This opinion will be unpublished and

may not be cited except as provided by

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




In the Matter of the Findings of Abuse, Neglect or

Misappropriation of Property by R.B.R.

Filed December 9, 1997


Davies, Judge

Department of Health

File No.11-0900-10345-2

Angela McCaffrey, Supervising Attorney, Mark Mathison, Certified Student Attorney, Jon Miller, Certified Student Attorney, Hamline University School of Law, General Practice Clinic, 1536 Hewitt Ave., St. Paul, MN 55104 (for relator R.B.R.)

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

Considered and decided by Lansing, Presiding Judge, Davies, Judge, and Willis, Judge.



Relator appeals by writ of certiorari the Assistant Commissioner of Health's finding that relator physically abused a nursing home resident. We affirm.


Relator R.B.R. formerly worked as a nursing assistant at a Minneapolis nursing home. A coworker claimed he saw relator strike a resident on the shoulder with a closed fist. The employer immediately suspended relator, and shortly thereafter terminated her. The incident and the results of the facility's investigation were reported to the Minnesota Department of Health's Office of Health Facility Complaints, which conducted its own investigation.

The Department of Health subsequently made a finding of abuse. Relator requested a contested case hearing, and following the hearing, an administrative law judge (ALJ) recommended that the Commissioner of Health find that relator abused a nursing home resident.

The Assistant Commissioner of Health, by order dated May 12, 1997, adopted the ALJ's recommendation in its entirety and directed that the following finding be entered into the Nursing Assistant Registry:

[Relator], on April 19, 1995, abused a [nursing home resident] by hitting the resident on the shoulder with a closed fist.

Relator now seeks certiorari review of the Assistant Commissioner's order.


In reviewing a contested case decision, an appellate court

may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the administrative finding, inferences, conclusion, or decisions are:

(a) In violation of constitutional provisions; or

* * *

(e) Unsupported by substantial evidence in view of the entire record as submitted.

Minn. Stat. § 14.69 (1996).

[D]ecisions of administrative agencies enjoy a presumption of correctness, and deference should be shown by courts to the agencies' expertise and their special knowledge in the field of their technical training, education, and experience.

Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn. 1977). A reviewing court "cannot substitute its judgment for that of the administrative body when the finding is properly supported by the evidence." Vicker v. Starkey, 265 Minn. 464, 470, 122 N.W.2d 169, 173 (1963). In considering questions of law, "reviewing courts are not bound by the decision of the agency and need not defer to agency expertise." St. Otto's Home v. Minnesota Dep't of Human Servs., 437 N.W.2d 35, 39-40 (Minn. 1989.

I. Substantial Evidence

Relator argues that the finding by the Assistant Commissioner that relator abused a nursing home resident is not supported by substantial evidence. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Herbst, 256 N.W.2d at 825.

Here, we have two versions of the incident, one given by relator and one by the coworker. The case therefore turns entirely on the credibility of the witnesses. In such a situation, a reviewing court "must defer to the [fact-finder's] assessment of credibility of witnesses and the weight to be given to their testimony." General v. General, 409 N.W.2d 511, 513 (Minn. App. 1987). And, when the fact-finder confronts "conflicting evidence[,] or diverse inferences may be drawn from the evidence, its conclusion must stand unless manifestly and clearly contrary to the evidence." Nelson v. Lutheran Mut. Life Ins. Co., 311 Minn. 527, 529, 249 N.W.2d 445, 447 (1976).

Here, the ALJ found the testimony of the coworker to be more credible:

[The coworker's] testimonial account of the hitting incident is stated with consistency and with a sincerity and conviction that has the ring of truth and is without rational motive to misrepresent.

The ALJ also found that relator's testimony was not persuasive:

There are serious breaches in continuity and consistency of her testimony, characterized by her confused slips of the tongue. It is apparent that such blunders result from her inability to successfully adhere to a contrived scenario.

Finally, the ALJ found "not worthy of belief" the testimony from the supervising licensed practical nurse (LPN), noting that if the coworker had told the LPN that he had lied, the LPN would have reported the conversation to the investigator, which she did not do.

The ALJ's conclusion that relator abused a resident by hitting him on the shoulder with her fist is supported by substantial evidence. The coworker's testimony provides substantial evidence that relator abused the nursing home resident on that date.

II. Denial of Due Process

Relator also argues that she was denied due process and the right to a fair review of the ALJ's findings because portions of the audio recording of the contested case hearing are inaudible or missing and were thus unavailable to the Assistant Commissioner and this appellate court.

Relator did not, however, file a statement under rule 110.03 or 110.04 or respond to the state's offer to stipulate to missing testimony. See Deli v. University of Minn., 511 N.W.2d 46, 51 (Minn. App. 1994) (missing testimony crucial to party's case can be prepared in statement under rule 110.03 or 110.04), review denied (Minn. Mar. 23, 1994). Nor does relator provide any reasons why she did not stipulate to missing testimony. Relator was represented at the contested case hearing by a certified student attorney and a supervising attorney. If the missing testimony were crucial, at least one or both should have been able to supplement the record. We therefore conclude that the missing testimony was not crucial to relator's case.

Further, the supreme court has held that, where there are mechanical difficulties with the use of recording equipment, a party must show substantial prejudice in order to establish a due process violation. Whalen v. Minneapolis Special Sch. Dist. No. 1, 309 Minn. 292, 297-98, 245 N.W.2d 440, 443-44 (1976).

Relator cites two critical gaps in the transcript. The first, a missing portion of the coworker's testimony, relates to an exhibit evidencing disciplinary action brought against the coworker. The exhibit, which relator admits "speaks for itself," was available to the Assistant Commissioner. The disciplinary action, which stands undefended and unexplained by the coworker, prejudices the coworker, not relator.

The second critical gap in the transcript includes a portion of the direct examination of relator's supervising LPN. Counsel for relator did provide the Assistant Commissioner with the missing direct questions, but did not "supplement the record with answers to these question[s] because the critical information appears in the record." If the critical information is in the record, relator was not prejudiced by the missing testimony. Relator has not established a due process violation.