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Karanjah v. Department of Social & Health Services (DSHS)

Court of Appeals of Washington, Division 2

July 25, 2017

ALICE KARANJAH, Respondent,
v.
DEPARTMENT OF SOCIAL AND HEALTH SERVICES (DSHS), Appellant.

          Melnick, J.

         A superior court reversed a board of appeals (BOA) decision that Alice Karanjah, a state licensed nursing assistant, abused a vulnerable adult. The Department of Social and Health Services (DSHS) appeals. We conclude that even though substantial evidence supported the challenged findings of fact, the BOA erroneously interpreted and applied the law. Therefore, the BOA's order was arbitrary and capricious. Accordingly, we reverse the BOA's order and affirm the superior court's order. We also affirm the superior court's award of Karanjah's attorney fees and award her attorney fees on appeal.

         FACTS

          I. The Incident [1]

         Karanjah worked with vulnerable adults at Pioneer Place Alzheimer Residence, an assisted living facility in Tacoma. She received training on dementia and mental health, dealing with difficult behavior and abuse.

          Ivan, [2] a 69-year-old resident of Pioneer Place, received diagnoses of vascular and Alzheimer related dementia. He "could not be re-directed, he was inappropriate in his actions, and could be very aggressive and combative." Clerk's Papers (CP) at 4. Ivan had a history of entering other residents' rooms and trying to get into their beds. These actions sometimes interfered with residents' oxygen equipment.

         At approximately midnight on January 3, 2011, Ivan entered a female resident's room, attempted to get into her bed, and tried to sleep in her bed with her. The partially paralyzed female resident could not speak; however, she made a sound that alerted Karanjah for assistance. Karanjah and Angela Varney, another caregiver, removed Ivan from the room.

         At approximately 1 A.M., Karanjah heard a trainee caregiver, Jalisa Harris, call for help. Ivan and Harris were in the utility room used for soiled items. Ivan wore only a t-shirt and a diaper. Ivan held onto Harris's wrist and tried to hit her. Soiled diapers were all over the floor because Ivan had pulled them out of the garbage can. He had fecal matter on his hands. Karanjah managed to convince Ivan to let go of Harris.

         Witnesses observed Karanjah interlock Ivan's hands behind his back and push or shove him down a 200-foot long hallway to his room. Varney observed Ivan flailing his arms as Karanjah pushed him. He hit his left wrist on the doorjamb of his room. Varney saw Karanjah close the door and walk away. Varney also saw that Ivan had a red wrist that started to swell.

         Karanjah claimed she did not witness Ivan hit his wrist, and she denied holding his wrists or walking behind him. She said that she held him with her right hand on his right wrist and her left hand below his left shoulder. She also denied pushing Ivan.

          II. Procedural History

         DSHS investigated the incident and issued a report in April 2011. In the report, Corey Ellis, the director of nursing services, told investigators that Ivan was not re-directable or appropriate in his actions, and could "be very aggressive and/or combative." CP at 327.

         The parties entered into a stipulation to an informal disposition, accepted by the Secretary of Health. In the stipulation, Karanjah did not admit to any of the allegations, but she acknowledged "that a finding of unprofessional conduct or inability to practice based on the above allegations, if proven, would constitute grounds for discipline under RCW 18.130.180(4), (7) and WAC 246-841-400(4)(a), (c), (d) and (6)(g)." CP at 312. The parties did not intend the stipulation to be construed as a finding of unprofessional conduct or an inability to practice. The parties agreed that Karanjah's credentials to practice as a registered nursing assistant would be placed on probation for 12 months. Numerous conditions attached to the probation.

         On April 17, 2012, DSHS issued a notice of preliminary finding that Karanjah physically abused a vulnerable adult, Ivan. Karanjah requested a hearing to contest the matter.

         On May 31, a health law judge terminated the probation and issued a credential without conditions or limitations. Karanjah had substantially complied with the terms and conditions of the informal disposition stipulation.

         A. Initial Decisions

         An administrative law judge (ALJ) held a hearing on the contested preliminary finding. The ALJ issued findings of fact and conclusions of law and an initial order affirming DSHS's preliminary finding of physical abuse.

         Karanjah filed a petition for review with the BOA. She argued that the BOA should modify the findings of fact not supported by the evidence, conclude that no substantial evidence existed to conclude Karanjah was abusive, and correct the erroneous application of the law governing abuse.

         The BOA affirmed the ALJ's initial order. Karanjah filed a petition for judicial review of the BOA order with the superior court.

         The superior court reversed the BOA decision and remanded the case for further fact finding and legal analysis. The superior court concluded that the agency erroneously interpreted or applied the law because it failed to properly apply the holding of Brown v. Dep't. of Soc. & Health Servs., 145 Wn.App. 177, 185 P.3d 1210 (2008). It also concluded that substantial evidence did not support the BOA decision, including that Ivan sustained an injury. Finally, the superior court ruled that the BOA decision was arbitrary and capricious because the ALJ "expressly declined to consider all of the surrounding facts and circumstances, based on the existing record." CP at 547.

         The superior court ordered on remand that DSHS should determine whether Karanjah's contact or restraint of Ivan was reasonable in light of all of the surrounding circumstances, including Karanjah's obligations as a state nursing assistant, Ivan's patient history which included a history of elopement, and Ivan's risk of harm to himself and others. It also ordered the BOA to determine whether Karanjah's actions caused Ivan's injury.

         2. Remand Decisions

         By stipulation, the parties requested that the BOA remand the case to the Office of Administrative Hearings (OAH) for another evidentiary hearing. Per the stipulation, the scope of the hearing was limited to consideration of the issues specifically identified in the superior court remand order.

          The BOA remanded the matter to the OAH for a hearing. The BOA instructed the parties to provide analysis for the ALJ consistent with an unpublished decision, [3] to provide other relevant authority, and specify which finding of fact in the final order it alleged the superior court reversed.

         An ALJ conducted a new hearing. Varney, Ivan's assigned care provider, testified that on the evening in question, she heard Ivan screaming in Spanish. She observed Karanjah pushing Ivan from behind and holding his shirt for less than 20 seconds. Ivan resisted her attempts to push him forward by digging in his heels. Varney described Ivan's arms as "swinging . . . back and forth up above his head . . . almost to the side" of his body. CP at 399. Ivan flailed his arms the entire time Karanjah pushed him down the hallway. She stated that Ivan tried to grab the doorjamb to stop from going into his room, but he hit his left wrist on it. Then Karanjah put Ivan in his room, closed the door, and walked away. Varney's written statement from shortly after the incident, however, documented her saying, "Ivan's hands were loose, flailing his arms, and reaching back to get her. He probably would have hurt her." CP at 402. Varney described Ivan as a "very violent person." CP at 402.

         Karanjah testified that she never pushed Ivan, she only walked behind him. Karanjah did not leave Ivan in the hallway because he had soiled hands and he could go into other patients' rooms and spread the fecal matter. Karanjah was supposed to prevent the spread of bacteria. Kathy Weed Houck, the nursing assistant program manager for the occupational therapy board, confirmed that nursing assistants are required to prevent the spread of feces.

         The ALJ affirmed DSHS's preliminary finding that Karanjah physically abused Ivan. Karanjah filed a petition for review with the BOA.

          The BOA entered a final order affirming DSHS's preliminary finding of abuse. Its findings of fact and conclusions of law were based on the initial order on remand.

         Karanjah filed another petition for judicial review of the BOA order by the superior court. She requested reasonable attorney fees pursuant to the Washington State Equal Access to Justice Act (EAJA), RCW 4.84.350. Karanjah also filed a separate motion for attorney fees and costs pursuant to EAJA.

         The superior court set aside the BOA order and reversed DSHS's finding of physical abuse of a vulnerable adult against Karanjah. The superior court also awarded Karanjah $25, 000 for attorney fees and costs. The superior court found that DSHS's action in the matter was not substantially justified. DSHS appeals the superior court's order.

         ANALYSIS

         MOTION TO STRIKE STATEMENT OF ADDITIONAL AUTHORITY

         DSHS filed a statement of additional authority. RAP 10.8. It included one case that DSHS identified as being an unpublished case from Washington. Karanjah filed a motion to strike the statement of additional authority.

         GR 14.1(a) governs the citation to unpublished opinions and states in pertinent part, "Unpublished opinions of the Court of Appeals have no precedential value and are not binding on any court. However, unpublished opinions of the Court of Appeals filed on or after March 1, 2013, may be cited as non-binding authorities, if identified as such by the citing party, and may be accorded such persuasive value as the court deems appropriate."

         We interpret court rules in the same way as we interpret statutes and begin with the plain language of the rule. State v. Otton, 185 Wn.2d 673, 681, 374 P.3d 1108 (2016); State v. Hawkins, 181 Wn.2d 170, 183, 332 P.3d 408 (2014). The plain language of GR 14.1(a) merely requires that the citing party advise the courts that the case is unpublished.

         Karanjah cites to Crosswhite v. Dep't of Soc. & Health Servs., 197 Wn.App. 539, 544, 389 P.3d 731 (2017), that said,

[W]hen citing to unpublished opinions under GR 14.1, either in this court or in the trial court, a party must do more than simply identify the opinion as unpublished. The party must point out that the decision has no precedential value, is not binding on any court, and is cited only for such persuasive value as the court deems appropriate. The party should also cite GR 14.1.

         With due respect to the panel that decided Crosswhite, we conclude that based on the plain language of GR 14.1(a), a party may cite an unpublished case from this court and merely identify it as unpublished. Nothing more is required.

         BOA'S DECISION

          I. Washington Administrative Procedure Act (WAPA) Review

         We review this case under WAPA, chapter 34.05 RCW. This appeal is a petition for judicial review of a final agency order under RCW 34.05.570(3). RCW 34.05.570(3) states in relevant part:

The court shall grant relief from an agency order in an adjudicative proceeding only if it ...

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