           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sharon A. Lountzis,                           :
                                              : No. 1354 C.D. 2015
                            Petitioner        : Submitted: January 22, 2016
                                              :
                     v.                       :
                                              :
Unemployment Compensation                     :
Board of Review,                              :
                                              :
                            Respondent        :


BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                                  FILED: March 2, 2016


              Sharon A. Lountzis (Claimant) petitions for review of the June 30,
2015 order of the Unemployment Compensation Board of Review (Board), which
affirmed a referee’s decision and held that Claimant was ineligible for benefits
under Section 402(e) of the Unemployment Compensation Law (Law). 1                        We
affirm.
              Claimant was employed as a full-time licensed practical nurse (LPN)
with Golden Living Center (Employer), a skilled nursing care facility, from

       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937), 2897, as amended, 43 P.S.
§802(e). Section 402(e) provides than an employee shall be ineligible for compensation for any
week in which her unemployment is due to her discharge or temporary suspension from work for
willful misconduct connected with her work.
November 10, 2003, to March 27, 2015. Employer has a policy providing that, if a
resident falls, a licensed nurse is to assess the resident for injuries and offer any
necessary emergency treatment. Reproduced Record (R.R.) at 31a-32a.2 The
policy also sets forth ten tasks the licensed nurse is to perform, and it specifically
requires the licensed nurse to record the resident’s vital signs, response to
neurological assessment, recent food and fluid intake, diagnosis, medications, and
relevant history. R.R. at 31a.
               On March 19, 2015, a certified nursing assistant (CNA) notified
Claimant that a resident had fallen in the hallway. Claimant found the resident

       2
        Employer’s “Falls Change of Condition Guidelines for Completion” policy includes the
following:

               GUIDELINE STATEMENT: To assess individual condition after
               a fall occurs and to identify the reason and/or risk factors for the
               fall in order to prepare a plan of care to reduce the potential for
               future falls.
               DEFINITIONS: Fall definition: A fall is a sudden change in
               position usually involving the floor. Finding a resident on the floor
               or lowering/assisting a resident to the floor is considered a fall.
               GUIDELINE: Policy: It is the policy of the center to complete the
               Change in Condition Report-Post Fall Investigation Summary after
               every known resident fall.

               Procedure:
               If a resident falls . . .

               1. The licensed nurse will assess the resident for injuries and
               provide the necessary emergency treatment. Initiate the center 911
               policy and procedure if appropriate.

               2. The licensed nurse shall initiate the Change of Condition
               Report-Post Fall Investigation Summary. This shall be kept in the
               resident’s medical record.

R.R. at 31a.


                                                2
lying on the floor, did a quick visual assessment, and did not notice anything
seriously wrong with the resident. Claimant knew that G.P., another LPN, was
assigned to the fallen resident’s unit and saw G.P. at the nurse’s station. Claimant
called out to G.P., told the CNA to stay with the resident, and walked toward the
nurse’s station.
                 Claimant and G.P. returned to the resident, and G.P. noted that,
pursuant to Employer’s policy, it was necessary to get a supervisor/registered nurse
before moving her. Claimant returned to her work. G.P. left the resident with the
CNA and went to find a supervisor.                 The supervisor arrived on the floor
approximately fifteen minutes later,3 and she performed an assessment.
                 Employer suspended Claimant on March 20, 2015, pending an
investigation, and discharged her on March 27, 2015, for violating its policy. The
local job center determined that Claimant was discharged for willful misconduct
and was ineligible for benefits under Section 402(e). Claimant appealed, and a
referee held a hearing at which both parties participated without benefit of counsel.
                 Kelly Brown, Employer’s director of nursing, testified that Employer
discharged Claimant for gross negligence after she failed to assess a fallen resident
as required by Employer’s policy.4 Brown acknowledged that Claimant was not
assigned to care for that particular resident, but she said that a nurse’s duty is to
care for all residents at the facility, regardless of assignments. Brown stated that
since she became director of nursing in July 2014, she has emphasized through


       3
          The witnesses gave slightly different estimates of the length of time that the resident
was left alone on the floor with the CNA.

       4
            Brown stated that Employer discharged two employees based on the March 19, 2015
incident.


                                               3
nursing meetings and daily communications that all employees are responsible for
all of the residents. Additionally, Brown testified that performing assessments is
within the scope of practice of any licensed nurse, whether a registered nurse or an
LPN. According to Brown, Claimant should have completed an assessment of the
patient and assisted her back to her wheelchair. R.R. at 5a-6a.
             Brown further testified that the “fall” policy, created in November
2014, was discussed at two separate nursing meetings that Claimant had attended.
She added that Claimant was discharged after Employer completed its
investigation into the incident, in accord with Employer’s disciplinary policy. R.R.
at 7a-11a, 15a-16a.
             Claimant testified that an LPN is not permitted to move a patient
without a supervisor’s approval and she had always understood the policy to mean
that a registered nurse was responsible for assessments. She said that she did not
recall being told otherwise by Brown and was shocked to learn that she was being
discharged for violating the policy. R.R. at 11a-14a. Claimant stated that she did
not perform all of the tasks listed in the policy; “[s]ince it was not my patient, I left
it up to her nurse and the supervisor. If there – she was in imminent danger, I
would’ve done something then, if nobody was there, but I did pass it on to her
nurse . . . .” R.R. at 13a.
             Claimant testified that she shared Brown’s beliefs that an employee
should help any resident who needs assistance and said that she went back to her
work because she believed that G.P. had assumed responsibility for the resident’s
care. R.R. at 16a-17a. Claimant acknowledged that she did not take the resident’s
vital signs, but she explained that in order to do so, she would have had to leave the




                                           4
resident anyway and return to the nurse’s station to retrieve her blood pressure cuff
and other equipment. R.R. at 17a.
              The referee found that: Employer’s policy outlines the procedures to
be followed when a resident falls; Claimant attended two meetings during which
the policy was explained; and Employer makes it clear to employees that they are
responsible for every resident, not just those directly under their care. (Findings of
Fact Nos. 5-8.) Citing Claimant’s own testimony, the referee further found that
when Claimant was summoned to a resident who had fallen on the floor, she did
only a visual assessment before leaving her to get the LPN assigned to her care.
(Findings of Fact Nos 9-12.)          The referee determined that Claimant did not
perform the required assessment because the resident was not her assigned patient.
Concluding that Claimant failed to demonstrate good cause for violating
Employer’s policy, the referee affirmed the job center’s determination that she is
ineligible for benefits under section 402(e) of the Law.
              Claimant appealed to the Board, which affirmed the referee’s
decision.     The Board adopted the referee’s findings and conclusions and
specifically noted that Claimant did not credibly establish good cause for her
failure to follow Employer’s reasonable policy. Claimant now appeals to this
Court.5




       5
          Our scope of review is limited to determining whether constitutional rights have been
violated, whether errors of law were committed, or whether findings of fact are supported by
substantial evidence. Procyson v. Unemployment Compensation Board of Review, 4 A.3d 1124,
1127 n.4 (Pa. Cmwlth. 2010).



                                              5
              Initially we note that an employer contesting a claimant’s right to
benefits under Section 402(e) bears the burden of proving willful misconduct.6
Walsh v. Unemployment Compensation Board of Review, 943 A.2d 363, 369 (Pa.
Cmwlth. 2008). If the employer satisfies its initial burden, the burden then shifts to
the employee to demonstrate good cause for her actions. Lausch v. Unemployment
Compensation Board of Review, 943 A.2d 363, 369 (Pa. Cmwlth. 2008).                           A
claimant establishes good cause by showing that her actions were justified or
reasonable under the circumstances.            Roberts v. Unemployment Compensation
Board of Review, 977 A.2d 12, 16 (Pa. Cmwlth. 2009).                     Whether or not an
employee’s actions amount to willful misconduct is a question of law subject to
this Court’s review. Noland v. Unemployment Compensation Board of Review,
425 A.2d 1203, 1205 (Pa. Cmwlth. 1981).
              Claimant first argues that Employer did not satisfy its burden to prove
that she violated its policy. Claimant asserts that she acted reasonably and fulfilled
her duties to the best of her ability; she had no reason to believe that she would be
disciplined for her actions; and that she could not consciously violate Employer’s
rule because it is vague and does not specifically define who is obligated to take
actions.
              However, in making these arguments, Claimant relies on facts
different from those found by the Board.                 In unemployment compensation
proceedings, the Board is the ultimate fact-finder, empowered to determine the

       6
         While the Law does not define the term willful misconduct, our courts have defined it
as including: wanton or willful disregard for an employer’s interests; deliberate violation of an
employer’s rules; disregard for standards of behavior which an employer can rightfully expect of
an employee; or negligence indicating an intentional disregard of the employer’s interest or an
employee’s duties or obligations. Navickas v. Unemployment Compensation Board of Review,
787 A.2d 284, 288 (Pa. 2001).


                                               6
credibility of witnesses and resolve conflicts in evidence; the Board’s findings are
conclusive on appeal where they are supported by substantial evidence. Curran v.
Unemployment Compensation Board of Review, 752 A.2d 938, 940 (Pa. Cmwlth.
2000).
            Contrary to Claimant’s assertions, Brown’s testimony is substantial
evidence demonstrating that Claimant knowingly violated Employer’s policy.
Brown testified that Claimant was present at two meetings during which the policy
was reviewed with employees.          Additionally, Claimant admitted that she
performed only a quick visual assessment of the fallen resident. Thus, Employer’s
burden to prove a policy violation was met.
            Claimant next argues that Brown’s repeated references to the fact that
the resident was left on the floor for fifteen minutes and Brown’s failure to
challenge Claimant’s testimony that the resident did not require first aid indicate
that Claimant’s discharge was improperly based upon extraneous factors. In this
regard, Claimant maintains that her conduct was consistent with applicable rules
and her concern for the resident’s well-being.
            Again, Claimant relies on her preferred version of the facts, rather
than those found by the Board. The fact that a party may have given a different
version of the events or might view the facts differently than the Board is not
grounds for reversal if substantial evidence supports the Board's findings.
Middletown Township v. Unemployment Compensation Board of Review, 40 A.3d
217, 223 (Pa. Cmwlth. 2012). The law is clear that the Board is the ultimate finder
of fact and arbiter of witness credibility. Peak v. Unemployment Compensation
Board of Review, 501 A.2d 1383, 1385, 1388 (Pa. 1985).




                                         7
             Because Employer satisfied its burden of proof, the burden shifted to
Claimant to show good cause for her actions. The Board did not credit Claimant’s
testimony that she acted in accordance with her understanding of Employer’s
policy; therefore, Claimant did not prove good cause for her conduct.
             Our review of the record confirms that the Board’s findings are
supported by substantial evidence. Those findings, in turn, support the Board’s
conclusion that Claimant was discharged for willful misconduct rendering her
ineligible for benefits under section 402(e) of the Law.
             Accordingly, we affirm.




                                       MICHAEL H. WOJCIK, Judge




                                          8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sharon A. Lountzis,                    :
                                       : No. 1354 C.D. 2015
                       Petitioner      :
                                       :
                  v.                   :
                                       :
Unemployment Compensation              :
Board of Review,                       :
                                       :
                       Respondent      :




                                    ORDER


            AND NOW, this 2nd day of March, 2016, the order of the
Unemployment Compensation Board of Review, dated June 30, 2015, is affirmed.




                                     __________________________________
                                     MICHAEL H. WOJCIK, Judge
