J. Seibert Thim, R.N. v. BPOA, State Bd. of Nursing ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jamie Seibert Thim, R.N., :
Petitioner :
:
v. : No. 916 C.D. 2018
: ARGUED: June 6, 2019
Bureau of Professional and :
Occupational Affairs, State :
Board of Nursing, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: July 24, 2019
Jamie Seibert Thim (Licensee) petitions for review of a July 2, 2018 final
adjudication and order of the State Board of Nursing (Board), imposing a three-year
term of probation and placing conditions on her ability to practice nursing. Licensee
argues on appeal that the Board’s findings of fact are not supported by substantial
evidence, the Pennsylvania Department of State (Department) failed to demonstrate
Licensee violated The Professional Nursing Law (Nursing Law),1 and the
Department’s expert was not qualified to render the opinion stated. After thorough
review, we reverse.
1
Act of May 22, 1951, P.L. 317, as amended, 63 P.S. §§ 211–225.5.
Background
Licensee is a registered nurse licensed to practice in the Commonwealth of
Pennsylvania. Notes of Testimony (N.T.), 8/21/17, at 149. She carries a school
nurse certification and is employed as a nurse coordinator in the Bensalem Township
School District (District). Id. at 26, 149. In June 2016, Licensee was arrested for
driving under the influence (DUI). Id. at 172. Following that arrest, she successfully
completed an Accelerated Rehabilitative Disposition (ARD)2 program. Id. at 175.
As a result of Licensee’s DUI, the Department issued an order compelling
Licensee to submit to a mental and physical examination by board-certified
psychiatrist Dr. Pogos Voskanian for the purpose of determining whether Licensee
was “unable to practice professional nursing with reasonable skill and safety by
reason of mental or physical illness or condition or dependence upon alcohol . . . .”3
N.T., 8/21/17, Ex. C-7 at 1. To that end, Dr. Voskanian met with Licensee on
January 23, 2017 for approximately four and one-half hours. Id., Ex. C-2 at 1. He
further reviewed Licensee’s medical records and a character reference from the
District. Id.
Dr. Voskanian’s written report indicated Licensee had a history of depression
which began with the death of her brother at age 23 following a 12-year battle with
2
ARD is a program whereby, upon successful completion of the program’s requirements,
an offender’s record will be expunged. See Pa.R.Crim.P. Chapter 3.
3
Section 14(a) of the Nursing Law relevantly provides that the Board may refuse, suspend,
or revoke a nursing license if it finds that the licensee is unable to practice nursing with reasonable
skill and safety to patients by reason of a physiological or psychological dependence upon alcohol.
63 P.S. § 224(a).
2
cancer. Id. at 3, 7. Licensee was 19 at the time.4 Id. at 3. She did not treat her
depression with medication but began to intermittently binge drink “to cope with her
emotions.” Id. at 7. Dr. Voskanian noted that at age 22 Licensee dated a gentleman
who tended bar at the restaurant she managed.5 Id. at 3. This individual would
consume three or four beers a night three or four nights per week. Id. The
relationship ended when he enlisted in the Army. Id.
Licensee experienced no significant symptoms of depression until after the
birth of her third child in 2014. Id. at 7. Her primary care physician prescribed an
antidepressant, which has been effective in treating her depression. Id. at 8.
However, due to marital problems which began around this time, Licensee’s alcohol
consumption increased from one or two glasses two or three days a week to two or
three glasses per night four days a week. Id. at 10, 16.
Licensee admitted getting “real drunk” at a party on June 19, 2016, after which
she hit a parked car with her vehicle. Id. Licensee’s DUI charge stemmed from that
incident. Id. Licensee advised Dr. Voskanian of two occasions after her DUI during
which she consumed alcohol – once on vacation at the beach and once at Christmas.
Id. Licensee related that she and her husband have experienced marital difficulties;
however, they are engaged in therapy and their relationship is “much better”
following her DUI. Id. at 4.
Subsequent to his January 23, 2017 interview with Licensee, Dr. Voskanian
received medical records from Licensee’s primary care physician that indicated
Licensee was treated in an emergency department in New York after consuming
4
Licensee was 39 years old on the date of Dr. Voskanian’s evaluation. N.T., 8/21/17, Ex.
C-2 at 2.
5
Licensee testified she was 20 at the time of this relationship. N.T., 8/21/17, at 183.
3
alcohol in a bar and losing consciousness. Id. at 14. Dr. Voskanian contacted
Licensee to discuss the incident, which she had not disclosed during the interview.
Id. Licensee advised she had consumed two or three drinks but suspected they were
laced with another substance. Id.
Dr. Voskanian’s evaluation of Licensee and analysis of her medical records
led him to conclude that Licensee met the criteria for diagnosis of depression and
alcohol use disorder. Id. at 16. Dr. Voskanian did not identify those criteria in his
report. He opined that, in order for Licensee to continue practicing her profession
safely, she would need to engage in monitoring through the Professional Health
Monitoring Program (PHMP).6 Id. at 17. Dr. Voskanian’s opinion was expressed
to a reasonable degree of medical certainty. Id.
On May 5, 2017, the Department issued Licensee a one-count Order to Show
Cause (Order) why her license should not be suspended, revoked, or otherwise
restricted under Section 14(a) of the Nursing Law. Id., Ex. C-4 at 2. The Order
directed Licensee to respond to the charge by filing a written answer within 30 days.
Id. at 4. Licensee filed an answer denying the allegations and arguing that her past
“derelictions” were not relevant to her present ability to perform nursing duties as
required. Id., Ex. C-5 at 2.
A hearing before a Hearing Examiner was conducted on August 21, 2017.
The Department presented the testimony of Dr. Voskanian. Licensee testified on
her own behalf and presented the testimony of several character witnesses.
6
The PHMP of the Bureau of Professional and Occupational Affairs (BPOA) assists
professionals suffering from a mental or physical disorder, such as substance abuse, in obtaining
treatment and monitoring to ensure they can safely practice their licensed professions.
Pennsylvania Department of State Professional Health Monitoring Programs,
https://www.dos.pa.gov/ProfessionalLicensing/OtherServices/ProfessionaHealthMonitoringProg
rams/Pages/default.aspx (last visited July 22, 2019).
4
The parties stipulated to Dr. Voskanian’s expertise as a board-certified
psychiatrist. Id. at 45. Dr. Voskanian testified that the bulk of his practice from
2000 to the present is in the area of substance dependence, rehabilitation, and
detoxification. Id. at 54. During that time, he has evaluated thousands of patients
for drug and alcohol dependency. Id. On the basis of this testimony, the Hearing
Examiner accepted, without objection, Dr. Voskanian as an expert in psychiatry,
including the diagnosis and treatment of individuals suffering from drug and alcohol
dependency. Id. at 54.
Dr. Voskanian testified that Licensee’s depression diagnosis was based on her
medical records which indicated a long history of chronic depression for which she
had been prescribed medication. Id. at 58-59. Dr. Voskanian felt the dosage
prescribed for Licensee for this condition was “much higher than average,” although
he later acknowledged it was within the standard of care for her medical condition.
Id. at 59, 85. While Licensee “presented well” during her interview with Dr.
Voskanian, her symptoms and degree of depression, chronic marital problems, and
an existing diagnosis of depression provided a sufficient basis with which to
diagnosis Licensee with depression. Id. at 60.
Dr. Voskasian’s diagnosis of alcohol use disorder was based on a number of
factors. Licensee admitted to having consumed alcohol in the past, and
acknowledged she drinks to cope with emotional stress. Id. at 61. Licensee’s self-
reported consumption of alcohol – two to three drinks, a few times per week – was
contradicted by Licensee’s medical records, which indicated she drank daily. Id. at
62. Licensee told Dr. Voskanian that, following her DUI, she only drank twice –
once on Christmas Day and “small amounts” during the summer at the beach. Id.
This was also belied by the medical records provided by Licensee’s primary care
5
doctor, which indicated she consumed alcohol on a daily basis and drank to the point
of unconsciousness when visiting New York with a friend. Id. at 63. This incident
required treatment at a local emergency room. Id. at 65. The New York trip took
place approximately six months after Licensee’s DUI and six weeks prior to her
interview with Dr. Voskanian. Id. at 64. When Dr. Voskanian called Licensee to
inquire about the discrepancy, Licensee speculated that someone drugged her drink.
Id.
Licensee’s failure to disclose the incident in New York and the conflict
between her self-reported levels of drinking and the information captured in her
medical records led Dr. Voskanian to opine she abused alcohol. Id. at 65. Licensee’s
depression was deemed not as critical, as long as it was treated professionally. Id.
However, Dr. Voskanian believed Licensee was consuming alcohol to combat her
depression. Id. On the basis of his interview of Licensee and a review of her medical
records, Dr. Voskanian reiterated his opinion that, within a reasonable degree of
medical certainty, Licensee was not able to safely practice professional nursing, and
her alcohol use was in need of professional monitoring and treatment. Id. at 64-66.
During cross-examination, Dr. Voskanian acknowledged that his expert report
did not explicitly track the language in Section 14(a) of the Nursing Law and provide
that Licensee was unable to practice nursing “with reasonable skill and safety to
patients” by reason of a physical or mental illness, or condition or physiological or
psychological dependence on drugs or alcohol. Id. at 77. Dr. Voskanian did not
believe Licensee had a physiological dependence on alcohol. Id. at 112. When
asked if Licensee had a psychological dependence on alcohol, Dr. Voskanian
initially replied in the affirmative, but then stated he could “not be certain about that
aspect.” Id. at 110-11. However, because Licensee admitted she drank “to deal with
6
her emotional problems,” Dr. Voskanian felt she had a “psychological need” to drink
alcohol. Id. at 112. Dr. Voskanian acknowledged his opinion was influenced by
Licensee’s having dated a bartender with alcohol issues nearly two decades prior,
and thus having “a history of interest in someone who had a drinking issue. And
then in 2016, she had a DUI.” Id. at 99. He reasoned that people are generally
attracted to people “with whom we share interests.” Id. at 98.
Dr. Voskanian further relied on the Fifth Edition of the Diagnostic and
Statistical Manual of Mental Disorders (DSM-V). Id. at 113. He felt Licensee’s
DUI fulfilled one of the criteria for alcohol use disorder. Id. Dr. Voskanian did not
identify the other criteria upon which he based his diagnosis that Licensee suffered
from an alcohol use disorder. Dr. Voskanian acknowledged that psychological
dependence on alcohol is not a disorder identified in the DSM-V. Id. at 112.
Dr. Voskanian conceded that Licensee was probably competent to practice
nursing on the date he testified. However, he considered it his duty to recommend
monitoring for those individuals who evidenced a problem with drinking, “even if
they didn’t kill anybody yet.” Id. at 117. Although Licensee “may be fine,”
monitoring was required because of the risk “that an event can take place.” Id. at
88. Dr. Voskanian considered the future risks of Licensee’s behavior, her long
history of alcohol use, and her minimization of that use, and came to the conclusion
that, based on his professional judgment, monitoring was required. Id. at 117-18.
Licensee testified she has worked for the District as a nurse since 2012. Id. at
168. As part of her work duties, she dispenses medications such as insulin when
prescribed by the individual student’s primary care physician. Id. at 193. Licensee
concurrently works part-time as a nurse for Sesame Place. Id. at 156. In this
position, she treats guests of the park and dispenses over-the-counter medication
7
based on the standing orders of the park’s physician. Id. at 192. In 2016, she
received an award from Sesame Place recognizing “five years of outstanding service
and dedication.” Id. at 161. As to her work performance within the District,
Licensee testified she has never received a rating of less than proficient in any of the
categories for which she is evaluated. Id. at 169.
Licensee was diagnosed with postpartum depression following the birth of her
third child in January 2014. Id. at 177, 188. She treats that condition with an
antidepressant. Id. at 178. However, based on Dr. Voskanian’s advice that the
dosage was too high, Licensee sought treatment with a psychiatrist to determine if
reducing the dosage was appropriate. Id. at 189. Licensee testified she was
prescribed Klonopin for anxiety, but she was not taking it as of the date of the
hearing. Id. at 208. Prior to her DUI, Licensee was in the habit of drinking a glass
of wine at night while cooking dinner. Id. at 179. Licensee testified she “at the
max” drank three or four times a week. Id. She stopped drinking after her DUI,
which she considered a wakeup call. Id. at 180. Licensee did admit to drinking on
three occasions after her DUI, once at the beach, once at Christmas, and again when
visiting New York with a friend. Id. While in New York, Licensee had “two to
three drinks.” Id. at 181. She believed “someone put something into [her] drink,”
because she later woke up in an emergency room with her wedding band and
engagement ring missing. Id. Licensee acknowledged she and her husband have
had marital difficulties in the past. Id. at 179. However, she stated their relationship
has improved. Id. at 182.
Licensee testified she was honest with Dr. Voskanian and had nothing to hide.
Id. She denied minimizing any of her behavior during the interview with Dr.
8
Voskanian, and disagreed with Dr. Voskanian’s testimony that she engaged in binge
drinking. Id. at 183-84.
With respect to alleged inconsistencies in her reported consumption of
alcohol, Licensee testified that she did not report the trip to New York because she
was responding to the “very specific” question of how soon after her DUI had she
consumed alcohol. Id. at 194. She admitted to drinking one month after her June
2016 DUI while vacationing at the beach with her family. Id. When Dr. Voskanian
asked Licensee on January 23, 2017, when she had last consumed alcohol,
Licensee’s answer to that specific question was Christmas. Id. Dr. Voskanian did
not inquire about “anything in between.” Id.
Thomas Evert (Dr. Evert), a principal at one of the District’s middle schools,
testified that Licensee is a “great nurse.” N.T., 8/21/17, at 26. Licensee supervises
the nurses assigned to nine District schools, as well as those employed at local
Catholic schools. Id. at 27. Licensee has distinguished herself in that capacity and
Dr. Evert has never observed Licensee at work in a condition where she was unable
to perform her job responsibilities. Id. Licensee was very forthcoming about her
DUI, and her personal life has never interfered with her work responsibilities. Id. at
30. During the time Licensee was charged with DUI, she continued to perform her
job duties in a professional manner. Id. at 31. Dr. Evert was instrumental in hiring
Licensee, and he would hire her again “in a heartbeat.” Id. at 31-32.
Tammy Wood-Moghal, Licensee’s supervisor at the District, likewise
testified that Licensee is an asset to the nursing department and she manages her
personal and work responsibilities well. Id. at 141. Ms. Wood-Moghal stated that,
if contacted for a professional reference, she would “absolutely” recommend
Licensee for a job. Id. Ms. Wood-Moghal did not perceive that Licensee’s work
9
performance was affected by her alcohol use and Ms. Wood-Moghal was not
concerned that Licensee could not properly perform her nursing duties. Id. at 142.
Licensee’s husband, Michael Thim, testified that, while their relationship had
its difficulties after the birth of their third child, he and Licensee were
communicating much better. Id. at 216. He asserted that at no time was Licensee
drinking every day and she was not an alcoholic. Id. at 217, 221. Mr. Thim
acknowledged Licensee has very infrequently consumed alcohol on a social basis
after her June 2016 DUI, however, he has not seen her intoxicated since then. Id. at
226.
In a Proposed Adjudication and Order dated February 2, 2018, the Hearing
Examiner found that the Commonwealth established by a preponderance of the
evidence, through the competent expert testimony of Dr. Voskanian, that Licensee
suffered from depression, anxiety, and an alcohol use disorder and, consequently,
she was not able to practice nursing with reasonable skill and safety absent a
monitoring program. Reproduced Record (R.R.) at 334a.
The Hearing Examiner was guided, in part, by Licensee’s “evolving
recollection” of her alcohol use and failure to disclose the New York trip to Dr.
Voskanian. Id. at 333a. This failure, and Licensee’s explanation for not reporting
it, that she did not believe it related to her alcohol consumption, undermined
Licensee’s credibility. Id.
The Hearing Examiner cited Dr. Voskanian’s opinion that Licensee had a
“psychological dependence on alcohol” and she “experience[d] a need to drink
alcohol in order to deal with her emotional issues.” Id. at 323a. The Hearing
Examiner found that Licensee was diagnosed with depression and an alcohol use
disorder under the DSM-V. Id. The Hearing Examiner acknowledged that neither
10
Dr. Voskanian’s report nor his testimony identified the DSM-V criteria upon which
he relied to determine Licensee suffered from an alcohol use disorder. R.R. at 331a.
Similarly, Dr. Voskanian did not specifically establish how Licensee’s history of
alcohol use in conjunction with her social, medical, legal and mental health history
satisfied the diagnostic criteria under the DSM-V for an alcohol use disorder. Id.
Despite these omissions, the Hearing Examiner found the substantive record
supported Dr. Voskanian’s diagnosis. Id.
The Hearing Examiner recommended that Licensee’s nursing license be
suspended indefinitely, with the suspension stayed in favor of probation, subject to
Licensee’s participation in the PHMP’s Disciplinary Monitoring Unit (DMU).7 Id.
at 334a. Per the terms of the Proposed Order, Licensee was subject to an evaluation
of her fitness to practice nursing and required to comply with any treatment
recommendations resulting from the evaluation. Id. at 339a-41a. The Hearing
Examiner mandated Licensee’s attendance at any recommended support group
programs, directed she abstain from the use of alcohol in any form, and required she
undergo random drug and alcohol screening. Id. at 341a-43a. Additionally, the
Hearing Examiner restricted Licensee from practicing nursing without PHMP
approval and direct supervision. Id. at 343a-45a. Any violation of the Order would
result in activation of a three-year suspension of Licensee’s license to practice
nursing. Id. at 346a. The Hearing Examiner did not recommend the imposition of
costs of prosecution. Id. at 335a.
7
The DMU refers licensees suffering from a mental or physical disorder, such as a
substance abuse disorder, for appropriate treatment and provides monitoring to ensure that
participants remain capable of safely practicing their licensed profession. Pennsylvania
Department of State Disciplinary Monitoring Unit General Information.
https://www.dos.pa.gov/ProfessionalLicensing/OtherServices/ProfessionaHealthMonitoringProg
rams/Pages/Disciplinary-Monitoring-Unit-General-Information.aspx (last visited July 22, 2019).
11
The Commonwealth filed exceptions to the Proposed Adjudication and Order,
challenging the Hearing Examiner’s recommendation that Licensee not pay the costs
of prosecution. R.R. at 352a-53a. Licensee also filed exceptions to the Proposed
Adjudication and Order, arguing the record did not support the factual or legal
conclusion that she suffered from a drug or alcohol use disorder and was unable to
safely practice nursing without a monitoring program, particularly given the lack of
evidence demonstrating Licensee ever performed her duties while impaired. Id. at
357a-58a.
The Board issued a Final Adjudication and Order on July 2, 2018, in which it
adopted the Hearing Examiner’s findings of fact and conclusions of law.
Supplemental Reproduced Record (S.R.R.) at 469b. With regard to the
Commonwealth’s exceptions, the Board felt that, given Licensee’s cooperation
throughout the proceedings, the imposition of prosecution costs would be
inappropriate. Id. at 470b. As to Licensee’s exceptions, the Board noted her failure
to provide a competing expert opinion and her lack of candor with Dr. Voskanian
about the extent of her alcohol consumption. Id. Dr. Voskanian’s diagnosis was
expressed to a reasonable degree of medical certainty and, in the absence of evidence
to refute his opinion, the Board determined that Licensee’s exceptions lacked merit.
Id. The fact that no harm had come to one of Licensee’s patients was of no moment.
Id. at 470b-71b. The Board was not obligated to wait until harm came to a patient
before taking action given Licensee’s diagnosis with a “psychological or
physiological dependence upon alcohol.” Id. at 471b.
The Board indefinitely suspended Licensee’s nursing license, but immediately
stayed the suspension in favor of a three-year probationary period. Id. at 473(b).
The Final Order contained the same terms and conditions as those set forth in the
12
Hearing Examiner’s Proposed Order. Licensee appealed to this Court and filed a
Petition for Stay. Licensee’s Petition was denied on the basis Licensee failed to
show that, without the requested relief, she would suffer irreparable harm.
Issues
On appeal,8 Licensee generally argues the Board’s findings of fact are not
supported by substantial evidence and the Department failed to prove Licensee
violated Section 14(a) of the Nursing Law. Finally, Licensee challenges Dr.
Voskanian’s expert qualifications and fitness to render the opinion stated.
The Department responds that substantial evidence supports the Board’s
finding that Licensee suffers from depression and alcohol use disorder and Dr.
Voskanian’s conclusion that it is not safe for Licensee to practice nursing without
monitoring. Further, the Department argues that Licensee waived her argument
relative to Dr. Voskanian’s qualifications as an expert as she raises this issue for the
first time on appeal and she stipulated to his qualifications at the August 21, 2017
hearing.
Discussion
A. Waiver
First, we will address the Department’s waiver argument.
Practice and procedures before agencies of the Commonwealth, including the
Board, are governed by the General Rules of Administrative Practice and Procedure
8
Our standard of review is limited to determining whether the findings of fact are supported
by substantial evidence, whether there has been an error of law, or whether there has been a
violation of constitutional rights. Bethea-Tumani v. Bureau of Prof’l and Occupational Affairs,
State Bd. of Nursing, 993 A.2d 921, 925 n.6 (Pa. Cmwlth. 2010). Substantial evidence is such
evidence as a reasonable mind might accept as adequate to support a conclusion. Bethenergy
Mines, Inc. v. Workmen’s Comp. Appeal Bd. (Skirpan), 612 A.2d 434, 436 (Pa. 1992).
13
(GRAPP). 1 Pa. Code §§ 31.1 – 35.251. Section 35.213 of GRAPP provides, in
relevant part:
Failure to file a brief on exceptions [to the proposed
report] . . . shall constitute a waiver of all objections to the
proposed report. Objections to any part of a proposed
report which is not the subject of exceptions may not
thereafter be raised before the agency head in oral
argument, or in an application for agency rehearing or
reconsideration, and shall be deemed to have been waived.
1 Pa. Code § 35.213. Section 703 of the Administrative Agency Law9 and Pa.R.A.P.
1551(a) provide that this Court may not review on appeal any issue not raised before
the agency. See Niles v. Dep’t of Transp., 674 A.2d 739, 741 (Pa. Cmwlth. 1995).
Licensee argues the following in her Brief on Exceptions: 1) the record does
not support a factual or legal conclusion that, as of the date of the August 21, 2017
hearing, Licensee suffered from a drug or alcohol use disorder or that she was
incapable of safely practicing her profession without monitoring; 2) the Department
presented no evidence that Licensee met any criteria for an alcohol use disorder
subsequent to January 23, 2017, the date of her interview with Dr. Voskanian; 3) the
Department failed to prove the elements of Section 14(a) of the Nursing Law; 4) the
Hearing Examiner committed an error of law by rendering his decision based on
facts not in evidence; and 5) Dr. Voskanian’s opinion that Licensee suffers from a
psychological dependence on alcohol is not supported by the evidence. Certified
Record (C.R.), Item No. 17.
Licensee did not challenge Dr. Voskanian’s qualifications as an expert or
suggest he was incompetent to render an opinion. Disagreement with the opinion
Dr. Voskanian rendered does not constitute a challenge to his qualifications to
9
2 Pa.C.S. § 703.
14
furnish that opinion. Furthermore, as the Department notes in its appellate brief, at
the August 21, 2017 hearing, Licensee stipulated to Dr. Voskanian’s expertise as a
board-certified psychiatrist and she raised no objection when the Hearing Examiner
accepted Dr. Voskanian as an expert in psychiatry, including the diagnosis and
treatment of individuals suffering from drug and alcohol dependency. Licensee
acknowledged this stipulation in her Proposed Findings of Fact and Conclusions of
Law filed after the hearing. C.R., Item No. 12, at 2.
The Department is correct that Licensee raised the issue of Dr. Voskanian’s
expert qualifications for the first time on appeal. Consequently, we conclude that
issue is waived.
B. DSM-V Criteria
Next, Licensee argues the Board’s findings of fact are not supported by the
record. Specifically, Licensee challenges the Board’s findings that she suffered from
an alcohol use disorder and that she was unable to practice professional nursing with
reasonable safety to her patients as a result of her alcohol use disorder. Licensee
contends Dr. Voskanian failed to identify any criteria in the DSM-V that justify his
determination that she suffered from an alcohol use disorder. We agree.
In determining that Licensee was unable to safely practice nursing, the
Hearing Examiner relied on Dr. Voskanian’s opinion that she suffered from an
alcohol use disorder. The Hearing Examiner acknowledged that Dr. Voskanian
failed to identify in his written report the DSM-V criteria upon which he relied to
make this diagnosis. This omission was repeated in Dr. Voskanian’s testimony,
although he suggested Licensee’s DUI met one criterion under the DSM-V.
Nevertheless, the Hearing Examiner found that the substantive record supported a
“diagnostic finding of an [a]lcohol [u]se [d]isorder” based on the frequency and
15
amount of Licensee’s alcohol consumption, particularly during the period during
which she experienced marital difficulties, and Licensee’s use of alcohol to cope
with her emotional problems.
Significantly, the Hearing Examiner also failed to set forth the DSM-V criteria
for alcohol use disorder in his Proposed Adjudication and Order. It is not clear what
those criteria might be, which facts in the record demonstrate Licensee has met those
criteria, or whether the Hearing Examiner even knew what those criteria are. The
Hearing Examiner merely accepted Dr. Voskanian’s opinion that Licensee suffered
from an alcohol use disorder. For its part, the Board adopted the Hearing Examiner’s
findings of fact and conclusions of law, and its Final Adjudication and Order
provides no more illumination on this subject than does the Hearing Examiner’s
proposed resolution.
The Board likewise predicates its suspension of Licensee’s nursing license on
Dr. Voskanian’s diagnosis of an alcohol use disorder under the DSM-V, despite his
utter failure to articulate the criteria required for that diagnosis and to explain how
Licensee’s behavior met those criteria. Rather than explaining the clinical basis for
his diagnosis, Dr. Voskanian linked a decades-old relationship, and the death of
Licensee’s brother 20 years earlier, to her present condition and concluded she
suffers from an alcohol use disorder. His reasoning that Licensee’s DUI at age 38
was related to her having dated an alcoholic bartender while in her college years is
unsupportable at best. Dr. Voskanian’s opinion can only be read as implying that
Licensee abuses alcohol because she previously dated someone who abused alcohol.
Licensee’s more recent use of alcohol during periods in which she suffered untreated
post-partum depression and marital difficulties is similarly of little moment, as Dr.
Voskanian never testified how or if these behaviors fulfilled the DSM-V criteria.
16
In light of the above, and having considered the evidence presented, the
finding that Licensee suffers from an alcohol abuse disorder is not supported by
substantial evidence.
C. Section 14(a) of the Nursing Law
Finally, we address Licensee’s argument that the Department failed to prove
Licensee violated Section 14(a) of the Nursing Law, which pertinently authorizes
the Board to refuse, suspend, or revoke any license if “[t]he licensee is unable to
practice professional nursing with reasonable skill and safety to patients by reason
of mental or physical illness or condition or physiological or psychological
dependence upon alcohol . . . so long as such dependence shall continue.” 63 P.S.
§ 224(a) (emphasis added).
It is undisputed that Dr. Voskanian did not diagnose Licensee with a
physiological dependence upon alcohol. As to a psychological dependence on
alcohol, the Hearing Examiner found that Licensee was so diagnosed. In its Final
Adjudication and Order, the Board indicated that Licensee had been diagnosed with
a “psychological or physiological dependence upon alcohol.” C.R., Item No. 18, at
4. A review of the record, however, contradicts these findings.
Dr. Voskanian initially testified that he believed Licensee suffered from a
psychological dependence on alcohol. Id. at 110. However, he clarified that opinion
two sentences later and stated that, based on a “comparison of what she said and
what the records were received [sic],” he could not be certain “about that aspect.”
Id. at 110-11. Dr. Voskanian further admitted his report did not conclude Licensee
had a psychological dependence on alcohol, and psychological dependence on
alcohol is not a diagnosable disorder under the DSM-V. Id. at 111-12.
17
In the absence of unequivocal testimony that Licensee has a psychological
dependence on alcohol, the Board’s finding to the contrary is, at best, baffling. As
the Department failed to demonstrate Licensee has a psychological or physiological
dependence on alcohol, the Board’s determination that she is not safe to practice
nursing on that basis simply cannot stand.
Conclusion
Considering the above, we agree with Licensee that the Department has not
shown that Licensee has a psychological dependence on alcohol, and the Board’s
finding that Licensee suffers from an alcohol use disorder is not based on substantial
evidence. Accordingly, the decision of the Board is reversed.10
__________________________________
ELLEN CEISLER, Judge
10
On June 6, 2019, Petitioner filed a supplemental brief setting forth legal authority to
support positions made during oral argument held before this Court that same day. Consideration
of this legal authority is unnecessary for disposition of this matter and we therefore decline to
address it further.
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jamie Seibert Thim, R.N., :
Petitioner :
:
v. : No. 916 C.D. 2018
:
Bureau of Professional and :
Occupational Affairs, State :
Board of Nursing, :
Respondent :
ORDER
AND NOW, this 24th day of July, 2019, the July 2, 2018 order of the State
Board of Nursing is hereby REVERSED.
__________________________________
ELLEN CEISLER, Judge