Opinion
No. 93AA170.
Decided February 2, 1994.
Atkinson Burton and William L. Burton, for appellant.
Lee Fisher, Attorney General, and Stefan J. Schmidt, for appellees Ohio Bureau of Employment Services and Board of Review.
This matter is before the court for decision on the appeal of the appellant, Delilah K. Whipkey, from a decision of the Board of Review of the Ohio Bureau of Employment Services dated July 29, 1993, affirming the decision of the referee of the Ohio Bureau of Employment Services dated March 15, 1993. The appellant timely filed her notice of appeal in the above-styled action on August 26, 1993. Thereafter, on September 15, 1993, the appellant filed assignments of error. Subsequent to the filing of this action, the court established a briefing schedule. The brief of the appellant was filed on November 30, 1993. The brief of the appellees was filed on January 3, 1994. No reply briefs have been filed and the time for filing the same has expired.
The appellant was employed with Marietta Medical Care as an office manager from January 20, 1992 until September 26, 1992. Marietta Medical Care is owned and operated by Dr. Beverly Ann Rothery, M.D.
The administrator held in his decision on reconsideration mailed on December 11, 1992 that the claimant quit work with Marietta Medical Care without just cause. The appellees' referee affirmed the administrator's decision. The appellees' referee mailed his decision on March 15, 1993 and held again that the claimant quit work with Marietta Medical Care without just cause.
R.C. 4141.28(O) provides in pertinent part that:
"If the court finds that the decision was unlawful, unreasonable, or against the manifest weight of the evidence, it shall reverse and vacate such decision or it may modify such decision and enter final judgment in accordance with such modification; otherwise, such court shall affirm such decision."
Accordingly, proceedings in the court of common pleas arising under this section of law are error proceedings and are not proceedings de novo. Hall v. Am. Brake Shoe Co. (1968), 13 Ohio St.2d 11, 42 O.O.2d 6, 233 N.E.2d 582. It has long been the law of Ohio, as set forth in the case of Brown-Brockmeyer Co. v. Roach (1947), 148 Ohio St. 511, 518, 36 O.O. 167, 170, 76 N.E.2d 79, 84, that:
"The decision of purely factual questions is primarily within the province of the referee and the board of review. The courts reverse such decisions only when found to be contrary to law or against the manifest weight of the evidence. This court does not consider the question of the weight of the evidence."
On September 24, 1993, the appellees caused to be filed the administrative file in the above-styled action. Contained within this filing is a typed transcript of the hearing held before Referee Richard M. Lange in Marietta, Ohio, on March 1, 1993. A review of this transcript would reveal that Whipkey terminated her employment with Marietta Medical Care because she believed her employer was requiring her to give false statements to patients by telling them that their insurance claim forms were completed when, in reality, their uncompleted claim forms were still in the patients' files. Additionally, Whipkey was concerned because the patients' medical charts were not being kept in such a manner that would allow Marietta Medical Care to pass an audit by the Medicare or Medicaid agencies. Additionally, Whipkey had a belief that while her employer was withholding the required amounts from employee paychecks for Social Security and Medicaid deductions, these amounts were not being properly paid to the respective governmental agencies. At page 9 of the transcript of the hearing before the referee, the following discourse took place:
"Q. [Attorney Harrington] All right. And billing, what do you mean by billing?
"A. I done [ sic] all the Medicare and Medicaid claims that was [ sic] sent to Medicare and Medicaid on behalf of the patients, for the doctor.
"Q. Was there anybody else who did this or was it pretty much all you?
"A. I did it. Nobody else.
"Q. Why did you quit?
"A. I quit because I was not brought up to be dishonest to patients and when it came in that there was [ sic] lies being told to the patient, I could not do it and it got to the point where I was afraid that some of the things I was having to do, like billing from a super bill, and there was nothing in the patient's chart to back it up that if we were audited, I didn't know if I was going to be fined or what was going to happen.
"Q. You mentioned lying, what do you mean by — can you give some examples of lies you might have had to tell as part of your job?
"A. The patients were told that their insurance papers were filled out and been sent in, or disability papers, and they were not. They were still in the files, unfinished.
"Q. And was it you that would have to tell those lies?
"A. I didn't know at first that I was because I would ask the doctor if those papers were filled out. And at times she'd say, yes they were, and I'd go tell the patient that, and then later, if I had to look in the chart for any reason, maybe the patient called back and say, `They're still saying that paper's not in'. I found it in the chart, unfinished.
"Q. How did the situations make you feel?
"A. Very bad 'cause I do not like to lie.
"Q. How do you know that the bills, the way it was done, didn't necessarily comport with what you were supposed to tell the patients? How'd you know that, for instance, bills hadn't been sent in?
"A. Because — well their papers, like their insurance papers, were still in their charts. It hadn't — it hadn't been filled out. It was there.
"Q. And you saw this with your own eyes?
"A. Yes, I did.
"Q. All right. You mentioned some possible problems with the law, I think?
"A. I was afraid because of the charts not being finished. I know that Medicare and Medicaid can come in and audit an office and they just tell you they want this chart, this chart and this chart. Well if I pulled them there was nothing in the chart to back up where I had sent a bill in for the patient being there. There was nothing written in the charts.
"Q. Did you think you might be in trouble too?
"A. I was afraid that I could be because I was the one doing the billing.
"Q. You mentioned your job duties included patient communication, billing and payroll. Any problems with the payroll?
"A. The — the taxes were taken out of the checks but they were never paid in. The federal government was never paid in. Workers Comp was not paid in. Medicare was not paid in. Social Security was not paid in.
"Q. How do you know?
"A. Because I would be — wrote — would have wrote [ sic] the check and she would have signed it.
"Q. Was there ever any communication from any of these agencies to your office regarding these problems?
"A. No."
It is clear that over the course of her employment, Whipkey confronted Dr. Rothery about these problems. Her testimony at page 12 of the aforesaid transcript reveals that:
"Q. Did you — were there any other times you confronted your employer about these problems?
"A. Yes, I did different times, and I also confronted her about the charts not being done, what could happen.
"Q. Uh-huh.
"A. And — or I felt might happen. They could close her business up. She said, yes, she was aware of that, but nothing was done.
"Q. Did you make it clear this was bothering you and you had some fears?
"A. Yes, and I told her I did not like to lie to patients. I wasn't brought up that way and I could not be dishonest.
"Q. And what was her response?
"A. Not really much. She just said that she realized that, and that she really did need to do the things that I said, but they just never got done.
"Q. Well did you see any progress or any hope that things would get better?
"A. No."
In fact Dr. Rothery in her testimony before the hearing officer affirmed Whipkey's testimony about the in-house problems with her recordkeeping. At page 17 in lines 7-15, Dr. Rothery stated as follows:
"* * * As far as the charts, I do want to comment on that. And that is something that has been corrected since. I have almost caught up on back medical records, making notes. A lot of my notes — some physicians have — choose to dictate on tape and then tapes are transcribed on to records. What I have done in many cases on those charts that had nothing written on the actual chart, I have routing slips which are used both for — well mostly for billing purposes. That is something that works out with the computer system. It's comparable to the super bill idea."
Again at page 24, Dr. Rothery testified that:
"Well I'd — I guess — I don't believe that it was necessarily — I — I do admit that there was basically immoral difficult positions — difficult positions, I had placed her in as a result of my procrastination and my not being well organized and, indeed, it could be immoral. I do not believe that it is illegal, however — you know, regarding chart documentation, as far as the account. * * *"
Clearly, all of the evidence in this case reflects that whether intentionally or unintentionally the appellant was being placed in a position where she was having to lie to patients about their insurance claims not being completed because the patient charts were not completed by the doctor. Clearly, this was an ongoing problem and the only evidence in this case would reveal that the appellant complained about this problem on numerous occasions. In fact at the time of hearing before the referee, several months after appellant's termination, Dr. Rothery was still not caught up with her recordkeeping. Dr. Rothery admitted that on numerous occasions she felt she had done the charts or would be getting them done that night. In effect, Dr. Rothery admitted that she knew the charts were not done when she told the appellant to tell the patients that the charts had been done and the bills had been properly processed through the correct agency.
There is no statutory definition of the concept of "just cause." "Just cause" has been defined as conduct which a person of ordinary intelligence would consider to be justifiable reason for terminating employment. Taylor v. Ohio Unemp. Comp. Bd. of Review (1991), 76 Ohio App.3d 405, 601 N.E.2d 670. Furthermore, an individual who quits work because of a belief that continuance in the employment would violate some principle of good moral conduct may be considered to have quit with just cause. A violation of the claimant's morals includes being required to do anything which is immoral, dishonest, illegal, or unethical. Ohio Claims Handbook, Section 515.5-1, Nonmonetary Policy Guide, at 18.
In the instant case, it is uncontroverted that the working conditions at the appellant's place of employment created a moral dilemma for the appellant. Clearly, Dr. Rothery admitted this in her testimony. Lying to medical patients regarding the status of their health insurance submissions is violative of the ordinary-person standard as articulated in Taylor, supra. To lie is dishonest, immoral and unethical by all standards known to this court.
It is this court's opinion that the appellant quit her employment for just cause. It is this court's further opinion that the decisions of both the administrator and the referee are against the manifest weight of the evidence. To hold otherwise condones the practice of forcing employees of one of our most respected professions (the practice of medicine) to lie to patients. A lie is a lie. This court does not know of any way to grade lies by degree of damage done. Both the claimant/appellant and the employer/appellee admit that the appellant was placed in a position where she was forced to do acts that are considered immoral. It should not be the purpose of the law to require people to lie to maintain a living. This is so whether the lies are the result of intentional or unintentional conduct on behalf of the employer.
For all of the reasons set forth hereinabove the decision of the referee is not well taken and the same is ORDERED reversed. The appellant shall be afforded all of the benefits that she is entitled to from the Ohio Bureau of Employment Services.
So ordered.