MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                         Nov 04 2015, 9:33 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEES
Lisa Jackson                                            Gregory F. Zoeller
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Kyle Hunter
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Lisa Jackson,                                           November 4, 2015
Appellant,                                              Court of Appeals Case No.
                                                        93A02-1504-EX-192
        v.                                              Appeal from the Review Board of
                                                        the Department of Workforce
Review Board of the Indiana                             Development
Department of Workforce                                 Steven F. Bier, Chairperson
Development, and Company,                               George H. Baker, Member
                                                        Larry A. Dailey, Member
Appellees
                                                        Review Board Case No.
                                                        15-R-342



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-192 | November 4, 2015   Page 1 of 9
                               Case Summary and Issues
[1]   Lisa Jackson was discharged from her employment as a licensed practical nurse

      (“LPN”) with Eaglecare, LLC (“Eaglecare”). An administrative law judge

      (“ALJ”) of the Indiana Department of Workforce Development determined

      Jackson was discharged for just cause. The Unemployment Insurance Review

      Board (“Review Board”) adopted and affirmed the ALJ’s decision, thereby

      denying Jackson unemployment benefits. Jackson, pro se, appeals the Review

      Board’s decision, raising the following restated issues: (1) whether the Review

      Board abused its discretion by not accepting additional evidence; and (2)

      whether the Review Board’s decision was supported by substantial evidence.

      Concluding Jackson waived her claim regarding the Review Board accepting

      additional evidence and the Review Board’s decision was supported by

      substantial evidence, we affirm.



                            Facts and Procedural History
[2]   Eaglecare, a nursing home facility, employed Jackson as an LPN until her

      discharge on October 9, 2014. Eaglecare discharged Jackson due to her

      repeated failure to administer patients’ medication per physician order. On

      August 17, 2014, Jackson was reprimanded for “fail[ing] to perform medication

      administration correctly.” Transcript Exhibit at 31. Jackson was again

      reprimanded on September 8, 2014, for failing to properly administer

      medication: “She left them at resident’s bedside, and coincidently the resident

      never took their [physician-]ordered medication.” Id. at 14, 32. On October 4,

      Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-192 | November 4, 2015   Page 2 of 9
      2014, Jackson was reprimanded for failing to administer a patient’s seizure

      medication in a timely manner. The patient’s medication was to be

      administered between 8:00 p.m. and 10:00 p.m., but Jackson did not administer

      the medication until after 10:00 p.m. Finally, on October 9, 2014, Jackson was

      discharged for her “[b]latant disregard for resident care,” as evidenced by

      multiple incidents of failing to administer physician-ordered medications in a

      safe and timely manner. Id. at 33.1


[3]   Jackson subsequently filed a claim for unemployment benefits with the Indiana

      Department of Workforce Development. On November 20, 2014, a claims

      deputy found she was discharged for just cause and thus ineligible for benefits.

      Jackson appealed the decision of the claims deputy on November 28, 2014, and

      a hearing before an ALJ was held on January 30, 2015. Jackson appeared at

      the hearing telephonically and admitted she failed to properly administer

      medications on all of the dates she received reprimands.


[4]   As to the final incident on October 4, 2014, Eaglecare alleged the seizure

      medication was to be administered no later than 10:00 p.m. but that Jackson

      did not administer the medication until midnight. Jackson denied she waited

      until midnight but admitted she did not administer the medication until

      sometime between 10:00 p.m. and 11:00 p.m. “[I]t’s sometimes just not

      possible . . . to pass your meds in a timely manner,” Jackson explained, to



      1
       Jackson was also reprimanded on July 16, 2014, for failing to document a patient’s blood pressure per
      physician order on July 12, 2014, and July 13, 2014.

      Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-192 | November 4, 2015           Page 3 of 9
      which Eaglecare responded, “[T]his is such a serious medication, a seizure

      medication and it has to be given timely to be effective.” Tr. at 19-20. Jackson

      countered, “I mean, I did my job as best as I could. . . . It did not cause any

      negative outcome to [the patient]. It didn’t hurt her.” Id. at 21.


[5]   The ALJ concluded:

              In July, August and September, 2014, the Employer reprimanded
              the Claimant for medication errors. On October 04, 2014, a
              patient’s seizure medication was due at 9:00 pm. The Claimant
              was to administer the medication within an hour before or after
              9:00 pm. The Claimant did not administer the medication until
              after 10:00 pm. The Claimant’s post-reprimands failure to timely
              administer seizure medication resulted from wanton indifference
              to the Employer’s interest in its patients receiving medication in a
              timely manner. The Employer discharged the Claimant from
              employment for just cause in connection with work. The
              Claimant is ineligible to receive unemployment insurance
              benefits.


      Tr. Ex. at 35.


[6]   On February 13, 2015, Jackson appealed the ALJ’s decision to the Review

      Board, which adopted the ALJ’s findings and conclusions and affirmed the

      denial of benefits on March 2, 2015. The Review Board did not hold a hearing

      or accept additional evidence. Jackson now appeals the Review Board’s

      decision.




      Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-192 | November 4, 2015   Page 4 of 9
                                  Discussion and Decision
                                       I. Additional Evidence
[7]   Jackson contends the Review Board abused its discretion when it declined to

      accept additional evidence; she does not state the nature of the “new evidence.”

      Appellant’s Brief at 2.2 Title 646, Section 5-10-11(b) of the Indiana

      Administrative Codes provides,


               Each hearing before the review board shall be confined to the
               evidence submitted before the administrative law judge unless it
               is an original hearing. Provided, however, the review board may
               hear or procure additional evidence upon its own motion, or
               upon written application of either party, and for good cause
               shown, together with a showing of good reason why the
               additional evidence was not procured and introduced at the
               hearing before the administrative law judge.


[8]   Jackson did not file a written application to present additional evidence to the

      Review Board, nor did she attempt to show good cause that such evidence

      should be accepted. Moreover, even assuming Jackson had complied with the

      rule, her brief is devoid of any argument or citations in support of her

      contention that the Review Board should have accepted additional evidence.




      2
        We suspect Jackson is referring to a patient’s medication record that has been crudely redacted and
      annotated. See Appellant’s Appendix at 2. But “[w]e will not become an advocate for a party, nor will we
      address arguments which are either inappropriate, too poorly developed or improperly expressed to be
      understood.” Ramsey v. Review Bd. of Ind. Dep’t of Workforce Dev., 789 N.E.2d 486, 487 (Ind. Ct. App. 2003)
      (citation omitted). “[O]ne who proceeds pro se is held to the same established rules of procedure that a
      trained legal counsel is bound to follow and, therefore, must be prepared to accept the consequences of his or
      her action.” Id. (citation and internal quotation marks omitted).

      Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-192 | November 4, 2015             Page 5 of 9
      See Ind. Appellate Rule 46(A)(8)(a) (requiring each contention in the appellant’s

      brief be supported by cogent reasoning and citations to relevant authority). As

      a result, the issue is waived. See Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015)

      (“A litigant who fails to support his arguments with appropriate citations to

      legal authority and record evidence waives those arguments for our review.”).


                                II. Discharge for Just Cause
                                      A. Standard of Review
[9]   Jackson was denied unemployment benefits because the Review Board

      determined she was discharged for just cause. The Indiana Unemployment

      Compensation Act provides unemployment benefits to individuals who are

      “unemployed through no fault of their own.” Ind. Code § 22-4-1-1. An

      individual is therefore disqualified for unemployment benefits if she is

      discharged for “just cause.” Ind. Code § 22-4-15-1(a). “When an employer

      alleges that a discharged employee seeking unemployment benefits was

      discharged for just cause, the employer has the burden of establishing a prima

      facie case showing just cause, after which it is incumbent upon the employee to

      produce evidence which rebuts the employer’s case.” Russell v. Review Bd. of Ind.

      Dep’t of Emp’t & Training Servs., 586 N.E.2d 942, 947-48 (Ind. Ct. App. 1992).

      As relevant here, “discharge for just cause” includes “refusing to obey

      instructions” and “any breach of duty in connection with work which is

      reasonably owed an employer by an employee.” Ind. Code § 22-4-15-1(d)(5),

      (9).


      Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-192 | November 4, 2015   Page 6 of 9
[10]   If supported by the evidence, decisions of the Review Board are conclusive and

       binding as to all questions of fact. Benard v. Review Bd. of Ind. Dep’t of Workforce

       Dev., 997 N.E.2d 1077, 1080 (Ind. Ct. App. 2013); see also Ind. Code § 22-4-17-

       12(a). When a decision of the Review Board is challenged, the standard of

       review on appeal is threefold: “(1) findings of basic fact are reviewed for

       substantial evidence; (2) findings of mixed questions of law and fact—ultimate

       facts—are reviewed for reasonableness; and (3) legal propositions are reviewed

       for correctness.” Recker v. Review Bd. of Ind. Dep’t of Workforce Dev., 958 N.E.2d

       1136, 1139 (Ind. 2011). In determining whether the Review Board’s findings

       were supported by “substantial evidence,” we neither reweigh the evidence nor

       judge the credibility of witnesses; rather, we consider only the evidence most

       favorable to the Review Board’s findings. J.M. v. Review Bd. of Ind. Dep’t of

       Workforce Dev., 975 N.E.2d 1283, 1286 (Ind. 2012). We will reverse the Review

       Board’s decision only if there is no substantial evidence to support it. Id.


           B. Jackson’s Failure to Properly Administer Medication
[11]   From what we can discern, Jackson is arguing there is not substantial evidence

       to support the Review Board’s finding that she failed to properly administer

       medication. Jackson alleges Eaglecare’s representative made false statements

       during the hearing and claims she administered the patient’s seizure medication

       on time on October 4, 2014: “This medication was given on time and [the

       Director of Nursing Services] did not give the right time in her statement.”

       Appellant’s Br. at 4. Aside from the fact Jackson admitted she administered the



       Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-192 | November 4, 2015   Page 7 of 9
       medication late when she testified at the hearing,3 we conclude Jackson’s

       argument is merely a request for this court to reweigh the evidence and reassess

       witness credibility, which we will not do. See J.M., 975 N.E.2d at 1286.


[12]   Jackson was reprimanded three times within a three-month period for failing to

       administer medication in a safe and timely manner. Each incident was

       documented with a written warning—all of which were admitted as exhibits

       during the hearing—and Jackson presented no evidence to rebut Eaglecare’s

       case. As the Review Board’s findings were supported by substantial evidence,

       we defer to its fact-finding.



                                                   Conclusion
[13]   Jackson has waived her claim regarding the Review Board accepting additional

       evidence, and the Review Board’s findings were supported by substantial

       evidence. We therefore affirm the Review Board’s decision denying Jackson

       unemployment benefits.




       3
        The patient’s medication was ordered for 9:00 p.m., but Eaglecare permits medications to be administered
       up to one hour before or after the time ordered. Jackson testified,
              [ALJ:]       [M]edications were due at 9:00 pm but you gave them at midnight. Your response
                           to that?
              [Jackson:]   I gave the meds before eleven . . . . I did not give her any meds at twelve o’clock.
                           That’s not true. I don’t agree with that at all.
              [ALJ:]       Well, ma’am, what time did you give the meds?
              [Jackson:]   I don’t know exactly what time I gave it, but it was after ten, . . . it was before
                           eleven.
       Tr. at 18.

       Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-192 | November 4, 2015                    Page 8 of 9
[14]   Affirmed.


       Vaidik, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 93A02-1504-EX-192 | November 4, 2015   Page 9 of 9
