A:27.
BACKGROUND Maristela was issued a nurs ing license on March 15, 2004. At the time of the incidents, Maristela worked 7:00 p.m. to 7:00 a.m. in the Progressive Care Un it at Carilion Roanoke Memorial Hospital (Carilion). After receiving patient complaints and peer complaints, Carilion conducted a formal investigation. Maristela was suspended from employment on September 18, 2006, pending the investigation, and terminated on September 25, 2006. On January 9, 2009, Maristela was noticed fo r an informal conference regarding the complaints and his nursing license. Maristela did not appear at the informal conference. The “Agency Subordinate,” who conduc ted the conference, recommended that the matter be referred to the Board for a full hearing. The Board accepted the recommendation, and on June 23, 2009, Maristela was noticed for a formal administra tive hearing. The Commonwealth argued that Maristela failed to properly care for his patients, falsified docume nts, and fell asleep during his shift. Maristela appeared pro se at the administrative hearin g on July 22, 2009. He had the opportunity to cross-examine the Commonwealth’s w itnesses and testified on his own behalf. At the conclusion of the hearing, the Board voted to suspend indefinitely Mari stela’s nursing license for at least two years.- 3 - Maristela appealed to the trial court. Th e trial court affirmed the Board’s decision and held that Maristela failed to demonstrate an error of law subject to review; that the Board decision was in conformity with Constitutional Rights and Statutory Authority; that the Board’s decision was supported by substantial evidence in the R ecord and that the Board’s Conclusions of Law constitute proper construction of the regulations at issue in this case. This appeal followed.
ANALYSIS Right to confront witnesses Maristela argues that the testimony of Carl a Hazelwood regarding statements made three years prior by “Patient B” violated Maristela’s constitutional right to confront witnesses. He also contends that Hazelwood’s testimony regarding Pa tient B amounted to “inadmissible hearsay.” Maristela did not object to Hazelwood’s te stimony regarding Patient B at the hearing before the Board. The first time he raised this issue was in the trial court. “We hold that an appellant, under the provisi ons of the APA, may not raise issues on appeal from an administrative agency to the circui t court that it did not submit to the agency for the agency’s consideration.” Pence Holdings, Inc. v. Auto Center, Inc. , 19 Va. App. 703, 707, 454 S.E.2d 732, 734 (1995); see also Doe v. Virginia Board of Dentistry , 52 Va. App. 166, 176, 662 S.E.2d 99, 104 (2008) (en banc). Appellant asks this Court to apply the “ends of justice” exception to Rule 5A:18. We decline to do so. Sufficiency of the evidence Maristela argues that the Board lacked suffici ent evidence to lawfully conclude that he (a) failed to obtain vital signs and assess Patient A at the ap pointed times during his shift on August 29, 2006 or August 30, 2006; (b) failed to obt ain vital signs and assess Patient B during- 4 - his shifts on September 7, 2006 and September 10, 2006; and (c) fell asleep on his shift in contravention of his duties as an on-duty nurse. The Board’s order made the following findings of fact: 2. During the course of his employment on the step down unit at Carilion Roanoke Memorial Hospital, Roanoke, Virginia: a. On August 29, 2006, Mr. Mari stela failed to obtain vital signs and assess Patient A, who test ified that she was being treated for a pulmonary embolism, at the appointed times during his shift, although Mr. Maristela recorded vital signs and findings of an assessment in her hospital chart. b. On August 30, 2006, Mr. Ma ristela failed to perform a physical assessment on Patient A, although he documented findings in her hospital chart. Further, Mr. Maristela obtained Patient A’s vital signs only afte r she requested that he do so. c. On September 7, 2006, and on September 10, 2006, Mr. Maristela failed to obtain vita l signs and assess Patient B, who had a left femoral popliteal bypass, at the appointed times during his shift, although Mr. Maristela re corded vital signs and findings of an assessment in his hospital chart. d. By his own admission, on several occasions between August 6, 2006, and September 10, 2006, Mr. Maristela was found asleep during his shift. 3. During the hearing, u pon questioning by the Board, Mr. Maristela acknowledged that he did not conduct the physical assessments and that he falsely recorded vital signs and findings of assessments in the two patients’ charts. “The sole determination as to factual issues is whether subs tantial evidence exists in the agency record to support the agency’s decision. The reviewing court ma y reject the agency’s findings of fact only if, consider ing the record as a whole, a reasonable mind would necessarily come to a different conclusion.” Johnston-Willis, Ltd. v. Kenley , 6 Va. App. 231, 242, 369 S.E.2d 1, 7 (1988) (citations omitted). Patient A testified at the Board hearing. She said that Maristela di d not check her vitals or perform the necessary assessments at the appoint ed times. Patient A was a clinical resource- 5 - nurse at Carilion and familiar w ith the nursing standards. Carili on’s investigation revealed the same facts. Lila Coderre and Judy Hamilton testified at the Board hearing. Both testified that Maristela slept during his shift. Coderre testifie d that Maristela fell asleep while he was charting and that she found him asleep at the nurse’s station and in a patie nt’s room. Coderre recalled an instance where she was in a patient’s room and th e call bell was ringing. She stepped out of the patient’s room and saw Maristela as leep in front of the call bell. She “hollered out,” but he still did not awaken. In addition, Hamilton testified that she found Maristela asleep in patients’ rooms on different occasions. Coderre and Ham ilton each prepared written statements, and the investigative report also corroborated their testimony. In response to a question from the Board, Ma ristela admitted to “dozing off” on occasion. He said, “I get like sleepy, but I cannot – you know, I don’t sleep, like snore and sleep for hours.” When asked if he would “doze off,” he responded, “Doze off. That’s all.” There is sufficient information in the reco rd to support the Boar d’s findings regarding Maristela’s lack of care for Patient A and Maristela sleeping during his shift. With respect to Maristela’s assignment of error that there was insufficient evidence to prove that he failed to obtain vital signs a nd do assessments for Patient B on September 7, 2006 and September 10, 2006, Maristela’s argument focuses on Coderre’s testimony. Coderre testified that she worked at least one night on August 29, 200 6 or August 30, 2006, when Patient A was in the hospital. Coderre also testified about finding Marist ela asleep on several occasions. However, she did not testify about Patient B or whether she was working on September 7, 2006- 6 - or September 10, 2006. Therefore, Maristela’s argument challenging Coderre’s testimony does not relate to the assignment of error regarding Patient B. 1 Rule 5A:20(e) mandates that appellant’s openi ng brief include “[t]he standard of review and the argument (including principles of law and authorities) relating to each assignment of error.” Maristela did not comply with Rule 5A :20(e) because his opening brief does not contain any principles of law, or citati on to legal authorities, or the reco rd to fully develop his arguments regarding Patient B. We find that Maristela’s failure to co mply with Rule 5A:20(e) is significant, so we will not consider the issue regarding the sufficiency of the evidence concerning Maristela’s lack of care for Patient B. Since appellant’s brief did not address the September 7 and September 10 incidents, we will not consider this assignment of error. See Muhammad v. Commonwealth , 269 Va. 451, 478, 619 S.E.2d 16, 31 (2005) (citation omitted) (“Failur e to adequately brief an assignment of error is considered a waiver.”). Trial court’s review Maristela argues that the trial court erred by finding that the Boar d’s decision was in conformity with statutory and constitutional au thority and that the Bo ard’s final decision was supported by substantial evidence. He contends the Board improperly reli ed on the investigative report prepared by Loretta Hops on-Bush. Hopson-Bush was a Se nior Investigator with the Department of Health Profession s. Maristela argues that Hops on-Bush’s report was incomplete because she interviewed only one witness, Sandy Sayre, wh o conducted the investigation at Carilion. Maristela contends Hopson-Bush should ha ve interviewed him. He asserts that he did not

1 We decline to consider “an issue not expressly stated among the ‘questions presented.’” Hillcrest Manor Nursing Home v. Underwood , 35 Va. App. 31, 39 n.4, 542 S.E.2d 785, 789 n.4 (2001) (The requirement that an opening brief contain “questions presented” has, as of July 1, 2010, been replaced by the requirement that the ope ning brief contain “assignments of error.” See Rule 5A:20.).have an opportunity to provide mi tigating informatio n for the report, and, as a result, the report was “heavily one-sided, in complete, and without credibility .” In his brief, he states that he “should have been afforded a chance to contribute to the report so that the Board could ha ve made findings based on all of the available inform ation rather than that which was easiest to obtain.” Errors of law fall into two categor ies: first, whether the agency decision-maker acted within the scope of his auth ority, and second, whether the decision itself was supported by the evidence. Where the agency has the statutory authorization to make the kind of decision it did and it did so with in the statutory limits of its discretion and with the intent of the statute in mind, it has not committed an error of law in the first category. The second category of error is limited to a determination whether there is substantial evidence in the agency record to support the decision. Johnston-Willis, Ltd. , 6 Va. App. at 242, 369 S.E.2d at 7 (citing State Board of Health v. Godfrey , 223 Va. 423, 290 S.E.2d 875 (1982)). Here, the Board had the aut hority to make the decision it did and did so within the statutory limits of its discretion. Marist ela was accused of violating Code § 54.1-3007 2 and 18 VAC 90-20-300(A)(2)(f). 3 Both provisions gave the Board the authority to suspend Maristela’s license.

2 The Board . . . may suspend any license . . . for a stated period or indefinitely . . . for any of the following causes: . . . 2. Unprofessional conduct; . . . 5. Practicing in a manner contrary to the standards of ethics or in such a manner as to make his practice a danger to the health and welfare of patients or to the public; . . . 8. Abuse, negligent practice. Code § 54.1-3007.

3 The board has the authority to . . . suspend a license . . . upon proof that the licensee . . . has viol ated any of the provisions of § 54.1-3007 of the Code of Virg inia. For the purpose of establishing allegations to be included in the notice of hearing, the board has adopted the following definitions: . . .- 8 - There was substantial eviden ce to support the Board’s deci sion. Maristela’s argument focuses on the credibility of Hopson-Bush’s report . He asserts that the report was incomplete because he was not interviewed. Hopson-Bush testif ied that she tried to c ontact Maristela. She mailed a letter to him via certified mail and regular mail; however, the certified letter was returned as “unclaimed” and the regular letter was returned as “unable to forward” and “not deliverable.” She mailed a second certified letter to him, and it too was returned as “unclaimed.” Hopson-Bush also tried to e-mail Maristela; however, the e-mail was returned as not being deliverable. Hopson-Bush attempted to contact Maristela, but to no avail. Maristela also questions the fact that H opson-Bush interviewed only Sayre, who was the investigator at Carilion. Sayre produced a report regarding her investig ation of Maristela at Carilion. Sayre’s report included information from other nurses and patients at Carilion. The rules of evidence are consider ably relaxed in administrative proceedings, and the findings of administrative agencies will not be reversed solely because ev idence was received which would have been inadmissible in court. No reversible error will be found in such cases unless there is a cl ear showing of pr ejudice arising from the admission of such evidence , or unless it is plain that the agency’s conclusions were dete rmined by the improper evidence, and that a contrary re sult would have been re ached in its absence. Virginia Real Estate Comm’n v. Bias , 226 Va. 264, 270, 308 S.E.2d 123, 126 (1983) (citing Norfolk and Western Railway Co. v. Commonwealth , 162 Va. 314, 322-23, 174 S.E. 85, 88 (1934)). There was no error or prejudice in admitting Hopson-Bush’s report. See Code § 2.2-4020(C). The report was based on Carilion’s investigation, including interviews of nurses and patients and documentati on of Maristela’s actions.

Unprofessional conduct means, but shall not be limited to: . . . Abusing, neglecting or abandoning patients or clients . . . . 18 VAC 90-20-300(A)(2)(f).- 9 - The Board’s request for costs The Board requested an award of costs expende d in this appeal. On consideration of the record before us, we decline to award the Board its costs on appeal.
CONCLUSION For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27. Affirmed.