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Fore v. Board of Review


April 5, 2010


On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 187,374.

Per curiam.


Submitted: September 16, 2009

Before Judges Stern and Sabatino.

Claimant appeals from the final administrative determination of the Board of Review which affirmed the Appeal Tribunal on the record made. The Appeal Tribunal, on cross-appeals from a determination of the Deputy Director of the Division of Unemployment Insurance, concluded appellant was "disqualified" for benefits based on "gross misconduct," not mere "misconduct" as determined by the Deputy Director, by making false entries on patient charts. See N.J.S.A. 43:21-5(b). The Appeal Tribunal concluded that appellant's misconduct constituted a fourth degree crime and therefore "gross misconduct."

The discharge was based on the conduct concerning one patient, A.W.,*fn1 but a subsequent investigation revealed similar practices. The issue of post-discharge discovery, as in wrongful termination cases, has not been developed.

Claimant contends that there was no evidence that she "purposefully destroyed, altered or falsified" A.W.'s record because she relied on the advice of the treating physician, Dr. McKenna, there was no basis for a finding of "gross misconduct."

According to claimant, she wrote on A.W.'s record exactly what Dr. McKenna dictated, and hence there was no "falsification" or "alteration." Nor did she intend "to deceive or mislead." Rather, she used the "community form" to write the nurse's assessment by recording Dr. McKenna's assessment "verbatim" as her own.

The claimant did not contest her misconduct. According to the Appeal Tribunal, "[t]he claimant acknowledged that she had not performed the assessments, but rather got the information from the treating physician.... The claimant also acknowledged that she had been similarly noting other patients' charts in this manner for approximately two (2) years." She also "confirmed that she was aware, from previous employment, that standard nursing practices prohibited making such notations."

The record supports the findings on the limited record before us. Rosemarie Frank, Robert Wood Johnson's employee relations manager, testified that she and Lisa Breza, claimant's supervisor, met with claimant on April 4, 2008, and she "admitted that she had not seen the patient that she indicated that she done this assessment on."

Ms. Breza, the Executive Director of the Cancer Institute of New Jersey at Robert Wood Johnson, testified that a staff member reported to her that claimant had filed a report about a patient's condition although she "knew the patient [an out-patient] had not seen the nurse." Breza called the patient to inquire about an issue relating to medication, and confirmed that the patient had seen the doctor on the day before, but not a nurse. Hence, she knew the report on "pain assessment" was false. When claimant was called to Breza's office and confronted, claimant "indicated to [Breza] that no she had not se[en] the patient because she was busy at the time....

[a]nd she had spoken to the physician and also looked at his notes."

Claimant testified at the hearing before the Appeal Tribunal. She acknowledged that she had not seen the patient on the day in question, but that she "documented verbatim" what the treating doctor, Dr. McKenna, reported to her. She further testified she was "the only nurse in the department," she did not have the time to do the assessment as three patients were scheduled for treatment every half hour, and that she "did exactly what [] [she] was instructed to do" in terms of making the report. In fact, she testified that she complained about the situation to Breza and another supervisor "several times," and that she did her work as directed and had been criticized when she did not complete a report. Claimant further testified that she wrote the assessment "based on a verbal doctor's report" "without actually seeing the patient" which was "consistent with procedure that was in place in the department." She stated that the chief radiation therapist, Barbara Foley, advised her "to complete the charts in this manner," and that Breza was aware of the procedure, as were other named personnel who were not called on her behalf. Finally, she also acknowledged that she did not report to Breza and Foley, at the meeting resulting in her discharge, that she recorded the doctor's report or followed standard procedure because she was not asked those questions. Under her version, however, they would have known of the practice as alleged by claimant.

In her testimony, Breza did not indicate she knew of the practice. Frank testified it was not "a common practice" and that she spoke with the people claimant identified as supporting the practice, and they stated "they were unaware that [claimant] was doing this when we talked with them."

There is substantial evidence in the record to support the findings of the Appeal Tribunal and, in turn, of the Board of Review. The Tribunal added that claimant had her professional obligations not to follow improper or inappropriate instructions from people (including the chief radiation technician Foley) who were not nurses. The Appeal Tribunal also expressly added it did not "doubt that the claimant was told to complete the charts as she had been" or that her "workload was possibly too much for one person to handle." It stated that "[n]one of that[,] however, relieves the claimant of the obligation to act in a manner consistent with her licensure," or excuses the indication on medical records "that she had performed the assessments" which she had not.

Therefore, the record also includes sufficient evidence that claimant misrepresented that she performed professional assessments that she had not and, that by doing so, she violated a section of the New Jersey Code of Criminal Justice, N.J.S.A. 2C:21-4.1. There is no requirement or policy requiring a conviction to preclude unemployment benefits, cf. In Re Election Law Enforcement Comm'n, __ N.J. __ (2010) (use of campaign funds not proper to defend indictment for crime), and even if Robert Wood Johnson or its staff was not deceived or mislead, we can take notice that pain assessment reports can be reviewed to evaluate regulatory compliance and insurance recoveries. Accordingly, the record supported the denial of benefits under N.J.S.A. 43:21-5(b) for "gross misconduct."

We recognize that the Appeal Tribunal did not actually make credibility determinations on the issue of instructions received by claimant and office practice, although significantly the Tribunal, and subsequently the Board of Review, was willing to accept claimant's credibility and assertions of office practice because it was deemed irrelevant to claimant's ethical and professional responsibilities. In doing so, the Board did not act arbitrarily or inconsistent with its statutory obligations.

Irrespective of any violation of public policy, claimant may have some remedy against Robert Wood Johnson or the Cancer Institute if the practice was as she described it and supervisory personnel encouraged its use, but she was nevertheless discharged. We need not explore those questions at this time because the issue is not presented in this case. The impact of this administrative determination and claimant's own ethical and professional obligations would have to be considered in the appropriate forum if such an action were commenced. See, e.g., Tartaglia v. USB PaineWebber, Inc., 197 N.J. 81, 102-12 (2008). However, we must now affirm the denial of unemployment benefits.

Were we to accept claimant's argument that she should receive unemployment benefits when discharged for falsifying a report, or because she did not "deceive or mislead any person as to information... concerning the patient," we would be permitting wrongdoing and suppressing the truth about misconduct by encouraging employers to retain wrongdoers who follow their supervisors' unlawful commands--and would be acting inconsistent with public policy established in legislation such as the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8, and our common law jurisprudence. See, e.g., Tartaglia, supra, House v. Carter-Wallace, Inc., 232 N.J. Super. 42 (App. Div.), certif. denied, 117 N.J. 154 (1989). Stated differently, if we took the position advanced by appellant we would encourage employers to retain wrong doers as a means of avoiding unemployment compensation losses.

Even assuming claimant may well be able to recover from the employer in an appropriate forum if she did, in fact, follow the directions of her supervisors or the doctors to whose cases she was assigned, the record supports the findings and implementation of statutory policy by the Board of Review insofar as these proceedings are concerned. See, e.g., Brady v. Board of Review, 152 N.J. 197 (1997).

The final administrative determination is affirmed.

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