Koetting v. STATE BD. OF NURSING

• Decision Date: 06 July 2010
• Docket Number: No. WD 71766.,WD 71766.
• Citation: 314 S.W.3d 812
• Parties: Janice M. KOETTING, Appellant, v. STATE BOARD OF NURSING, Respondent.
• Court: Missouri Court of Appeals

314 S.W.3d 812

Janice M. KOETTING, Appellant, v. STATE BOARD OF NURSING, Respondent.

No. WD 71766.

Missouri Court of Appeals, Western District.

July 6, 2010.

Richard D. Watters, Margaret Scavotto, St. Louis, MO, for Appellant.

Chris Koster, Attorney General, Jonathan M. Hensley, Assistant Attorney General, Jefferson City, MO, for Respondent.

Before Division II: MARK D. PFEIFFER, Presiding Judge, and VICTOR C. HOWARD and ALOK AHUJA, Judges.

MARK D. PFEIFFER, Presiding Judge.

We examine this case on appeal to determine whether the Administrative Hearing Commission (AHC) had sufficient evidence to discipline Janice Koetting (Koetting) under section 335.066.2(1) RSMo.¹ In subjecting Koetting to such discipline, the AHC ruled in favor of the Missouri State Board of Nursing (Board). Koetting appealed to the Cole County Circuit Court (trial court), and the trial court affirmed the disciplinary decision of the AHC. Koetting timely appealed to this court and we affirm.

Summary of Facts

Koetting is licensed by the Missouri State Board of Nursing as a registered professional nurse (R.N.), and her license was current and active at all times relevant to this case. Koetting was employed as an R.N. at Cedar County Memorial Hospital (Cedar County) in El Dorado Springs, Missouri. Her duties included assessing patients, giving medications, giving guidance to aides, and assisting with patient care. The genesis of this case was a pattern of absenteeism beginning in December of 2003. Koetting was scheduled to work on December 15 and 16, 2003, but called in sick. Subsequently, Koetting was on the Cedar County nurses' schedule to work January 18, 2004, but was absent without explanation. The schedule further showed that Koetting was to work January 26-31, 2004, but called in sick for those six days. In February, Koetting's pattern of absences continued. She was scheduled to work February 3-7, 10, and 12-14, 2004, but was absent without explanation all nine of those days. In total, during a sixty-day period Koetting missed eighteen days of work.

Sue Hughes (Hughes), Director of Nurses for Cedar County, became aware that Koetting's absences were related to a struggle with alcohol. Koetting met with Hughes, and they discussed Koetting's problems with alcohol. Koetting also met with Julia Phillips (Phillips), Assistant Director of Nurses for Cedar County, and discussed this pattern of absenteeism. The result of their discussion was that Koetting was granted an unpaid leave of absence, with the understanding that she was to seek treatment for her alcohol abuse.

After the leave of absence and before Koetting was allowed to come back to work at Cedar County, Hughes drafted a "Return to Work Agreement" with direct input from hospital administration on the restrictions and requirements to be imposed. On March 15, 2004, Hughes met with Koetting, they read the agreement together, and Koetting agreed to the terms and signed the document, which stated, in pertinent part:

Cedar County Memorial Hospital granted you unpaid leave of absence due to inability to meet the requirements of the job i.e. attendance due to alcohol impairment.

(Emphasis added.)²

The agreement also required Koetting to submit to alcohol and drug testing prior to returning to work and randomly as requested by the hospital, to report to the emergency room if she called in to miss work for any reason, and to submit to an alcohol and drug screening if such a step was indicated by her appearance, demeanor, or conduct.

Three days later, Koetting was scheduled to work on March 18, 2004, and did not call or show up at the hospital. Koetting's friend and nursing colleague, Lerri Burchett (Burchett), went to Koetting's home to check on Koetting on March 18, 2004. Koetting told Burchett that she had been drinking the night before and was tired and depressed. Finding Koetting in the condition that she found her, Burchett believed it was necessary to take Koetting to an alcohol treatment facility, and Koetting agreed.

Cedar County then terminated Koetting's employment and reported her termination and the reasons for her termination to the Board.

The Board filed a complaint alleging that Koetting's use of alcohol was to such extent that it impaired her ability to perform the work and duties of a professional nurse. The Board asserted that Koetting's nursing license was therefore subject to discipline under sections 335.066.2(1), (5) and (12). The AHC entered an order granting partial summary determination for Koetting, finding no grounds for discipline under section 335.066.2(12). A hearing was held before the AHC on April 11, 2008. On December 23, 2008, the AHC entered its final decision, finding Koetting subject to discipline under section 335.066.2(1) but not under section 335.066.2(5). Pursuant to this ruling, the Board placed Koetting's nursing license on probation for one year.³ Koetting appealed to the Cole County Circuit Court (trial court), and the trial court affirmed the disciplinary decision of the AHC. This timely appeal follows.

Standard of Review

We review the decision of the AHC and not the trial court's judgment. Bird v. Mo. Bd. of Architects, Prof'l Eng'rs, Prof'l Land Surveyors & Landscape Architects, 259 S.W.3d 516, 520 (Mo. banc 2008). We examine the decision to determine if, upon due consideration to the whole record, there is sufficient competent and substantial evidence to support the decision. Albanna v. State Bd. of Registration for Healing Arts, 293 S.W.3d 423, 428 (Mo. banc 2009) (citing Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003)). We look to see if the decision of the AHC is "the rare case when the award is contrary to the overwhelming weight of the evidence." Hampton, 121 S.W.3d at 223. We do not review the evidence in the light most favorable to the decision. Id. However, the AHC "`is the sole judge of the credibility of witnesses and the weight and value to give to the evidence.'" Clayton v. Langco Tool & Plastics, Inc., 221 S.W.3d 490, 493 (Mo. App. S.D.2007) (quoting Blackwell v. Puritan-Bennett Corp., 901 S.W.2d 81, 85 (Mo. App. E.D.1995)). Our review of issues of law is de novo. State Bd. of Registration for Healing Arts v. McDonagh, 123 S.W.3d 146, 152 (Mo. banc 2003).

Sufficiency of the Evidence and Grounds for Discipline Under Section 335.066.2(1)

In her first two points on appeal, Koetting argues (1) that the AHC's decision was not supported by competent and substantial evidence, because she argues there was no evidence that Koetting's absences from work were caused by alcohol use; and (2) even if the absences were alcohol related, those absences did not impair Koetting's ability to perform the work of a nurse and consequently were not subject to discipline under section 335.066.2(1).

The issue is whether there was competent and substantial evidence to support discipline under section 335.066.2(1), which states, in pertinent part:

The board may cause a complaint to be filed with the administrative hearing commission ... against any holder of any ... license ... for any one or any combination of the following causes: (1) Use or unlawful possession of any ... alcoholic beverage to an extent that such use impairs a person's ability to perform the work of any profession licensed or regulated by sections 335.011 to 335.096.

Koetting maintains that the "Return to Work Agreement" is the only evidence indicating that Koetting's alcohol use was an impairment to her ability to come to work when scheduled or otherwise impacted her ability to work. It was not disputed at the AHC hearing, at the trial, or in this appeal that Koetting signed the "Return to Work Agreement," which expresses that her ability to perform her work was impaired, "i.e. attendance due to alcohol impairment." The agreement also states that Koetting was granted a leave of absence in order for her to seek and receive treatment and counseling, presumably for such alcohol impairment. Although its admission was not objected to at the AHC hearing, Koetting now asserts this agreement was given undue weight by the AHC because it was not a voluntary admission.

In arguing that the document is not credible evidence, Koetting cites Around The World Importing, Inc. v. Mercantile Trust Co., N.A., for the requirements for admitting an admission by a party-opponent, specifically "a conscious or voluntary acknowledgment by a party-opponent of the existence of certain facts." 795 S.W.2d 85, 89 (Mo.App. E.D.1990). Koetting cites this standard in arguing that the "Return to Work Agreement" is an involuntary admission that is not credible evidence, because Koetting's only options were to sign it or to lose her job. However, the issue of admissibility of the "Return to Work Agreement" has not been preserved and is not before this court. That argument was waived when no objection to the admission of the "Return to Work Agreement" was made at the AHC hearing. In fact, at the oral argument of this appeal, Koetting's counsel stated on numerous occasions that Koetting was not contesting the admissibility of the "Return to Work Agreement." Nonetheless, given Koetting's argument as to the lack of credibility of the allegedly involuntarily signed agreement, it is not clear on appeal whether Koetting is asking us to consider the issue of admissibility under a plain error review or is trying to use the standard for admissibility to call into question the reliability and credibility of Koetting's admission.

Even if we consider the argument on admissibility, Missouri courts have held the "conscious or voluntary acknowledgement" element of this rule to be met in circumstances where there was dispute as to whether the admission was voluntary or coerced. See Teel v. May Department Stores Co., 352 Mo. 127, 176 S.W.2d 440, 445 (1943) (conflicting testimony concerning the circumstances under which the statement was signed); Ogle v. Todd, 514 S.W.2d 38, 41 (Mo.App.1974) (...