[Cite as Hale v. Ohio Dept. of Job & Family Servs., 2012-Ohio-775.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


MARY S. HALE                                               JUDGES:
                                                           Hon. William B. Hoffman, P. J.
        Plaintiff-Appellant                                Hon. John W. Wise, J.
                                                           Hon. Julie A. Edwards, J.
-vs-
                                                           Case No. 2011 CA 00087
OHIO DEPARTMENT OF JOB AND
FAMILY SERVICES, et al.

        Defendants-Appellees                               OPINION




CHARACTER OF PROCEEDING:                              Civil Appeal from the Court of Common
                                                      Pleas, Case No. 2010 CV 02711


JUDGMENT:                                             Affirmed



DATE OF JUDGMENT ENTRY:                               February 27, 2012



APPEARANCES:

For Plaintiff-Appellant                               For Defendant-Appellee ODJFS

KATHLEEN O. TATARSKY                                  SUSAN M. SHEFFIELD
236 Third Street, SW                                  ASSISTANT ATTORNEY GENERAL
Suite 100 Carnegie Building                           20 West Federal Street, 3rd Floor
Canton, Ohio 44702                                    Youngstown, Ohio 44503

                                                      For Defendant-Apellee Windsor

                                                      SCOTT P. SANDROCK
                                                      BRENNAN, MANNA & DIAMOND
                                                      75 East Market Street
                                                      Akron, Ohio 44308
Stark County, Case No. 2011 CA 00087                                                  2

Wise, J.

      {¶ 1} Appellant Mary S. Hale appeals the decision of the Court of Common

Pleas, Stark County, which affirmed a decision of the Ohio Unemployment

Compensation Review Commission denying unemployment benefits to appellant, a

licensed practical nurse (“LPN”). The appellees herein are the Ohio Department of Job

and Family Services (“ODJFS”) and Windsor Medical Center, appellant’s former

employer. The relevant procedural facts leading to this appeal are as follows.

      {¶ 2} Appellant commenced employment as an LPN at Windsor Medical Center,

a skilled residential nursing facility, in July 2004. Part of her duties included taking

telephone orders from physicians for medications prescribed for patients in Windsor’s

assisted living unit. On September 14, 2009, appellant took a telephone order from a

physician for the drug Roxanol. She properly recorded the physician’s order of 5 mg

sublingual every four to six hours as needed for pain. Appellant then duly called the

prescription into the pharmacy.

      {¶ 3} However, when appellant proceeded to “chart” the information, via a

software program, on the patient’s nursing care plan, she incorrectly entered 5 “ml”

instead of 5 “mg.” The charge nurse, Karen Ball, discovered appellant’s entry error and

confronted her about it. Appellant initially indicated her belief that the “ml” and “mg”

entries were equivalent.

      {¶ 4} On September 21, 2009, appellant was terminated from her position with

Windsor.

      {¶ 5} Appellant thereafter applied for unemployment benefits. On October 13,

2009, the ODJFS Director issued an initial determination that appellant had been
Stark County, Case No. 2011 CA 00087                                                    3


discharged with just cause, thus disallowing her application for benefits. Appellant filed

for redetermination; however, the Director affirmed the original decision on November

5, 2009.

      {¶ 6} Appellant thereupon appealed to the Unemployment Compensation

Review Commission. A hearing officer conducted telephonic hearings on April 14, 2010

and May 3, 2010. On or about May 10, 2010, the hearing officer issued a decision

affirming the Director’s redetermination decision that appellant was ineligible for

unemployment benefits.

      {¶ 7} On June 1, 2010, appellant timely requested further review by the Review

Commission. On June 30, 2010, the claim was again disallowed.

      {¶ 8} Appellant then filed an administrative appeal to the Stark County Court of

Common Pleas. On March 15, 2011, the trial court issued a four-page decision

affirming the Review Commission’s decision.

      {¶ 9} On April 14, 2011, appellant filed a notice of appeal to this Court. She

herein raises the following two Assignments of Error:

      {¶ 10} “I.   THE TRIAL COURT ERRED IN FINDING THAT THE REVIEW

COMMISSION'S DECISION WAS SUPPORTED BY COMPETENT CREDIBLE

EVIDENCE AND WAS NOT UNLAWFUL, UNREASONABLE OR AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE. A HEARING OFFICER WHO MAKES A

CREDIBILITY DETERMINATION BASED ON A TELEPHONE HEARING IS NOT IN

THE BEST POSITION TO JUDGE THE CREDIBILITY OF WITNESSES.
Stark County, Case No. 2011 CA 00087                                                 4


     {¶ 11} “II.   THE REVIEW COMMISSION ERRED AS MATTER OF LAW IN

FINDING THAT HALE VIOLATED ANY STATE LAW AND THE TRIAL COURT'S

FINDING THAT THE HEARING OFFICER'S FINDING WAS LAWFUL IS IN ERROR.”

                                         I., II.

     {¶ 12} In her First and Second Assignments of Error, appellant contends the trial

court erred in finding that the Review Commission's decision was supported by the

evidence and was not unlawful, unreasonable, or against the manifest weight of the

evidence. We disagree.

     {¶ 13} Generally, when reviewing a trial court's determination regarding whether

the order of an administrative agency is supported by the evidence, the appellate court

determines only whether the trial court abused its discretion. See Rossford Exempted

Village School District Bd. of Educ. v. State Bd. of Educ. (1992), 63 Ohio St.3d 705,

707, 590 N.E.2d 1240.

     {¶ 14} However, the process of filing applications for determination of benefit

rights and claims for unemployment compensation benefits with the ODJFS Director is

set forth in R.C. 4141.28. As a reviewing court, we may reverse an unemployment

board determination if it is unlawful, unreasonable, or against the manifest weight of

the evidence. Tzangas, Plakas & Mannos v. Administrator (1995), 73 Ohio St.3d 694,

653 N.E.2d 1207, paragraph one of the syllabus. While appellate courts are not

permitted to make factual findings, or to determine the credibility of witnesses, they

have the duty to determine whether the board's decision is supported by the evidence

in the record. Id. at 696, 653 N.E.2d 1207. The same standard of review is shared by

all reviewing courts, from the common pleas court through the Ohio Supreme Court. Id.
Stark County, Case No. 2011 CA 00087                                                     5


Therefore, the duty of this court is to review the decision of the Review Commission to

determine whether it is unlawful, unreasonable, or against the manifest weight of the

evidence. Cardani v. Olsten Home Health Care (March 22, 1999), Tuscarawas App.

No.1998AP110118, unreported. As a reviewing court, we may neither substitute our

judgment for that of the Commission on questions of fact nor reassess the credibility of

the witnesses. Kilgore v. Bd. of Rev., Bur. of Unemp. Comp. (1965), 2 Ohio App.2d 69,

72, 206 N.E.2d 423.

      {¶ 15} In the case sub judice, it is undisputed that Windsor did not implement the

“progressive discipline policy” set forth in its personnel manual. It is further undisputed

that appellant’s data entry error was discovered prior to any mistaken dosages actually

being given to the patient in question. Thus, appellant points out, Windsor’s own

system of checks and balances for dispensing medication caught the data error, which

appellant had never committed previously in her employment there.

      {¶ 16} Appellees ODJFS and Windsor both respond that in addition to the

progressive discipline policy, the Windsor personnel manual provided that some severe

infractions allow for immediate dismissal without warning. One such infraction is an

action in violation of federal, state, or local law. Appellee directs us to O.A.C. 3701-17-

59, which states in pertinent part:

      {¶ 17} “ ***

      {¶ 18} “(G) Medication shall be administered in accordance with accepted

standards of practice to a resident in a residential care facility only by the following

persons authorized by law to administer medication:

      {¶ 19} “ ***
Stark County, Case No. 2011 CA 00087                                                     6


      {¶ 20} “(2) A licensed practical nurse holding proof of successful completion of a

course in medication administration approved by the Ohio board of nursing ***.

      {¶ 21} “(H) Residential care facilities that administer medication shall comply with

all of the following:

      {¶ 22} “ ***

      {¶ 23} “(2) All medications shall be given only to the individual resident for whom

they are prescribed, given in accordance with the directions on the prescription or the

physician's or other authorized prescriber's orders, and recorded on the resident's

medication record required by paragraph (I)(7) of this rule. ***.”

      {¶ 24} In the case sub judice, as noted previously, appellant did not actually

administer or give the erroneous medication dosage to the patient; the error was

caught by the charge nurse prior to such time. Thus, we initially conclude that no basis

would have existed to fire appellant for a violation of the above law set forth in the Ohio

Administrative Code.

      {¶ 25} However, appellee further responds that under R.C. 4141.29(D)(2)(a), no

individual may receive benefits if that individual “has been discharged for just cause in

connection with the individual’s work.” In Irvine v. State of Ohio Unemployment

Compensation Bd. of Review (1985), 19 Ohio St.3d 15, 17, the Ohio Supreme Court

defined “just cause" as "that which, to an ordinarily intelligent person, is a justifiable

reason for doing or not doing a particular act." Thus, the issue before us focuses on

whether Windsor’s decision to terminate appellant from her LPN position was justified

under such standard.
Stark County, Case No. 2011 CA 00087                                                    7


      {¶ 26} The record indicates that the Roxanol medication at issue came in a liquid

form, with 20 milligrams of morphine medication in every milliliter. Thus, if the resident

would have been given the amount of medication which appellant transcribed, i.e., 5

ml., the resident would have received 100 mg. of morphine, or 20 times the prescribed

amount. Given the resident's age and weight, per a pharmacist’s report introduced at

the hearing, such a dose, without intervention, would be potentially lethal. See Tr. 1, at

25; Appendix 1, Exhibit E. As we noted in our recitation of facts, when appellant was

confronted by her charge nurse about the incident, she at first stated that the “mg” and

“ml” measurements were synonymous for this medication, not realizing the magnitude

of the error.

      {¶ 27} While we recognize this was a single incident by appellant, upon review,

we are unable to conclude that the decision of the Review Commission, and the trial

court in affirming same, was unlawful, unreasonable, or against the manifest weight of

the evidence.

      {¶ 28} Appellant adds to her argument that her telephonic hearing before the

review commission hearing officer calls into question the officer’s ability to properly

determine credibility. We note various OAC provisions allow telephonic hearings (see,

e.g., OAC 4146-5-05), and appellant provides no case law authority clearly supporting

her position. In fact, telephonic hearings have been specifically determined not to be a

denial of due process. See Wright v. Unemployment Compensation Bd. of Review

(1988), 51 Ohio App.3d 45. Furthermore, in the case sub judice, in a notification sent to

the parties on December 14, 2009, the Review Commission notified the parties that an

in-person hearing could be requested. Appellant did not take advantage of said notice,
Stark County, Case No. 2011 CA 00087                                                 8


nor was a specific objection made to the use of a telephonic hearing during the

proceeding. As such, we find appellant’s claim in this regard to be waived for purposes

of appeal.

      {¶ 29} Appellant’s First and Second Assignments of Error are overruled.

      {¶ 30} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Stark County, Ohio, is hereby affirmed.



By: Wise, J.

Hoffman, P. J., and

Edwards, J., concur.



                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                              JUDGES
JWW/d 0129
Stark County, Case No. 2011 CA 00087                                         9


              IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




MARY S. HALE                              :
                                          :
       Plaintiff-Appellant                :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
OHIO DEPARTMENT OF JOB AND                :
FAMILY SERVICES, et al.                   :
                                          :
       Defendants-Appellees               :         Case No. 2011 CA 00087




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.

       Costs assessed to appellant.




                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                             JUDGES
