This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1580

 

Catherine Kosiapo Collins,

Respondent,

 

vs.

 

State of Minnesota,

Department of Health,

Appellant.

 

Filed ­­­May 16, 2006

Reversed

Harten, Judge*

 

Hennepin County District Court

File No. AP 05-2811

 

Stephen N. Sage, 204-2239 Carter Avenue, St. Paul, MN 55108 (for respondent)

 

Mike Hatch, Attorney General, Audrey Kaiser Manka, Assistant Attorney General, 445 Minnesota Street, Suite 1200, St. Paul, MN 55101-2130 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge; Stoneburner, Judge; and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            Appellant challenges the district court judgment reversing the Commissioner of Health’s conclusion that respondent abused a vulnerable adult in violation of the Minnesota Vulnerable Adults Act (MVAA); appellant asserts that substantial evidence supported the commissioner’s conclusion.  Respondent argues that the commissioner’s decision was arbitrary and capricious.  Because the commissioner’s conclusion was supported by substantial evidence and was not arbitrary and capricious, we reverse.

FACTS

 

            Respondent Catherine Kosiapo Collins was employed as a nursing assistant at a long-term care nursing facility licensed by the State of Minnesota.  M.S., who is now deceased, was an 88-year old resident of the facility who suffered from multiple disorders, including congestive heart disease, edema, hypertension, depression, anxiety, aphasia, and anemia.  M.S. was generally alert as to time and place but was partially and intermittently disorientated and exhibited physical resistance toward staff.  M.S. also was unable to walk and could not speak; he answered questions with nods, gestures, and sounds.

            At lunchtime on 21 April 2001, a nursing assistant who regularly worked with M.S. noticed redness and bruising around M.S.’s eye.  The assistant and a licensed practical nurse undertook to obtain information regarding his injuries.  Collins walked by while the staff questioned M.S., prompting M.S. to point in her direction, become agitated, and grunt loudly. 

Collins and Matu Kromah, another nursing assistant, had transferred M.S. from his bed to a wheelchair that morning and were subsequently questioned about his injuries.  Both indicated that they were not aware of the injuries and that the transfer had occurred without incident.  Both were suspended pending an internal investigation. 

The investigation involved interviews with M.S., Collins, and Kromah.  The nursing supervisor who interviewed M.S. testified that she was familiar with him and could understand his communications.  She asked M.S. a series of questions about when and where the injury occurred, and the gender, race, and appearance of the perpetrator; his answers implicated Collins.  She also asked M.S. if Collins had hit him and he answered “da,” which was M.S.’s articulation for “yes.”

In her interviews with facility staff, respondent initially denied knowing how M.S. was injured, but later explained that M.S. had struck her and that she grabbed his hand to avoid being hurt.  Collins said, “I don’t know if it was my hand that hit him or his[]” and indicated that the injury could have resulted from M.S.’s contact with the side-rail of the bed or the bed remote control.  After initially denying that the injury occurred during the transfer, and then being told of her suspension, Kromah admitted that Collins had hit M.S. after M.S. struck Collins.  She claimed that she failed to report Collins’s actions out of fear, but later indicated that she wanted Collins to report the incident herself.  Both employees were terminated after staff concluded that physical abuse had occurred in violation of the MVAA.  Minn. Stat. §§ 626.557, .5572 (2004).   

Following the facility’s report of abuse, appellant Minnesota Department of Health conducted an investigation.  The investigator interviewed M.S. about the incident, and he responded to her questions by gesturing and nodding to indicate yes or no.  M.S. was able to communicate that two female nursing assistants were in the room when the incident occurred and that it was Collins who had hit him with a closed fist near his right eye.  To check M.S.’s accuracy, the investigator asked M.S. whether “Courtney,” a fictitious name of a person not employed at the facility, was the perpetrator, to which M.S. indicated, “No.”  The nursing assistant who had cared for M.S. the morning of the incident said that he did not have the eye injury at that time. 

The investigator also interviewed four other employees who were familiar with M.S. and the incident.  These employees described M.S. as being reliable, accurate, and capable of reporting concerns related to abuse, and indicated that M.S. did not have a history of complaining about staff care.  Collins told the investigator that she did not strike M.S., and Kromah reiterated that she witnessed Collins hit M.S. in response to being struck by M.S. during the transfer.  The investigator concluded that “[t]he preponderance of evidence indicates that physical abuse did occur . . . in relation to [Collins] hitting [M.S.] near his right eye causing a bruise on his eye lid, three small lacerations above his right eye in addition to a bump above his right eyebrow.” 

At Collins’s request, an evidentiary hearing was convened.  M.S. died before the hearing.  The referee found (1) that Kromah’s testimony was “less credible than that of [Collins]” because Kromah had admittedly lied during the investigation when she stated that she did not know how M.S. had sustained the injury; (2) that Collins was credible and had a more impressive personnel file than Kromah; and (3) that the reliability of M.S.’s statements was questionable—M.S. had a “questionable cognitive status,” and his statements of nods and gestures may not have been correctly interpreted.  The referee concluded that the state agency did not meet its burden of establishing maltreatment by a preponderance of the evidence and recommended that the state agency’s finding of maltreatment by physical abuse be reversed.    

The Commissioner of Health altered the referee’s findings and declined to follow his recommendation, finding that M.S.’s condition did not impair his ability to accurately report the incident and that his consistent identification of Collins as the abuser supported the finding of maltreatment.  Although the commissioner noted Kromah’s inconsistent statements, she found that Kromah’s testimony was credible to corroborate M.S.’s identification of Collins as the perpetrator.  The commissioner concluded that the state had met its burden of establishing maltreatment by a preponderance of the evidence and that Collins had physically abused M.S. in violation of the MVAA.

Collins appealed the commissioner’s order to the district court.  The district court adopted the referee’s findings and recommended order, found that Collins was more credible than Kromah, and that M.S. was “not sufficiently reliable as a reporter.”  The district court reversed the commissioner’s order finding maltreatment, concluding that the order was unsupported by substantial evidence in view of the entire record.  The department appeals.  

D E C I S I O N

            On appeal from the district court’s review of an agency decision, we review the agency decision to determine whether it is “unsupported by substantial evidence in view of the entire record as submitted,” or “arbitrary or capricious.”  Minn. Stat. § 14.69(e), (f) (2004).  We need not defer to the district court’s decision and independently review the commissioner’s decision.  Zahler v. Minn. Dept. of Human Servs., 624 N.W.2d 297, 301 (Minn. App. 2001).   “[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).  Upon review, a court must exercise judicial restraint, lest it substitute its judgment for that of the agency.  In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 277 (Minn. 2001). 

1.         Substantial Evidence.

            Appellant argues that substantial evidence in the record supports the commissioner’s determination that Collins abused M.S. in violation of the MVAA and, therefore, that the district court erred by reversing the commissioner’s determination. 

The substantial evidence test requires an evaluation of the evidence on which the commissioner relied in light of the entire record.  Cable Commc’ns Bd. v. Nor-west Cable Commc’ns P’ship, 356 N.W.2d 658, 668 (Minn. 1984).  We must affirm a reasoned decision, even if we would have reached a different conclusion.  Id. at 669.  Substantial evidence is: “(1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the evidence considered in its entirety.”  Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 466 (Minn. 2002).  We must accept inferences made by the commissioner unless manifestly unjust.  Reserve  Mining Co., 256 N.W.2d at 825. 

As an 88-year-old resident of a licensed nursing home facility, M.S. was protected by the MVAA.  See Minn. Stat. § 626.5572, subd. 21(1) (2004) (defining “vulnerable adult” as a resident or inpatient of a facility).  The MVAA protects vulnerable adults from maltreatment by caregivers.  See Minn. Stat. § 626.557, subd. 1 (2004).  Under the MVAA, maltreatment is tantamount to abuse, which is defined as “[c]onduct which is not an accident or therapeutic conduct . . . which produces or could reasonably be expected to produce physical pain or injury or emotional distress, including, but not limited to, the following: hitting, slapping, kicking, pinching, biting, or corporal punishment of a vulnerable adult[.]”  Minn. Stat. § 626.5572, subds. 2(b)(1), 15 (2004).

            The record contains substantial evidence to support the commissioner’s finding that, under the statutory definitions of maltreatment and abuse, Collins committed maltreatment of M.S. by striking him with a closed fist.  M.S.’s injuries were not observed until after Collins and Kromah attended M.S.  Initially, M.S. became agitated and gestured toward Collins while staff addressed his injuries and then later repeatedly identified Collins as the source of his injuries when questioned by facility staff and the department’s special investigator.  Facility staff and the investigator indicated that M.S. was reliable, accurate, and able to communicate through gestures, nodding, and sounds.  Further, after initially denying that anything unusual occurred while transferring M.S. the day of the incident, Collins admitted that she may have inadvertently caused the injury when deflecting M.S.’s slaps.  And Kromah indicated that she witnessed Collins intentionally strike M.S. during the transfer. 

            Collins, nonetheless, argues that the substantial evidence test cannot be met because the referee, who was in a position to hear the testimony and observe the witnesses, found that M.S. and Kromah were not credible witnesses.  But the referee makes only a recommendation to the commissioner, who then reviews the evidence and issues a decision.  Hymanson v. City of St. Paul, 329 N.W.2d 324, 326 (Minn. 1983).  The referee’s role is subordinate to, and therefore not binding upon, the commissioner.  Id. at 326-27. 

Here, the commissioner produced a four-page memorandum, explaining the deviations from the referee’s report, particularly in regard to credibility determinations.  Cf. Bloomquist v. Comm’r of Natural Res., 704 N.W.2d 184, 190 (Minn. App. 2005) (commissioner’s memorandum explaining deviations from ALJ’s report and articulating a rational connection between the factual findings and legal conclusions precludes determination that commissioner acted in arbitrary and capricious manner).  The commissioner explicitly credited M.S.’s statements, finding that he was capable of accurately communicating with the investigator and caregivers, and was not hampered by dementia.  While the commissioner found that Kromah’s credibility was questionable because of her inconsistent statements, the commissioner reasonably concluded that Kromah’s testimony was sufficiently believable to corroborate M.S.’s consistent identification of Collins as the perpetrator of the abuse. 

We defer to the commissioner’s credibility determinations if there is record evidence that reasonably sustains those determinations.  Tuff v. Knitcraft, Corp., 526 N.W.2d 50, 51 (Minn. 1995); see also Blue Cross & Blue Shield, 624 N.W.2d at 278 (appellate courts defer to commissioner’s conclusions regarding conflicts in testimony, weight of testimony, and inferences to be drawn from testimony).  The record contains ample evidence that M.S. was a credible reporter, that M.S. was reliable and capable of reporting the incident, and that M.S.’s version of events, as corroborated by Kromah, was accurate.  Accordingly, we conclude that the commissioner’s finding that Collins maltreated M.S. by physical abuse is supported by substantial evidence. 

2.         Commissioner’s Decision Arbitrary and Capricious.

            Collins asserts that the commissioner’s decision was arbitrary and capricious because it adopted the department’s proposed findings verbatim.  “An agency’s conclusion is arbitrary and capricious if there is no rational connection between the facts and the agency’s decision.”  Sweet v. Comm’r of Human Servs., 702 N.W.2d 314, 318 (Minn. App. 2005), review denied (Minn. Nov. 15, 2005).  Agency decisions are presumed correct and a reviewing court must defer to the agency’s conclusions regarding conflicts in testimony and the inferences drawn from such testimony.  Blue Cross & Blue Shield, 624 N.W.2d at 278.  If there is room for a difference of opinion, the decision is not arbitrary and capricious, even if this court does not agree with the agency’s conclusions.  In re Rochester Ambulance Serv., 500 N.W.2d 495, 499 (Minn. App. 1993).

            Adopting a party’s proposed findings and conclusions of law does not constitute reversible error per se.  Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).  But it raises questions as to whether the parties’ testimony and documentary evidence were independently evaluated.  Id.  When the record supports the findings and shows that all of the issues were conscientiously considered, such adoption is not improper and will not provide a basis for reversal.  Bersie v. Zycad Corp., 417 N.W.2d 288, 292 (Minn. App. 1987), review denied (Minn. May 5, 1988). 

            Here, review of the department’s proposed findings and the commissioner’s actual findings show that there are substantial portions of verbatim adoption of the department’s proposed findings.  There are, however, additions to and deletions from the proposed findings, indicating that the commissioner conscientiously considered the issues and weighed the evidence to reach her own conclusions.  Moreover, the commissioner’s findings are supported by substantial evidence and, thus, are not clearly erroneous.  We conclude that the commissioner’s decision is neither arbitrary nor capricious. 

            Reversed.