Kentucky Bd. of Nursing v. Ward

Decision Date26 August 1994
Docket NumberNo. 93-CA-1893-MR,93-CA-1893-MR
PartiesKENTUCKY BOARD OF NURSING, Appellant v. Elaine WARD, Appellee.
CourtKentucky Court of Appeals

Nathan Goldman, Louisville, for appellant.

Irving I. Friedman, Friedman, Prizant & Yoffe, Louisville, for appellee.




The Kentucky Board of Nursing appeals from an order of the Jefferson Circuit Court which reversed the Board's order suspending Elaine Ward's license for one year and assessing costs and a $1,000 penalty. Because we find a lack of substantial evidence to support the action taken by the Board, we affirm the ruling of the circuit court.

Elaine Ward was employed at the Lyndon Lane Nursing Home on January 22, 1992, as a licensed practical nurse (LPN). Her duties consisted in part of caring for Mr. Clifford Quick, one of the patients. On that date, Ward observed Quick attempting to get out of his wheelchair. As she went to assist him, she was overheard by her co-workers to tell Quick, "If you don't sit down and be quiet, I will take you to your room and tie you in the bed and you won't be able to get up." Ward was also overheard saying to herself, outside the hearing of Mr. Quick, that he was "a silly old son of a bitch." Ward's remarks were reported by her co-workers to those in authority at the nursing home who, in turn, reported this "verbal abuse" to Adult Protective Services. An investigation ensued which resulted in the verbal abuse charge being "substantiated" and culminated in Ward's termination of employment two days later on January 24, 1992.

A hearing was subsequently held before the Board of Nursing on November 18, 1992. Following extensive findings of fact, the Board concluded that Ward's conduct constituted a violation of KRS 314.091(1)(c), (d) and (h). Ward petitioned the Jefferson Circuit Court for a review of the Board's ruling, and on August 4, 1993, the circuit court reversed the Board's decision, finding that there was not substantial evidence sufficient to justify the Board's decision. This appeal follows at the instance of the Board of Nursing.

The Board raises two issues on appeal: (1) that the Board's decision was supported by substantial evidence, and (2) that the circuit court exceeded its permissible scope of review. We find no error and affirm.

"The position of the circuit court in administrative matters is one of review, not of reinterpretation." Commonwealth, Department of Education v. Commonwealth, Kentucky Unemployment Insurance Commission, Ky.App., 798 S.W.2d 464, 467 (1990). The appellate (circuit) court is not free to consider new or additional evidence, or substitute its judgment as to the credibility of the witnesses and/or the weight of the evidence concerning questions of fact. Mill Street Church of Christ v. Hogan, Ky.App., 785 S.W.2d 263 (1990). Thus, if administrative findings of fact are based upon substantial evidence, then those findings are binding upon the appellate court. Commonwealth, Dept. of Education, supra. The only question remaining for the appellate court to address is "whether or not the agency applied the correct rule of law to the facts so found." Starks v. Kentucky Health Facilities, Ky.App., 684 S.W.2d 5, 6 (1984). If the ruling of the administrative agency is based on an incorrect view of the law, the reviewing court may substitute its judgment for that of the agency. Mill Street Church of Christ, supra, at 266.

"Judicial review of an administrative agency's action is concerned with the question of arbitrariness." Commonwealth, Transportation Cabinet v. Cornell, Ky.App., 796 S.W.2d 591, 594 (1990) (quoting American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Commission, Ky., 379 S.W.2d 450, 456 (1964)). In Crouch v. Police Merit Board, Ky., 773 S.W.2d 461, 464 (1988), the meaning of "arbitrariness" was clarified as follows: "By 'arbitrary' we mean clearly erroneous, and by 'clearly erroneous' we mean unsupported by substantial evidence." See also City of Louisville by Kuster v. Milligan, Ky., 798 S.W.2d 454, 458 (1990). Whether an agency's ruling is arbitrary can be determined by looking at three factors:

The court should first determine whether the agency acted within the constraints of its statutory powers or whether it exceeded them. [Cite omitted.] Second, the court should examine the agency's procedures to see if a party to be affected by an administrative order was afforded his procedural due process.... Finally, the reviewing court must determine whether the agency's action is supported by substantial evidence. [Cite omitted.] If any of these three tests are failed, the reviewing court may find that the agency's action was arbitrary.

Commonwealth, Transportation Cabinet v. Cornell, supra, (citing American Beauty Homes Corp., supra ).

With the background on the scope of judicial review before us, we turn to an examination of the circuit court's action and ruling. The Kentucky Board of Nursing charges the circuit court with making additional findings of fact and engaging in supposition to reach its decision. After a careful and studied review of the Board's findings of fact and the circuit court's opinion, we must disagree with the Board's position. While the circuit court may not have tracked the exact language used by the Board in reciting facts in its opinion, the failure to do so does not result in impermissible fact-finding outside the scope of review. Indeed, a close reading of the circuit court's opinion reveals that the court agreed with the Board's findings of fact and that Elaine Ward's conduct was inappropriate. Accepting the Board's findings of fact, the question to be addressed by the circuit court was whether the evidence was substantial enough to support the Board's conclusions of law and disciplinary order. The circuit court...

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