This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-96-2463

In the Matter of the Findings of Abuse, Neglect,

or Misappropriation of Property by Larry Axtell.

Filed August 26, 1997

Affirmed in Part and Reversed in Part

Schumacher, Judge

Department of Health

File No. 2-0900-9201-2

Kay Nord Hunt, Lommen, Nelson, Cole & Stageberg, P.A., 1800 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for Relator Axtell)

Robert C. Sipkins, 601 Carlson Parkway, Suite 1050, Minnetonka, MN 55305 (for Relator Axtell)

Hubert H. Humphrey III, Attorney General, Mary L. Stanislav, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for Respondent Commissioner of Health)

Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Davies, Judge.

U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

Respondent Commissioner of Health (Commissioner) determined that relator Larry Axtell violated state and federal law by sexually abusing a patient under his care. Axtell argues the Commissioner's determination that he violated federal law is not supported by substantial evidence and that the Commissioner erred in determining Axtell violated state law. We affirm in part and reverse in part.

FACTS

Axtell is a registered nursing assistant, who had been employed at the Golden Oaks Nursing Home since 1989. D.S., a male resident who is paralyzed from the chest down, came to the nursing home in early 1993. As a result of his condition, D.S. had severe sores on his left and right hips, and on his buttocks.

About 9:00 p.m. on the evening of October 30, 1993, Axtell entered D.S.'s room to provide evening care. Axtell cared for D.S. numerous times prior to October 30, 1993. Evening care consists of a bed bath and perineal care (pericare) if necessary. Pericare is the washing of the pubic area, including the genitals. Tara Crossman, R.N., followed Axtell into the room, spoke with him for a short time, and then left. Axtell began giving D.S. a bed bath. At 9:10 p.m., Crossman entered the room for a second time. Axtell had washed D.S.'s torso.

Crossman treated D.S.'s sores. When she had completed her treatment, Crossman remained in the room conversing with D.S. Axtell resumed performing pericare on D.S. When Crossman left the room, she observed Axtell washing D.S.'s penis using a soapy washcloth. Although Crossman noted that Axtell was quickly and vigorously washing D.S.'s penis, she was not alarmed by this technique. She left D.S.'s room about 9:20 p.m. At approximately 9:20 p.m., Crossman left the room.

Ten minutes later, Crossman went back into D.S.'s room. The curtain facing the door remained partially open. D.S.'s genital area was exposed. Axtell had one of his hands on the shaft of D.S.'s penis, and the other hand at the tip of the penis. D.S.'s penis was fully erect. Axtell remained in the room with D.S. until about 9:45 p.m.

While Axtell performed the pericare, D.S. was positioned on his back and could not observe the procedure. D.S. does not have complete feeling in his groin area. He was aware, however, that Axtell was at his groin. D.S. also believed that Axtell was taking a long time to complete the care. Pericare may usually be completed in about two minutes. In some instances, however, it may require more time. When fecal material is present, pericare sometimes required up to ten minutes, according to nursing assistants who treated D.S. According to Crossman, however, no fecal matter was present.

D E C I S I O N

The decisions of administrative agencies are presumed to be correct and therefore, are entitled to deference. Ross v. Department of Human Servs., 469 N.W.2d 739, 740 (Minn. App. 1991), review denied (Minn. Aug. 12, 1991). However, a reviewing court may reverse an agency's decision if the court determines the agency violated constitutional law, exceeded its jurisdiction, is not supported by substantial evidence, is arbitrary and capricious, or is based on an error of law. Id.; Minn. Stat. § 14.69 (1996).

Substantial evidence is evidence that, in the context of the record as a whole, "a reasonable mind might accept as adequate" to support the finding. In re Wang, 441 N.W.2d 488, 492 (Minn. 1989). The supreme court, however, has stated:

In a disciplinary proceeding, if reasonable minds are to accept as adequate findings made under a preponderance standard, it is this court's view these findings must be reasonable in the context of the record as a whole, having in mind, as a reasonable person would, the seriousness of the matter under review.

Id. Disciplinary proceedings are not ordinary proceedings. Id. As such, in these proceedings, "the finder of fact, bearing in mind the gravity of the decision to be made, will be persuaded only by evidence with heft." Id.

Axtell argues the Commissioner's decision that he violated federal law is not supported by substantial evidence. We disagree. The manner in which Axtell touched and manipulated D.S.'s penis, the lack of washing equipment observed by Crossman, the length of time it took, and D.S.'s testimony that Axtell fondled him support the Commissioner's determination.

The Commissioner also determined that Axtell violated state law. Because this issue was not before the ALJ, no evidence or arguments were presented regarding it. As such, we conclude that this determination is not supported by substantial evidence and must be reversed.

Affirmed in part and reversed in part.