Bice v. Bd. of Psychologist Exam'rs

• Decision Date: 19 October 2016
• Docket Number: A153028
• Citation: 281 Or.App. 623,383 P.3d 913
• Parties: David T. Bice, Ph.D., Petitioner, v. Board of Psychologist Examiners, Respondent.
• Court: Oregon Court of Appeals

281 Or.App. 623

383 P.3d 913

David T. Bice, Ph.D., Petitioner,

v.Board of Psychologist Examiners, Respondent.

A153028

Court of Appeals of Oregon.

Argued and submitted March 17, 2015.

October 19, 2016

Steven J. Sherlag argued the cause and filed the briefs for petitioner.

Carolyn Alexander, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Prall, Judge pro tempore.^*

ARMSTRONG, P.J.

Petitioner, a psychologist, seeks judicial review of a final order of the Board of Psychologist Examiners in which the board concluded that petitioner had violated professional standards in his treatment of one of his clients and imposed sanctions. We first reject without discussion petitioner's challenge to the denial of his motion to dismiss based on investigatory misconduct. In his remaining assignments of error, petitioner principally argues that the board erred in modifying key findings of historical fact made by the administrative law judge (ALJ). On de novo review of the record under ORS 183.650(4), and as explained in detail below, we find that key disputed historical facts are not as found by the board. Because we must remand to the board for reconsideration and entry of an order consistent with our findings on those disputed historical facts, ORS 183.650(4), we do not reach petitioner's assignments of error related to the board's application of the professional standards to his conduct.

A detailed discussion of the allegations against petitioner and the evidence presented at the contested case hearing would be of no value to the bench, bar, parties, or public. Thus, except as supplemented below in our analysis, we only briefly set out the background facts here, which are taken from the board's findings that petitioner does not dispute, as supplemented by uncontroverted evidence in the record.

Petitioner has been licensed as a psychologist in Oregon since 1975 and has not previously been subject to disciplinary action by the board. In August and September 2003, SM, an 18–year–old woman,¹ saw petitioner as a client for seven sessions. SM had decided to stop seeing her prior therapist because she did not like the advice she was receiving and began seeing petitioner, who had been her father's therapist, to help her process her grief over her father's sudden death, before she left the state for college. SM's mother filed a complaint against petitioner shortly after SM stopped treating with him based on allegations that petitioner had behaved in a manner that made SM uncomfortable, “indicating that [petitioner's] behavior with SM was personal and physical without being overtly sexual.” The board dismissed that complaint because SM told her mother that she did not want to pursue the complaint herself and did not sign a release for her records. The board, which it now admits was in violation of its own rules, deliberately decided not to notify petitioner about the complaint or the dismissal.

In 2009, the father of SC, a female client of petitioner, filed a complaint against petitioner based on two birthday cards and a high school graduation card petitioner had sent to SC, when SC was still a minor. SC did not provide a release of her medical records for the investigation. In an interview, SC stated that petitioner had never acted inappropriately toward her and called her father's complaint an attempt at “emotional revenge” by her father who “wanted control” and was opposed to SC seeking therapy.

In addition, the board's investigator, Berry, contacted another of petitioner's female clients, DC, after DC's father filed a complaint about petitioner's billings. Berry told DC that her call had nothing to do with DC's father and told DC that “several young women” had come forward accusing petitioner of inappropriate conduct. DC told Berry that petitioner was never inappropriate with her, but, in the course of the conversation, became very uncomfortable because Berry was being manipulative, kept trying to take her comments out of context, and insinuated that petitioner had done something wrong. As a result, DC filed a complaint with the board against Berry, which the board declined to pursue. Berry admitted that she had tried to press DC into saying that petitioner had acted inappropriately toward DC.²

In 2010, the board reopened the complaint involving SM because SC's father had filed his complaint. At that time, SM agreed to cooperate in an investigation against petitioner at the urging of Berry and her mother after Berry told her and her mother that the board had received a complaint involving a “similar situation.” The board pursued this disciplinary action against petitioner based on the allegations relating to SM and SC.

A contested case hearing was held before the ALJ in November 2011. During that hearing, 14 witnesses testified, including petitioner, SM, SM's mother, SC's father, Berry, colleagues of petitioner, and expert witnesses. The ALJ also received many exhibits, including petitioner's notes of his sessions with SM, diary entries made by SM during the time that she saw petitioner, Berry's notes, petitioner's investigator's notes of a conversation with SC, the three cards that petitioner had sent SC, as well as other exhibits. The ALJ issued a 19–page proposed order that determined that the board had failed to prove that petitioner had violated professional standards in his treatment of either SM or SC.

The board subsequently issued an amended proposed order that concluded petitioner had violated professional standards with regard to his treatment of SM and imposed sanctions, but agreed with the ALJ that it had not proved violations with regard to SC. Petitioner filed exceptions to that order. The board then issued its 31–page final order, which is the subject of this judicial review.

The final order rejected petitioner's exceptions and adhered to its conclusions in the amended proposed order. Petitioner does not challenge the board's findings, as clarified in the board's response to petitioner's exceptions, that petitioner would sit next to SM during sessions, put his arm around SM to comfort her when she cried during sessions, and hugged SM at the end of sessions; and that SM subjectively felt uncomfortable. Petitioner does challenge on judicial review several aspects of the board's final order that differ from the ALJ's proposed order. The most significant of those differences include the board's finding that its investigator, Berry, acted appropriately and did nothing to taint the reliability of the evidence, crediting all of SM's testimony at the hearing, rejecting portions of petitioner's testimony as incredible or unpersuasive, finding its own expert's testimony more persuasive than petitioner's expert in key respects, and modifying historical facts found by the ALJ, which we discuss in detail below.

The board concluded that petitioner's conduct in his sessions with SM violated ORS 675.070(2)(d)³ (unprofessional conduct), Ethical Standard 2.01 (boundaries of competence), Ethical Standard 3.04 (avoiding harm), and Ethical Standard 10.01 (informed consent).⁴ The board concluded that petitioner violated those professional standards because petitioner used touch as a therapy intervention with SM (an “emerging area” in psychology) without “first establishing a strong therapeutic alliance” and while failing to monitor SM's reactions to being touched, failing to make chart notes documenting his use of touch and his rationale for doing so, and failing to address touch with SM in his intake informed-consent documents or in his chart notes, and because SM was “strongly” affected “to the extent that she will never see a male counselor again.”

On judicial review, petitioner challenges the board's modifications in the final order, challenges the board's interpretation of the Ethical Standards as improper rule-making without notice, and argues that the record lacks substantial evidence to support the board's ultimate conclusions that he violated professional standards. Because we find several of the disputed historical facts are not as found by the board, we reverse and remand for the board to reconsider its decision, as required by ORS 183.650(4), and we do not reach petitioner's other challenges.

When an agency modifies an ALJ's findings of historical fact under ORS 183.650(3), we review those modified findings de novo under ORS 183.650(4), applying a preponderance of the evidence standard to our assessment of the record.⁵

Weldon v. Bd. of Lic. Pro. Counselors and Therapists , 266 Or. App. 52, 63, 337 P.3d 911 (2014), rev. den. , 356 Or. 690, 344 P.3d 1112 (2015). However, when an agency modifies an ALJ's order by making additional findings, it is a modification under ORS 183.650(2), which requires an explanation by the agency. We review additional findings for substantial evidence under ORS 183.482(8)(c). Weldon , 266 Or.App. at 69–70, 337 P.3d 911 ; Becklin v. Board of Examiners for Engineering , 195 Or.App. 186, 206, 97 P.3d 1216 (2004), rev. den. , 338 Or. 16, 107 P.3d 26 (2005).

In taking de novo review of a modified finding of historical fact, when the fact is predicated on a witness's credibility or the persuasiveness of expert testimony—although neither is per se a “historical fact” in itself—we must make an independent assessment of that witness's credibility or the persuasiveness of the expert's testimony. Corcoran v. Board of Nursing , 197 Or.App. 517, 529, 107 P.3d 627 (2005). We also must make an independent finding of the disputed historical fact based on a review of the record as a whole. Id. That is, we are not limited to choosing between the ALJ's finding and the agency's finding; instead, we must make the finding based on our independent assessment of how the evidence preponderates. Id . at 530, 107 P.3d 627. Because we make the finding...