Helen B. Egan VS Marianne Sullivan, Administrator, Office of Unemployment Insurance and Hospital Service District No. 1 of Tangipahoa Parish d/b/a North Oaks Medical Center

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2012 CA 3741 HELEN B EGAN VERSUS MARIANNE SULLIVAN ADMINISTRATOR OFFICE OF UNEMPLOYMENT INSURANCE HOSPITAL SERVICE DISTRICT NO 1 OF TANGIPAHOA PARISH DB A NORTH OAKS MEDICAL CENTER Judgment Rendered E 21 2 On Appeal from the 21 st Judicial District Court In and for the Parish of Tangipahoa State of Louisiana Trial Court No 2011 0001960 r Honorable Thomas J Hammond Hogan LA H Michael Bush New Orleans LA Jr Douglas Hughes Judge Presiding Attorney for Plaintiff Appellant Helen B Egan Attorney for Defendant Appellee Hospital Service District No 1 of Tangipahoa Parish DB ANorth Oaks Medical Center Cynthia T Batiste Baton Rouge LA Attorney for Defendant Appellee Marianne Sullivan Administrator Louisiana Workforce Commission BEFORE WHIPPLE McCLENDON AND HIGGINBOTHAM JJ HIGGINBOTHAM J Plaintiff appeals the district court judgment affirming the decision of the s Board of Review pertaining to the determination that she was not entitled to receive unemployment compe bene beca her resignation was based sation bts se on misconduct For the foilowing reasons we affirm FACTS AND PROCEDIIRAL HISTORY Plaintiff Helen B Egan was employed by North Oaks Medical Center North Oaks as a medical transcriptionist from May 30 1989 until September 20 2010 Egan employment with North Oaks ended because North Oaks determined s that she had violated the Health Insurance Portability Act HIPPA Egan was allowed to resign from her employment rather than be discharged Subsequently Egan filed a claim for unemployment ber with the Louisiana Workforce efits Commission which determined she was disqualified from receiving benefits because she resigned from emplQyment in lieu ofbeing discharged far misconduct Egan appealed the finding to the appeals tribunal and after a telephone hearing on February 17 20ll the administrative law judge AL issued her findings of fact and decision affirming the agency decision Egan then appealed to the Board of s Review which again affirmed the agency decision s Egan filed a petition for judicial review in the 21st 7udicial District Court and the district court sjudgment affirming the Board decision is the subject of this appeal Egan cites as her only s assignment of error that there is no evidence of inYentional wrongdoing and the decision of the district court is wrong as a matter of law DISCUSSION Louisiana Revised Statuies 23 provides that an individual is 2 1601 disqualified for benefits if he is discharged for misconduct connected with his employment Further this provision defines misconduct to mean mismanagement of a position of employment by action or inaction neglect that 2 places in jeopardy the lives c property of others dishonesty wrongdoing r violation of a law or violation of a policy or rule adopted to insure orderly work or the safety of others When ara eniployer seeks to deny unemployment benefits because of employee misconduct the burden of proof is on the employer to establish such misconduct Fontenet v Cypress Bayou Casino 06 La 0300 App lst Cir 6 964 So 035 103 8l07 2d his 1i court held in Fontenet 964 2d So at 1038 that the amendment of La R 23 41 S 1601 2in 1990 to include a statutory definition of misconduct supplanted the prior jurisprudential standard of misconduct that required an intentional breach of the employer rules or s policies or a wanton disregard of the employer interest s Further upon appeal of cases arising under the Louisiana Employment Security Law the scope of appellate review is limited to determining whether the facts are supported by sufficient and competent evidence and in the absence of fraud whether the facts as a matter of law justify the action taken La R S B 1634 23 Fontenet 964 So at 1038 Judicial review of the findings of the 2d Board of Review does not permit the weighing of evidence drawing of inferences reevaluation of evidence or substituting the views of the court for that of the Board of Review as to the correctness of the facts presented Gonzales Home Health Care L v Felder 0 La App 1 st Cir 9994 So 687 690 C 0798 08 26 2d 91 writ not considered 08 La 1 998 So 73Q 2568 09 9 2d In administrative hearings the usual rules of evidence do not apply and hearsay may be admissible in accordance with regulations prescribed by the Board La R 23 CEG Welding Supply Inc v Moore 31 La App 2d Cir S 1631 167 98 14 12 723 So 524 526 Louisiana Revised Statute 23 provides in 2d 1631 part The manner in which appealed claims shall be presented and the conduct of hearings and appeals shall be in accordance with regulations prescribed by the board of review for determining the 3 rights of the parties whether or not such regulations conform to the usual rules of evidence and other techalical rul of procedure s s oyment Egan empl with North vaks ended because she allegedly violated HIPPA Clancy Edwards who worked in human resources stated during the phone hearing that an employee came to her and said that there was some informatiAn giverz to her by gan that sha did n have a need to know t According to the record Egan while transcribin showed an ultra picture of sound a co to another co revealing that she had a miscarriage Egan then worker worker took the information to the team leader and told her and another person in the room Egan admitted she took information about the co to the team leader worker and said you can do whatever you want with this Edwards stated that Egan told her she knew what she did was wrong that she had been trained in not doing so and that she was very apologetic far it Egam stated she understood the policy against sharing confidential medical infortnation but also stated this is the way ve we always conducted at Egan never offered her reason for sharing the information with her superipr In concluding that Egan was not entitled to benefits the ALJ made the following finding Egan was a medical transcriptioni5t and the former employer s policy prohibits the medical transcriptionist from disclosing or discussing the content of a patient medical records Egan was s transcribing a co medical records and shared what she s worker discovered with the acting supervisor and at least one other co warker from the department Egan admitted to telling her acting supervisor and co about warkers another co smedical information warker In her only assignment of error Egan contends that the trial court was in error because there was no finding of intentional wrongdoing However because the statutory definition of misconduct no longer contains the requirement of an intentional breach of the employer rules the Board did not have to find s 4 s Egan behavior was intentional to be considered rnisconducY warranting the denial of benefits See Fontenet 964 Sm 2d at 1 1039 338 Egan contends that there was no competent evidence in the record of disqualifying misconduct because the only testimony came from Clancy Edwards who testified about a conversation with an employee whe came forward hearsay Edwards was not present at the time of he incident in question In support of her position Egan cites Jackson v Louisiana Board of Review 41 La App 2d 862 Cir 1 948 o 327 331 which states hearsay evidence is not competent 07 10 2d to overcome an employee direct contradictory testimony Emphasis added s Egan admitted that she brought the information to the acting supervisor was aware of the policy and had received a prior warning After review ofthe record we find the tesrimony of Egan was not contradicto Edward testimony According yto s to Egan own testimony she violated the rules by discussing information that her s workers co did not have the need to know She never refuted Edward testimony s about her behavior only that it was not a violation Therefore we find no merit to this argument CONCLUSION Accordingly based on our careful review of the record we find that the factual findings of the ALJ and the Board of Review are supported by sufficient and competent evidence Moreover as a matter of law those findings justify the Board of Review decision that Egan was discharged for misconduct within the s meaning of La R 23 See La R 23 Therefore the January S 1601 2 S 1634 B 30 2012 judgment of the district court affirming the Board of Review decision s is hereby affirmed at appellant costs s AFFIRMED 5

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