             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, Judge1
                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 Law2 (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).
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 signs.
               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 Testimony (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 unemployment 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 level 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 committed, or findings of fact were not supported by substantial
evidence. Oliver v. Unemployment Compensation Board of Review, 5 A.3d 432, 438 n.2 (Pa.
Cmwlth. 2010).



                                                2
              The sole issue 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
Employer indicated other nurses neglected to enter 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 regulation 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
mean 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.
Caraballo 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.

                                               3
employer. Brant v. Unemployment Compensation 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 action.                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 for 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 conditions 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 which 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 retroactively 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 a


                                           4
patient’s condition change and no longer reflect those 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 administration 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, Judge




                                          5
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jessmay Y. Reyes,                    :
                    Petitioner       :
                                     :
           v.                        :
                                     :
Unemployment Compensation            :
Board of Review,                     :   No. 864 C.D. 2016
                 Respondent          :



                                 ORDER


           AND NOW, this 14th day of September, 2017, the April 27, 2016
order of the Unemployment Compensation Board of Review is affirmed.




                                   ___________________________
                                   JOSEPH M. COSGROVE, Judge
