Thursday, February 02, 2012

UC - willful misconduct - mistake v. failure to work up to ability


Scott v. UCBR - Cmwlth. Court - February 1, 2012




The court affirmed a UCBR decision holding that claimant committed willful misconduct


Claimant was employed as a CSR Tech II by Abington Memorial Hospital (Employer) from August 11, 1997, through September 9, 2010. Claimant’s job duties included processing trays with instruments and items to be used by doctors performing surgeries. Employer has a policy which requires that all instruments and items on the trays be carefully examined before being processed to ensure that they are clean. The use of unclean instruments and items during a surgical procedure could have a negative effect on the health of a patient. (Findings of Fact Nos. 1-4.)


On several occasions, Claimant was about making sure that the instruments and items on the trays were cleaned before the trays were sterilized and sent to the operation room for use in surgical procedures. In May 2010, Claimant was issued a written warning for processing trays containing "bio burden" from the surgery of a previous patient on the instruments. Claimant was warned that any further infractions of the cleanliness policy would result in further discipline, up to and including termination. Despite Claimant’s ability to properly perform his job duties, on August 18, 2010, the operating room returned a tray that had been processed by Claimant on August 12, 2010, because the tray contained suture material from a previous surgical operation. As a result, on September 9, 2010, Claimant was suspended for violating Employer’s cleanliness policy. On September 23, 2010, Claimant’s suspension was converted to a discharge.


The referee and Board found that the dirty tray was not a mistake but was the result of Claimant’s failure to diligently perform an important aspect of his job duties. The referee noted that Claimant was very capable of properly performing his job duties and that he had no plausible explanation or justification for allowing a dirty tray to reach the operating room in August especially since he had received a written warning for the same type of infraction the previous May. Thus, the referee and Board held that Employer had met its burden of proving that Claimant committed willful misconduct.


Mere incompetence, inexperience, or inability to perform a job generally will not support a finding of willful misconduct. Herndon v. UCBR, 540 A.2d 633 (Pa. Cmwlth. 1988); Culbreath v. UCBR, 426 A.2d 1267 (Pa. Cmwlth. 1981). However, it is well-established that an employee’s failure to work up to his or her full, proven ability, especially after multiple warnings regarding poor work performance, must be construed as willful misconduct because such conduct demonstrates an intentional disregard of the employer’s interest or the employee’s obligations and duties. Sacks v. UCBR, 459 A.2d 461 (Pa. Cmwlth. 1983); Cullison v. UCBR, 444 A.2d 1330 (Pa. Cmwlth. 1982). In the present case, the testimony of the employer witnesses constitutes substantial evidence in support of the Board’s findings. In fact, Claimant admitted before the referee that he was aware of all policies and procedures pertaining to his job duties, he was capable of performing these duties, he had been previously warned regarding dirty trays, and the dirty trays could lead to dire consequences for a new patient. The remaining question, then, is whether the Board’s findings support the Board’s conclusion of willful misconduct. The court held that "they do in this case."


Similar to the claimants in Sacks and Cullison, Claimant was repeatedly warned regarding his poor work performance with respect to the cleanliness of the surgical trays he inspected. The record reveals that he was warned and/or disciplined for dirty trays on at least three occasions from August 2009 to May 2010. Following the last incident, Claimant was specifically warned that any further infractions would result in additional discipline, up to and including termination. Despite this warning, just three months later, in August 2010, Claimant failed to properly inspect another tray, which included suture material from a previous surgical procedure. At the very least, Claimant’s continued poor work performance demonstrated an intentional disregard of the employer’s interest or the employee’s obligations and duties. Thus, the Board did not err in concluding that Claimant engaged in willful misconduct.

abuse - expungement - cocaine in infant's system is "abuse" - marital privilege and confidential communications

B.K. v. DPW - Cmwlth. Court - February 1, 2012




Expungement denied in case where the 17-month old child of a married couple, mother B.K. and father R.C., tested positive for the presence of cocaine.


Abuse - The presence of cocaine in the child's system was held to constitute "child abuse" under section 6303(b)(1)(i) of the CPSL, which defines it in pertinent part, as "[a]ny recent act or failure to act by a perpetrator which causes nonaccidental serious physical injury to a child under 18 years of age." 23 Pa.C.S. §6303(b)(1)(i). In turn, section 6303(a)(1) of the Law defines "serious physical injury," in pertinent part, as "[a]n injury that … [s]ignificantly impairs a child‟s physical functioning, either temporarily or permanently." 23 Pa.C.S. §6303(a)(1).


Marital privilege/confidential communications - The court rejected the claim of error for requiring B.K.'s husband, R.C., to testify as to spousal confidential communications after she invoked the privilege of 42 Pa. C.S. 5923. Although the ALJ erroneously relied upon section 5924(b)(3) in allowing R.C.'s testimony, he did not err in overruling B.K.'s objection. The spousal incompetence provision of section 5924 and the spousal confidential communication privilege of section 5923 are quite separate and distinct. The former provision disqualifies a husband or wife to give any testimony adverse to the spouse subject to the exceptions in 5924(b); the latter is much more limited and relates to the competence of a spouse to testify regarding confidential communications.


Section 5924(a) of the Judicial Code provides that "[i]n a civil matter neither husband nor wife shall be competent or permitted to testify against each other." 42 Pa.C.S. §5924(a). However, section 5924(b) provides, in pertinent part, that "Subsection (a) shall not apply in an action or proceeding. . . (3) For custody or care of children, including actions or proceedings relating to visitation rights and similar matters. . . . (4) Arising under 23 Pa.C.S. Ch. 61 (relating to protection from abuse)…. 42 Pa.C.S. §5924(b)(3), (4).


In addition, 23 Pa. C.S. 6381(c) states that : Except for privileged communications between a lawyer and a client and between a minister and a penitent, a privilege of confidential communication between husband and wife … shall not constitute grounds for excluding evidence at any proceeding regarding child abuse or the cause of child abuse. Thus, the spousal confidential communication privilege of section 5923 cannot be invoked in the instant expunction proceeding because B.K. could not have had a reasonable expectation of marital confidentiality in her statements pursuant to 23 Pa. C.S. 6381(c).


Copies of medical records on which medical testimony was based - The court rejected B.K. claim that the ALJ erred in permitting a doctdor to testify at the hearing because CYS failed to provide copies of the medical records that the doctor relied on while testifying. However, theorder upon which B.K. bases her claim is not contained in the certified record of this case. Rather, B.K. merely appended a copy of the order to her brief as Exhibit A. An appellate court is limited to considering only those facts that have been duly certified in the record on appeal. B.K. could have sought inclusion of the order in the certified record of this appeal as a supplemental record pursuant to Pa.R.A.P. 1926 or 1951(b). . . . Her failure to make the order underlying her claim a part of the certified record of this appeal utterly precludes this Court from considering the merits of the claim and constitutes a waiver of her allegation of error.

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