Alice Louise Klein, Respondent, v. Missouri Department of Health and Senior Services, Appellant

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Alice Louise Klein, Respondent, v. Missouri Department of Health and Senior Services, Appellant Case Number: WD66195 Handdown Date: 09/26/2006 Appeal From: Circuit Court of Cooper County, Hon. Robert Lawrence Koffman, Judge Counsel for Appellant: Sharon K. Euler and William S. Vanderpool Counsel for Respondent: Daniel P. Card, II and Jon E. Beetem Opinion Summary: Alice Klein appeals the decision of the Missouri Department of Health and Senior Services (DHSS) placing her name on the employee disqualification list (EDL) for a period of one year pursuant to section 198.070, RSMo 2000. DHSS found that Ms. Klein, while employed in long term care facility, recklessly abused a resident. In her two points on appeal, Ms. Klein claims that DHSS erred in ordering that her name be placed on the EDL because DHSS improperly defined the qualifying injury supporting its finding of abuse, and the decision to place her name on the EDL was not supported by competent and substantial evidence on the whole record. REVERSED. Division Three holds: Where no evidence was presented that the resident suffered physical damage or impairment to her body or a highly unpleasant mental reaction, the record lacked competent and substantial evidence that Ms. Klein inflicted physical, sexual, or emotional injury on the resident. DHSS, therefore, erroneously determined that Ms. Klein recklessly abused the resident and improperly placed her name on the EDL. Citation:

Opinion Author: Robert G. Ulrich, Judge Opinion Vote: REVERSED. Ellis, P.J. and Holliger, J. concur. Opinion: Opinion modified by Court's own motion on October 26, 2006. This substitution does not constitute a new opinion. Alice Klein appeals the decision of the Missouri Department of Health and Senior Services (DHSS) placing her name on the employee disqualification list (EDL) for a period of one year pursuant to section 198.070.(FN1) DHSS found that Ms. Klein, while employed in long term care facility, recklessly abused a resident. In her two points on appeal, Ms. Klein claims that DHSS erred in ordering that her name be placed on the EDL because DHSS improperly defined the qualifying injury supporting its finding of abuse, and the decision to place her name on the EDL was not supported by competent and substantial evidence on the whole record. The decision of DHSS is reversed. Facts Alice Klein is a certified nurse's aid and a certified medication technician. On May 27, 2003, she was employed as activity director at Lakeview Health and Rehabilitation Center, a nursing home facility in Boonville. On that day, she drove three residents to various doctors' appointments at University Hospital in Columbia. One of the residents was A.V., an eighty-five year old woman in a wheelchair. The next day, DHSS received a hotline call regarding an incident in the hospital parking garage the day before. The caller reported seeing a woman yell at and hit an elderly lady in a wheelchair while trying to put her in an unmarked, white van. The caller heard the woman call the elderly woman by her name and noted the license plate number on the van. With this information, DHSS determined that the complaint involved Ms. Klein and A.V. Following its investigation of the incident, DHSS sent Ms. Klein a notice of violation informing her of its intention to place her name on the EDL for a period of one year pursuant to section 198.070. The EDL is a list of employees who have recklessly, knowingly, or purposely abused or neglected a resident. Section 198.070.12. The EDL is provided to nursing homes and other care providers and those providers shall not knowingly employ any person listed on the EDL. Section 660.315.11 & .12, RSMo Cum. Supp. 2003. DHSS also sent Ms. Klein a notice of finding informing her that a finding that she abused a resident of a nursing facility would also be added to the Nurse Aide Registry. Under federal law, 42 CFR Section 483.156 (2005), a state must establish and maintain a registry of nurses aides. A finding on the registry

of abuse, neglect, mistreatment of residents, or misappropriation of their property bars future employment in nursing home facilities that receive Medicare or Medicaid funds. 42 CFR Section 483.1, .13, and .156 (2005). Ms. Klein timely requested a hearing on the matter. The hearing was held before a DHSS Deputy Director on March 4, 2004, pursuant to section 660.315.5, RSMo Cum. Supp. 2003. DHSS presented the testimony of two eyewitnesses who observed Ms. Klein and A.V. in the hospital parking garage. Kerry McDonald, a licensed practical nurse, testified that she saw Ms. Klein attempting to lower the wheelchair lift on the van and A.V., who appeared upset, trying to get away from Ms. Klein. She testified that A.V. started rolling her wheelchair away from Ms. Klein toward the back of the van and out into a traffic lane. According to Ms. McDonald, Ms. Klein yelled at A.V., "[A.V.], I said get back here. [A.V.], I can't stand you anyway." Ms. Klein then went to get A.V. and hit her on the crown of the head with her open hand. Marcus McDonald, Ms. McDonald's husband, was with his wife in the parking garage and also testified. He stated that he saw Ms. Klein hit A.V. on the head four or five times and then A.V., who appeared upset, attempt to "get away" from Ms. Klein by rolling her wheelchair toward the back of the van. Ms. Klein also testified at the hearing on her own behalf. She stated that at the nursing home before the trip to Columbia, A.V. resisted being loaded into the van, waving her arms and reaching back at her. In the hospital parking garage after the appointments, Ms. Klein attempted to lower the lift attached to the van when A.V. turned around in her wheelchair and rolled to the end of the van. Ms. Klein testified that she told A.V. that she had to come back, pushed the wheelchair back to the side of the van, and locked the brakes. A.V. released the wheel locks and again rolled to the back of the van. Ms. Klein said loudly, "[A.V.], you're going to get hit." Ms. Klein testified that she attempted to retrieve A.V. again, but A.V. resisted. A.V. put her feet flat on the concrete floor and began swinging her arms above her head. Ms. Klein attempted to subdue A.V. by holding her chair with one hand and holding A.V.'s arms down with her other hand. A.V. finally calmed when Ms. Klein told her they were going to go home and eat supper. Ms. Klein was then able to put A.V. in the van, pick up the other residents at the front door, and return to the nursing home. Following the hearing, the DHSS Deputy Director issued his decision and order determining that Ms. Klein's name should be placed on the EDL based on her reckless abuse of A.V. Specifically, the Deputy Director found, "[Ms. Klein] was reckless in her treatment of [A.V.], and her recklessness resulted in the infliction of physical injury to resident." The Deputy Director also found, "[Ms. Klein's] physical actions against, and scolding of, [A.V.], as witnessed by the McDonalds, were clearly wrongs perpetrated against the rights and person of [A.V.] The eyewitnesses' observation that [A.V.] was upset by [Ms. Klein's] actions is further demonstrative evidence of abuse."

Ms. Klein, thereafter, sought judicial review of the DHSS decision in the Cooper County Circuit Court as provided under Chapter 536, RSMo. The court reversed the DHSS decision finding that it was not supported by competent evidence upon the whole record. This appeal followed. Standard of Review Article V, section 18 of the Missouri Constitution provides for judicial review of an administrative agency action to determine whether the action is authorized by law and, in cases in which a hearing is required by law, whether the action is supported by competent and substantial evidence upon the whole record. Consistent with this standard, section 536.140.2, RSMo Cum. Supp. 2005, provides for appellate review of the administrative ruling, not the circuit court's judgment, to determine whether the administrative action: (1)Is in violation of constitutional provisions; (2)Is in excess of the statutory authority or jurisdiction of the agency; (3)Is unsupported by competent and substantial evidence upon the whole record; (4)Is, for any other reason, unauthorized by law; (5)Is made upon unlawful procedure or without a fair trial; (6)Is arbitrary, capricious or unreasonable; (7)Involves an abuse of discretion. Lagud v. Kansas City Bd. of Police Comm'rs, 136 S.W.3d 786, 791 (Mo. banc 2004); Johnson v. Mo. Dep't of Health & Senior Servs., 174 S.W.3d 568, 577 (Mo. App. W.D. 2005). In reviewing an agency's decision, the appellate court must examine the whole record to determine if it contains sufficient competent and substantial evidence to support the decision. Lagud, 136 S.W.3d at 791 (quoting Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003); Johnson, 174 S.W.3d at 577-78. Such standard is not met in the rare case when the agency's decision is contrary to the overwhelming weight of the evidence. Lagud, 136 S.W.3d at 791 (quoting Hampton, 121 S.W.3d at

223). The appellate court will defer to the agency's factual findings, however, where the agency's decision is based upon an interpretation, application, or conclusion of law, the decision is reviewed de novo. Miller v. Dunn, 184 S.W.3d 122, 124-25 (Mo. App. E.D. 2006). Employee Disqualification List Section 198.070.12 provided:(FN2) The department shall maintain the employee disqualification list and place on the employee disqualification list the names of any persons who have been finally determined by the department pursuant to section 660.315, RSMo, to have recklessly, knowingly or purposely abused or neglected a resident while employed in any facility. No person, corporation or association who receives the EDL pursuant to section 660.315.11, RSMo Cum. Supp. 2003, "shall knowingly employ any person who is on the employee disqualification list." Section 660.315.12, RSMo Cum. Supp. 2003. Ms. Klein does not dispute that Lakeview Health and Rehabilitation Center was a "facility" for purposes of section 198.070.12 or that A.V. was a "resident" of the facility. She does, however, assert that DHSS's finding that she recklessly abused A.V. erroneously declared and applied the law and was not supported by competent and substantial evidence on the whole record. The primary rule of statutory construction is to ascertain the intent of the legislature from the language used and to give effect to that intent if possible. State ex rel. Nixon v. QuikTrip Corp., 133 S.W.3d 33, 37 (Mo. banc 2004) (quoting Wolff Shoe Co. v. Dir. of Revenue, 762 S.W.2d 29, 31 (Mo. banc 1988)). Although specifically defined in the 2003 amendment of section 198.070, "recklessly" was not defined in the prior version at issue here. Thus, the definition of "recklessly" provided in section 562.016.4 was employed to determine whether to place a person's name on the EDL. Johnson, 174 S.W.3d at 581. That statute provides: A person "acts recklessly" or is reckless when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. Section 562.016.4, RSMo. Cum. Supp. 2005. The term "abuse" as used in section 198.070.12 is defined in section 198.006(1), RSMo Cum. Supp. 2005, as "the infliction of physical, sexual, or emotional injury or harm." The terms "injury" and "harm" are in the disjunctive. "The disjunctive 'or' in its ordinary sense marks an alternative generally corresponding to the term 'either.'" State v. Graham,

149 S.W.3d 465, 467 (Mo. App. E.D. 2004). In its decision, DHSS states that Black's Law Dictionary defines "injury" as "any wrong or damage done to another, either in his person, rights, reputation or property" and defines "wrong" as "[a] violation of the legal rights of another." It then found that "[Ms. Klein's] physical actions against, and scolding of, [A.V.], as witnessed by the McDonalds, were clearly wrongs perpetrated against the rights and person of [A.V.]" DHSS, however, erroneously defined and applied the term "injury" within the definition of "abuse." The terms "injury" and "harm" in section 198.006(1), RSMo Cum. Supp. 2005, do not stand alone as interpreted by DHSS. Instead, the terms "physical," "sexual," and "emotional," also in the disjunctive, all modify "injury" and "harm." DHSS's definition of "injury" disregarded the modifying words "physical, sexual or emotional." Statutory construction requires that every word of the statute be given meaning and effect, and no words are treated as surplusage unless necessary to avoid discrepancies or inconsistencies. Wallace v. Grasso, 119 S.W.3d 567, 579 (Mo. App. E.D. 2003). "Courts will reject an interpretation of a statute that requires ignoring the very words of the statute." State ex rel. Womack v. Rolf, 173 S.W.3d 634, 638 (Mo. banc 2005). Thus, abuse as defined in section 198.006(1), RSMo Cum. Supp. 2005, is the infliction of physical injury or harm, emotional injury or harm, or sexual injury or harm. Undisputedly, no evidence was offered of sexual injury or harm. The question, therefore, is whether Ms. Klein inflicted physical injury or harm or emotional injury or harm. Section 198.006 does not define the term "physical injury." If a word in a statute is not defined, it is given its plain and ordinary meaning as found in the dictionary. BHA Group Holding, Inc. v. Pendergast, 173 S.W.3d 373, 379 (Mo. App. W.D. 2005)(quoting Asbury v. Lombardi, 846 S.W.2d 196, 201 (Mo. banc 1993)). Black's Law Dictionary directs one to the definition of "bodily injury" in defining "physical injury." Black's Law Dictionary 1184 (8th ed. 2004). According to the dictionary, "bodily injury" is "[p]hysical damage to a person's body." Id. at 801. "Physical harm" is defined as "[a]ny physical impairment of land, chattels, or the human body." Id. at 734. In this case, DHSS presented the testimony of two eyewitnesses. They both testified that they saw Ms. Klein hit A.V. on the top of the head with her open hand while trying to lower the wheelchair lift on the van in the hospital parking garage. One of the witnesses also stated that she heard Ms. Klein tell A.V., "I can't stand you anyway." No evidence of physical injury or harm to A.V. was presented, however. Two days after the incident, the DHSS investigator saw no bruises or blood on A.V. and no evidence that she had been physically injured.(FN3) While such conduct by Ms. Klein was certainly inappropriate and perhaps even subject to disciplinary response, the evidence on the whole record does not establish abuse for purposes of placing her name on the EDL where no showing was made that A.V. suffered physical damage or impairment to her body.

Such holding is in harmony with child abuse cases. The definition of abuse in section 198.070.12 is essentially the same as that in the Missouri child abuse law. Stiffelman v. Abrams, 655 S.W.2d 522, 533 (Mo. banc 1983). Section 210.110(1), RSMo Cum. Supp. 2005, defines abuse as "any physical injury, sexual abuse, or emotional abuse inflicted on a child other than by accidental means by those responsible for the child's care, custody, and control, except that discipline including spanking, administered in a reasonable manner, shall not be construed to be abuse." In discussing the meaning of physical injury as used in section 198.006(1) and section 210.110(1), the Missouri Supreme Court said, "There is probably little dispute that the term 'physical injury' is one of common understanding. It would include such things as bruises, lacerations, abrasions, welts, choke marks, burns, bites, and fractures." Stiffelman, 655 S.W.2d at 533 (quoting Kathryn Marie Krause, Child Abuse and Neglect Reporting Legislation in Missouri, 42 Mo.L.Rev. 207, 244 (1977)). No abuse has been found in cases where no evidence of physical harm is presented. See e.g. Rombach v. Rombach, 867 S.W.2d 500, 502-04 (Mo. banc 1993)(where evidence was presented that Husband called his daughter a "fat little pig"; poured a glass of water on one of his sons; resorted to grabbing, pushing, shoving, and talking harshly when he attempted to get the children into his car; and aimed his car at one son and began to back up in order to convey the impression he would run the boy over if he did not get in, evidence was not sufficient to raise the issues of child abuse or neglect for the appointment of a guardian ad litem); Holmes v. Holmes, 878 S.W.2d 906, 911-12 (Mo. App. E.D. 1994) (where evidence was presented that husband pushed son and son fell down two or three stairs when son attempted to intervene during an attack on wife by husband; daughter was hit in the head by a swinging door while husband chased her during an argument; and husband hit daughter with a belt while disciplining her; but where no showing of harm to the children was made, husband's conduct did not constitute child abuse mandating the appointment of a guardian ad litem). As in those cases, no evidence was presented in this case that A.V. suffered physical damage to her body. Next, the DHSS Deputy Director found, "The eyewitnesses' observation that [A.V.] was upset by [Ms. Klein's] actions is further demonstrative evidence of abuse." This finding is unclear, however, regarding whether the Deputy Director meant that A.V. suffered physical or emotional injury. Regardless, the record is devoid of competent and substantial evidence of emotional injury or harm. Section 198.006 does not define the term "emotional injury or harm." Black's Law Dictionary refers to the term "emotional distress" in defining "emotional harm." Black's Law Dictionary 563 (8th ed. 2004). "Emotional distress" is "[a] highly unpleasant mental reaction (such as anguish, grief, fright, humiliation, or fury) that results from another person's conduct; emotional pain and suffering." Id. While the eyewitnesses testified that A.V. appeared "upset" in the parking garage, they did not elaborate beyond that general description. Without more, it cannot be said that A.V. suffered a "highly unpleasant mental reaction."

The record as a whole lacked competent and substantial evidence that Ms. Klein inflicted physical, sexual, or emotional injury on A.V. DHSS, therefore, erroneously determined that Ms. Klein recklessly abused A.V. and improperly placed her name on the EDL. The decision of the DHSS is reversed. Footnotes: FN1.All statutory references are to RSMo 2000 unless otherwise indicated. FN2.Section 198.070 was amended in 2003 becoming effective on August 28, 2003. Subsection 12 was moved to subsection 13 and now provides: The department shall maintain the employee disqualification list and place on the employee disqualification list the names of any persons who are or have been employed in any facility and who have been finally determined by the department pursuant to section 660.315, RSMo, to have knowingly or recklessly abused or neglected a resident. For purposes of this section only, "knowingly" and "recklessly" shall have the meanings that are ascribed to them in this section. A person acts "knowingly" with respect to the person's conduct when a reasonable person should be aware of the result caused by his or her conduct. A person acts "recklessly" when the person consciously disregards a substantial and unjustifiable risk that the person's conduct will result in serious physical injury and such disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation. Section 198.070.13, RSMo Cum. Supp. 2005. FN3.During her investigation of the incident, the investigator talked to A.V. A.V. told her that no staff member had ever hurt her and that she could not recall the trip to the doctor. The investigator also indicated in her report that the staff assessed A.V. as confused. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.