Sharon Weiselfish–Giammatteo v. Connecticut State Board of Examiners for Physical Therapists (2013)

MEMORANDUM OF DECISION

The plaintiff, Sharon Weiselfish–Giammetteo, appeals ¹ from a June 13, 2011 final decision of the board of examiners for physical therapists (the board) placing the plaintiff on probation and fining her $10,000.

The procedural background of this appeal is as follows.   The plaintiff was notified of a hearing to commence on March 12, 2007 regarding the board's charges against her.   On April 5, 2007, while the hearing was in progress, the board was informed that an attorney for the department of public health (the department) had had an ex parte communication with the board.   On April 17, 2007, the plaintiff filed with the board a motion to terminate the proceedings.   This motion was granted by a newly-constituted board on June 3, 2008, allowing the plaintiff to have “a new hearing with a new record.”   On September 25, 2008, the board issued a clarification stating that the plaintiff would receive a “new evidentiary record,” not a “new administrative record.”   Thus the board gave permission to the department and the plaintiff to introduce documents and witnesses from the prior terminated hearing, subject to an objection before the board to such admission.   The plaintiff objected to the procedure as set forth in the clarification, but the board overruled her objection.   The second hearing commenced on October 7, 2008 and concluded on November 3, 2009.   As indicated, the final decision was issued on June 13, 2011.  (Return of Record, ROR, Volume I, pp. 2–6.)

The final decision concluded that the plaintiff's license was subject to disciplinary action under § 20–73a for failing to “conform to the accepted standards of practice of physical therapy brought against any person licensed as a physical therapist.”   She had treated a patient “excessively and unnecessarily,” had treated areas of the patient's body that were not in the area of injury without clinical justification, failed to maintain adequate treatment records, and had employed treatments that did not meet the standard of care.

Finding these violations, the board issued an order for sanctions based upon §§ 19a–17 and 20–73a.   The plaintiff was fined $10,000 and placed on probation for two years.   During the probationary period, the plaintiff was ordered to take continuing education courses and to have in place an “expert in physical therapy quality assurance” to serve as a monitor.  (Id., pp. 7–26.)   The plaintiff has appealed from the final decision.

The court sets forth the applicable standard of review as established by our appellate courts.  “We review the issues raised by the plaintiff in accordance with the limited scope of judicial review afforded by the [Uniform Administrative Procedure Act (UAPA), General Statutes § 4–166 et seq.]  ․ Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable ․ [Constrained by a narrow scope of review] [n]either this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of facts ․ Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion ․

“The substantial evidence rule governs judicial review of administrative fact-finding under the UAPA, General Statutes § 4–183(j)(5) and (6).   An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred ․ The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency ․ and ․ provide[s] a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action ․ The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence.”  (Citations omitted.)  Spitz v. Board of Examiners of Psychologists, 127 Conn.App. 108, 114, 12 A.3d 1080 (2011).   See also Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 800, 955 A.2d 15 (2008);  Okeke v. Commissioner of Public Health, 304 Conn. 317, 324, 39 A.3d 1095 (2012).

The plaintiff first argues that she did not receive the “new hearing” that the board ordered, because exhibits were introduced from the prior terminated hearing.   The court rejects this argument.   Under Henderson v. Dept. of Motor Vehicles, 202 Conn. 453, 462, 521 A.2d 1040 (1987),² the correct procedure when an ex parte contact, found inappropriate, occurs, is to disqualify the adjudicators, not to dismiss the entire disciplinary hearing.   The federal court in Giammetteo v. Newton, 2011 U.S. Dist. Lexis 145470, aff'd 452 Fed.App. 24 (2d Cir.2011), similarly determined that the plaintiff was not denied due process, because any violations were cured by the granting of a new hearing with a new board.   The prior exhibits were not automatically admitted into evidence, but were subject to objections by the parties to the new hearing.

The plaintiff further claims that the board erroneously admitted exhibits relating to the practice of chiropractic medicine, over which it had no jurisdiction.   She also claims that the use of these exhibits to reach findings of fact and conclusions of law demonstrate a lack of substantial evidence.

On the other hand, the plaintiff failed to demonstrate prejudice by the admission of these records.   See Moraski v. Connecticut Board of Examiners & Funeral Directors, 291 Conn. 242, 263, 967 A.2d 1199 (2009) (plaintiff must demonstrate existence of actual bias).   She cross-examined numerous witnesses regarding the records.   The board in rendering its final decision did not attribute to the plaintiff any misconduct based on the treatment provided to patient # 1 at the chiropractic facility.   Finally, the plaintiff herself offered and had admitted into evidence these same records that she claims were inappropriately considered by the board.  (ROR, Vol.IV, pp. 417–600.)   As a general rule under § 4–178 evidence is permitted in contested administrative hearings unless it will substantially prejudice a party.   See Altholtz v. Connecticut Dental Commission, 4 Conn.App. 307, 311, 493 A.2d 917 (1985).

The plaintiff also argues that the penalties of a fine and probation were an abuse of the board's discretion.   The court, however, cannot reverse these sanctions as long as they were within the limits prescribed by law and the board legitimately exercised its judgment in imposing the sanctions.   See Pet v. Dept. of Health Services, 228 Conn. 651, 677–78, 638 A.2d 6 (1994).   The plaintiff has not demonstrated an abuse of discretion by the board in either of these regards.   Section 19a–17 (referred to in § 20–73a) allows for a probationary period and a maximum civil penalty of $25,000.   The board took into account the dangers to the public where a licensee was not in compliance with the standards of the profession and also that the plaintiff had previously entered into a consent decree for similar violations.

The appeal is therefore dismissed.

Henry S. Cohn, Judge

FOOTNOTES

FN1. The plaintiff is aggrieved by the disciplinary action of the board of examiners for physical therapists for purposes of General Statutes § 4–183(a)..  FN1. The plaintiff is aggrieved by the disciplinary action of the board of examiners for physical therapists for purposes of General Statutes § 4–183(a).

FN2. To the degree that plaintiff claims a due process violation, while Henderson was decided under state law, the case of Pet v. Dept. of Health Services, 228 Conn. 651, 671, 638 A.2d 6 (1994), declares that “the procedures required by the UAPA exceed the minimal procedural safeguards mandated by the due process clause.”   See also Wasfi v. Dept. of Public Health, 60 Conn.App. 775, 781, 761 A.2d 257 (2000), cert. denied, 255 Conn. 932, 767 A.2d 106 (2001)..  FN2. To the degree that plaintiff claims a due process violation, while Henderson was decided under state law, the case of Pet v. Dept. of Health Services, 228 Conn. 651, 671, 638 A.2d 6 (1994), declares that “the procedures required by the UAPA exceed the minimal procedural safeguards mandated by the due process clause.”   See also Wasfi v. Dept. of Public Health, 60 Conn.App. 775, 781, 761 A.2d 257 (2000), cert. denied, 255 Conn. 932, 767 A.2d 106 (2001).

Cohn, Henry S., J.