{ "id": 9248987, "name": "NANCY YARBROUGH ALLEN, Petitioner v. NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF FACILITY SERVICES, Respondent", "name_abbreviation": "Allen v. North Carolina Department of Health & Human Services", "decision_date": "2002-12-31", "docket_number": "No. COA01-1129", "first_page": "77", "last_page": "88", "citations": [ { "type": "official", "cite": "155 N.C. App. 77" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "42 C.F.R. \u00a7 488.301", "category": "laws:admin_compilation", "reporter": "C.F.R.", "opinion_index": -1 }, { "cite": "N.C. Gen. Stat. \u00a7 131", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "704 A.2d 1181", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 11883296 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "1183" }, { "page": "1183", "parenthetical": "reaching the same conclusion where nurse aide roughly pulled and rebuked an elderly patient, but there was no evidence to show that patient suffered physical harm or pain" } ], "opinion_index": 0, "case_paths": [ "/a2d/704/1181-01" ] }, { "cite": "42 C.F.R. \u00a7 483.13", "category": "laws:admin_compilation", "reporter": "C.F.R.", "pin_cites": [ { "page": "(c)(1)(II)(B)" } ], "opinion_index": 0 }, { "cite": "42 C.F.R. \u00a7 483.156", "category": "laws:admin_compilation", "reporter": "C.F.R.", "opinion_index": 0 }, { "cite": "42 U.S.C. \u00a7 1395", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(c) et seq." } ], "opinion_index": 0 }, { "cite": "435 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "363", "parenthetical": "\"Where the trial court should have utilized de novo review, this Court will directly review the agency's decision under a de novo review standard[]\"" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 161", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520617 ], "year": 1993, "pin_cites": [ { "page": "165", "parenthetical": "\"Where the trial court should have utilized de novo review, this Court will directly review the agency's decision under a de novo review standard[]\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0161-01" ] }, { "cite": "451 S.E.2d 635", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "338 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519209, 2520269, 2519598, 2518574, 2519998 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/338/0309-05", "/nc/338/0309-02", "/nc/338/0309-03", "/nc/338/0309-01", "/nc/338/0309-04" ] }, { "cite": "446 S.E.2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "388" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 590", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12137315 ], "year": 1994, "pin_cites": [ { "page": "597" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0590-01" ] }, { "cite": "432 S.E.2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "136", "parenthetical": "\"an agency has the ability to reject the recommended decision of an administrative law judge\"" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 730", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526373 ], "year": 1993, "pin_cites": [ { "page": "737", "parenthetical": "\"an agency has the ability to reject the recommended decision of an administrative law judge\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0730-01" ] }, { "cite": "462 S.E.2d 511", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "G.S. \u00a7 150B-43 provides only judicial review of final agency decisions, and recommended decisions of the ALJ and State Personnel Commission were merely advisory" } ], "opinion_index": 0 }, { "cite": "341 N.C. 649", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793220, 793188, 793196, 793104, 793244 ], "year": 1995, "pin_cites": [ { "parenthetical": "G.S. \u00a7 150B-43 provides only judicial review of final agency decisions, and recommended decisions of the ALJ and State Personnel Commission were merely advisory" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0649-03", "/nc/341/0649-04", "/nc/341/0649-01", "/nc/341/0649-05", "/nc/341/0649-02" ] }, { "cite": "457 S.E.2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "899", "parenthetical": "G.S. \u00a7 150B-43 provides only judicial review of final agency decisions, and recommended decisions of the ALJ and State Personnel Commission were merely advisory" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 62", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11913588 ], "year": 1995, "pin_cites": [ { "page": "72", "parenthetical": "G.S. \u00a7 150B-43 provides only judicial review of final agency decisions, and recommended decisions of the ALJ and State Personnel Commission were merely advisory" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0062-01" ] }, { "cite": "163 S.E.2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "357", "parenthetical": "\"An appellate court is not required to, and should not, assume error by the trial judge when none appears on the record before the appellate court[]\"" } ], "opinion_index": 0 }, { "cite": "274 N.C. 328", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560069 ], "year": 1968, "pin_cites": [ { "page": "333", "parenthetical": "\"An appellate court is not required to, and should not, assume error by the trial judge when none appears on the record before the appellate court[]\"" } ], "opinion_index": 0, "case_paths": [ "/nc/274/0328-01" ] }, { "cite": "298 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "645" } ], "opinion_index": 0 }, { "cite": "307 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562282 ], "year": 1983, "pin_cites": [ { "page": "341" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0321-01" ] }, { "cite": "272 S.E.2d 911", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "915" } ], "opinion_index": 0 }, { "cite": "50 N.C. App. 112", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2677519 ], "year": 1980, "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/nc-app/50/0112-01" ] }, { "cite": "443 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "118" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527936 ], "year": 1994, "pin_cites": [ { "page": "674" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0668-01" ] }, { "cite": "483 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "392", "parenthetical": "quoting Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994)" } ], "opinion_index": 0 }, { "cite": "345 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53839 ], "year": 1997, "pin_cites": [ { "page": "706", "parenthetical": "quoting Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994)" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0699-01" ] }, { "cite": "429 S.E.2d 716", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 786", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2545497 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0786-01" ] }, { "cite": "233 S.E.2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "541" } ], "opinion_index": 0 }, { "cite": "292 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569880 ], "year": 1977, "pin_cites": [ { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0406-01" ] }, { "cite": "421 S.E.2d 163", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "166", "parenthetical": "quoting Thompson v. Board of Education, 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977)" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 543", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527776 ], "year": 1992, "pin_cites": [ { "page": "550", "parenthetical": "quoting Thompson v. Board of Education, 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0543-01" ] }, { "cite": "477 S.E.2d 37", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "344 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867530, 867637, 867578, 867644, 867710 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0629-03", "/nc/344/0629-04", "/nc/344/0629-05", "/nc/344/0629-01", "/nc/344/0629-02" ] }, { "cite": "468 S.E.2d 557", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "559" }, { "page": "559", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 58", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915396 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "62" }, { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0058-01" ] }, { "cite": "559 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 580", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138530, 138444, 138567 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0580-01", "/nc/354/0580-03", "/nc/354/0580-02" ] }, { "cite": "550 S.E.2d 552", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "558" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 264", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11437066 ], "year": 2001, "pin_cites": [ { "page": "274" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0264-01" ] }, { "cite": "513 S.E.2d 70", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "73" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 465", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238567 ], "year": 1999, "pin_cites": [ { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0465-01" ] }, { "cite": "528 S.E.2d 927", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "929", "parenthetical": "quoting Whiteco Outdoor Adver. v. Johnston County Bd. of Adjust., 132 N.C. App. 465, 468, 513 S.E.2d 70, 73 (1999)" }, { "page": "929", "parenthetical": "providing that it is the superior court's duty to \"make its own findings of fact and conclusions of law\" when conducting de novo review" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 575", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11094894 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "577", "parenthetical": "quoting Whiteco Outdoor Adver. v. Johnston County Bd. of Adjust., 132 N.C. App. 465, 468, 513 S.E.2d 70, 73 (1999)" }, { "page": "577" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0575-01" ] }, { "cite": "426 S.E.2d 704", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2544164, 2548168, 2549997, 2550157, 2549425 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0343-05", "/nc/333/0343-04", "/nc/333/0343-03", "/nc/333/0343-01", "/nc/333/0343-02" ] }, { "cite": "421 S.E.2d 612", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "613" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 716", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527935 ], "year": 1992, "pin_cites": [ { "page": "719" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0716-01" ] }, { "cite": "42 C.F.R. \u00a7 488.301", "category": "laws:admin_compilation", "reporter": "C.F.R.", "weight": 3, "pin_cites": [ { "parenthetical": "incorporated by reference at 10 N.C.A.C. 3B. 1001(1)" }, { "parenthetical": "as incorporated by reference at 10 N.C.A.C. 3B.1001(1)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1036, "char_count": 27315, "ocr_confidence": 0.759, "pagerank": { "raw": 2.0993038655706752e-07, "percentile": 0.7614679465868474 }, "sha256": "9b66952c923cbad7b36816509e96c9263aa1e85dde6509ecadb400f2a6cfb97b", "simhash": "1:a5caf2fa1c9a2876", "word_count": 4489 }, "last_updated": "2023-07-14T20:08:10.559314+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and Judge WALKER concur." ], "parties": [ "NANCY YARBROUGH ALLEN, Petitioner v. NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF FACILITY SERVICES, Respondent" ], "opinions": [ { "text": "BIGGS, Judge.\nThis appeal arises out of the entry of a finding of abuse of a patient by petitioner (Nancy Allen) a certified nurse aide, in the Nurse Aide Registry and the Health Care Personnel Registry. The evidence tends to show that petitioner and Misty Gray, another nurse aide, were transferring a nursing home resident, M.M., (the resident\u2019s initials are used in this opinion to preserve her right to privacy under N.C.G.S. \u00a7 \u00a7 131D-2(b)(4) and -21(6)), from her wheelchair to a shower chair for a bath, when M.M. became combative and hit petitioner on the hand. After the transfer was made, Gray went to the sink to wash her hands. As petitioner was removing M.M.\u2019s sock, M.M. kicked her. In response, petitioner said, \u201cIf you kick me, I will knock the f \u2014 king hell out of you.\u201d Gray turned around and observed M.M. kicking petitioner\u2019s legs. Gray finished washing her hands, and exited the room to report petitioner\u2019s actions to Staff Development Coordinator Nurse Mariel Ramos. Later that day, petitioner approached Gray and asked, \u201cYou told didn\u2019t you?\u201d Gray denied having reported the incident and told petitioner that Ramos had been standing outside of the shower room door when the incident occurred.\nRamos subsequently informed Susan King, the Director of Nursing, of the incident. After King confirmed Ramos\u2019 account of the incident with Gray, King went to the patient\u2019s unit to further investigate. King examined M.M. and although she noted some old bruises, she did not observe any new injuries. King\u2019s attempts to interview M.M., who had been diagnosed with Alzheimer\u2019s and seemed confused, were unsuccessful. King then held a meeting with petitioner, to obtain her version of the incident. Ramos and Robin Phillips, the Assistant Director of Nurses, were also present at this meeting. When confronted with the allegation that she had cursed M.M. in violation of nursing home policy, petitioner responded, \u201cThat\u2019s a damn lie.\u201d Petitioner indicated that she knew that it was Gray who had reported her. When King revealed that Gray told her that petitioner had threatened to \u201cknock the fu \u2014 king hell out of [M.M.],\u201d petitioner denied making such a statement. Petitioner explained that M.M. kicked at her and in response she said, \u201cYou\u2019ve kicked the hell out of my hand and, if you kick me again, I\u2019m going to have to pinch your foot off.\u201d King admonished petitioner, explaining that she considered the allegation to be very serious. She reiterated to petitioner that staff was not permitted to curse or threaten residents of the nursing home. In response to King\u2019s request, petitioner submitted a written statement of the incident, in which she said that M.M. tried to kick her, and that she told M.M., \u201cYou knocked the hell out of my hand. Quit trying to kick me. If you kick me in the face, 1 don\u2019t know what I will have to do to you.\u201d\nKing reported the incident to Health Care Personnel Registry Section (hereinafter \u201cthe HCPR section\u201d) of the Department of Health and Human Services, Division of Facility Services (DHHS). Bonnie Nottoli, R.N., an investigator for the HCPR section, was assigned to investigate the matter. During her investigation, Nottoli interviewed petitioner, King, Phillips, Ramos, and Betty Stevens, a former Quality Assurance Director and Administrator at the nursing home who had previously worked with petitioner. When interviewed by Nottoli, petitioner told her that the statement she made to M.M. was, \u201cIf you kick me in the face, little girl, I just don\u2019t know what I might have to do to you.\u201d Notolli also reviewed various nursing home documents pertinent to the incident. The investigator was unable to locate Gray for an interview.\nBased upon the information obtained during Nottoli\u2019s investigation, the HCPR section concluded that on 12 August 1999, petitioner verbally abused M.M. by stating, \u201cYou\u2019ve kicked the hell out of me and if you do it again I\u2019ll have to pinch your foot off.\u201d By letter dated 13 March 2000, the HCPR section notified petitioner that an allegation of abuse had been substantiated against her, and that the substantiated allegation would be entered into the Nurse Aide Registry and the Health Care Personnel Registry.\nPetitioner filed a petition for a contested case hearing in the Office of Administrative Hearings to appeal the agency\u2019s decision on 24 March 2000. A hearing was conducted before an Administrative Law Judge (ALJ) on 24 May 2000. The ALJ recommended that the HCPR section\u2019s decision be upheld. Both petitioner and the HCPR section filed exceptions to the recommended decision, whereupon DHHS issued a final decision, affirming the HCPR section\u2019s determination that petitioner abused M.M. on the morning of 12 April 1999. Petitioner petitioned the Orange County Superior Court for judicial review, pursuant to N.C.G.S. \u00a7 150B-45. After hearing the arguments of counsel and reviewing the evidence of record, the superior court affirmed the final decision of DHHS. Petitioner appeals.\nThis Court must now review the superior court\u2019s order for errors of law. Crowell Constructors, Inc. v. N.C. Dep\u2019t of E.H.N.R., 107 N.C. App. 716, 719, 421 S.E.2d 612, 613 (1992), disc. review denied, 333 N.C. 343, 426 S.E.2d 704 (1993). In conducting such review, we first \u201c \u2018determine whether the trial court exercised the proper scope of review,\u2019 \u201d and then \u201c \u2018whether the trial court correctly applied this scope of review.\u2019 \u201d Jordan v. Civil Serv. Bd. of Charlotte, 137 N.C. App. 575, 577, 528 S.E.2d 927, 929 (2000) (quoting Whiteco Outdoor Adver. v. Johnston County Bd. of Adjust., 132 N.C. App. 465, 468, 513 S.E.2d 70, 73 (1999)). The appropriate standard of review turns upon the nature of the error asserted by appellant. \u201cIf appellant argues that the agency\u2019s decision was based on an error of law, then \u2018de novo\u2019 review is required. If, however, appellant questions (1) whether the agency\u2019s decision was supported by the evidence, or (2) whether the decision was arbitrary or capricious, then the reviewing court must apply the \u2018whole record\u2019 test.\u201d This Court\u2019s scope of review \u201cis the same as that utilized by the trial court.\u201d Wallace v. Board of Tr., 145 N.C. App. 264, 274, 550 S.E.2d 552, 558, disc. review denied, 354 N.C. 580, 559 S.E.2d 553 (2001).\n\u201c \u2018De novo\u2019 review requires a court to consider a question anew, as if not considered or decided by the agency.\u201d Dorsey v. UNC-Wilmington, 122 N.C. App. 58, 62, 468 S.E.2d 557, 559, cert. denied, 344 N.C. 629, 477 S.E.2d 37 (1996). In conducting de novo review, \u201c[t]he court may freely substitute its own judgment for that of the agency.\u201d Dorsey, 122 N.C. App. at 62, 468 S.E.2d at 559 (citation omitted). Conversely, \u201c \u2018[th]e \u201cwhole record\u201d test does not allow the reviewing court to replace the [Agency\u2019s] judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different result had the matter been before it de novo.\u2019 \u201d North Carolina State Bar v. Nelson, 107 N.C. App. 543, 550, 421 S.E.2d 163, 166 (1992) (quoting Thompson v. Board of Education, 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977)), aff\u2019d, 333 N.C. 786, 429 S.E.2d 716 (1993). Indeed, the \u2018whole record\u2019 test requires only that the trial court \u201c \u2018examine all competent evidence (the \u201cwhole record\u201d) in order to determine whether the agency decision is supported by \u2018substantial evidence.\u2019 \u201d ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (quoting Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994)).\nBy her first, second, fourth, and eighth assignments of error, petitioner contends that (1) the superior court erred in affirming the DHHS\u2019s sixth finding of fact; (2) the court\u2019s review was limited to issues of law, and therefore, the court erred in making its own factual findings, and (3) the sixth finding of fact did not form the basis of the court\u2019s decision, and therefore, the finding was \u201cirrelevant and unduly prejudicial.\u201d\nThese assignments of error and arguments require application of the \u201cwhole record\u201d test, which the record reveals was the standard employed by the superior court. We next determine whether the superior court properly applied the \u201cwhole record\u201d test in its review of DHHS\u2019s final order.\nDHHS\u2019s sixth finding of fact was as follows:\nOn August 12, 1999 while Ms. Gray and Petitioner were transferring Resident M.M. from her wheelchair to the shower chair, the resident became combative and hit Petitioner on the hand. Petitioner responded to the resident by stating, \u201cIf you kick me, I will knock the f \u2014 king hell out of you.\u201d Ms. Gray promptly reported the incident to Ms. Phillips and Ms. King.\nPetitioner contends that DHHS erred in making such a finding (and, in turn, that the superior court erred in affirming that finding) because the AU failed to make such a finding in his recommended decision. We note, however, that petitioner has failed to include the AU\u2019s recommended decision to facilitate review of this contention, in violation of N.C.R. App. P. 9(a)(2).\nIt is well settled that the appellant has the duty to see that the record on appeal is properly compiled, and to make error appear on the face of the record. Tucker v. General Tel. Commission. of the Southeast, 50 N.C. App. 112, 118, 272 S.E.2d 911, 915 (1980). Absent such a showing, this Court must presume that the tribunal below ruled properly. State v. Alston, 307 N.C. 321, 341, 298 S.E.2d 631, 645 (1983). In the instant case, where petitioner has failed to include a copy of the ALJ\u2019s recommended decision, and the record shows that the superior court reviewed the official record in this case, and weighed its contents, we will not speculate and assume error where none appears. See State v. Williams, 274 N.C. 328, 333, 163 S.E.2d 353, 357 (1968) (\u201cAn appellate court is not required to, and should not, assume error by the trial judge when none appears on the record before the appellate court[]\u201d).\nFurther, even if the recommended decision were properly included in the record, and it revealed that, as petitioner contends, the ALJ did not include the subject finding in his recommended decision, we note that a recommended decision is only advisory. See Gray v. Orange County Health Dep\u2019t, 119 N.C. App. 62, 72, 457 S.E.2d 892, 899, disc. review denied, 341 N.C. 649, 462 S.E.2d 511 (1995) (G.S. \u00a7 150B-43 provides only judicial review of final agency decisions, and recommended decisions of the ALJ and State Personnel Commission were merely advisory); see also Davis v. N. C. Dept. of Human Resources, 110 N.C. App. 730, 737, 432 S.E.2d 132, 136 (1993) (\u201can agency has the ability to reject the recommended decision of an administrative law judge\u201d). \u201cEven though the administrative law judge ha[s] already made findings of fact and conclusions of law, the Personnel Commission ha[s] the ability to make its own findings of fact and conclusions of law if it cho[oses] to do so.\u201d Id. An agency (in this case DHHS), as the ultimate factfinder, is vested with full authority to accept or reject any or all of the findings of fact and conclusions of law contained in a recommended decision of an administrative law judge, and make its own findings and conclusions. Eury v. N.C. Employment Security Comm\u2019n, 115 N.C. App. 590, 597, 446 S.E.2d 383, 388, disc. review denied, 338 N.C. 309, 451 S.E.2d 635 (1994). Accordingly, DHHS cannot be said to have erred in making finding of fact #6, and the superior court cannot be said to have erred in affirming that finding, merely because the finding was not made by the ALL\nMore importantly, after reviewing the record as it is before us, we conclude that there was substantial evidence to support the subject finding. Petitioner denied having made such a statement during the nursing home\u2019s internal investigation and the HCPR section\u2019s subsequent investigation. However, Gray, who was present at the time of the 12 August 1999 incident, immediately reported the incident to her superiors at the nursing home. In addition, Gray testified regarding the incident. At all times, she maintained that petitioner threatened to \u201cknock the f \u2014 eking hell out of [M.M],\u201d if M.M. kicked her. In light of this evidence, we conclude the superior court did not err in affirming DHHS\u2019s sixth finding of fact.\nAs to petitioner\u2019s argument that the superior court erred in making its own finding of fact regarding the statement made to M.M. during the 12 August 1999 incident, we note that the superior court\u2019s finding was merely a recapitulation, as is permitted, of DHHS\u2019s finding of fact #6. The court was merely reiterating this finding in the course of conducting a de novo review of petitioner\u2019s claim that DHHS committed an error of law in concluding that petitioner abused M.M. See Jordan, 137 N.C. App. at 577, 528 S.E.2d at 929 (providing that it is the superior court\u2019s duty to \u201cmake its own findings of fact and conclusions of law\u201d when conducting de novo review).\nFinally, we reject petitioner\u2019s argument that finding of fact #6 was irrelevant and highly prejudicial. Rule 401 of the Rules of Evidence defines relevant evidence as that \u201cevidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. N.C.G.S. \u00a7 8C-1, Rule 401. As discussed earlier, there was competent evidence in the record to support the finding and it was certainly probative of the ultimate issue of whether petitioner abused M.M. In addition, petitioner has failed to demonstrate prejudice. These assignments of error are, therefore, overruled.\nBy her seventh and final assignment of error, petitioner argues that the superior court erred in concluding that petitioner abused M.M. Petitioner contends that, as a matter of law, petitioner\u2019s statement to M.M. is not sufficiently egregious to constitute abuse.\nAs acknowledged by petitioner, the issue presented by this assignment of error is one requiring de novo review, since petitioner asserts that the court\u2019s decision was legally infirm. The record shows that the superior court utilized de novo review in addressing this issue on appeal from DHHS\u2019s final decision, and therefore, we are left only to determine if the court properly applied that standard. We look then at DHHS\u2019s decision to determine whether an error of law was committed. See In re Appeal by McCrary, 112 N.C. App. 161, 165, 435 S.E.2d 359, 363 (1993) (\u201cWhere the trial court should have utilized de novo review, this Court will directly review the agency\u2019s decision under a de novo review standard[]\u201d).\nThe 12 August 1999 incident was investigated by the HCPR section, in accordance with N.C.G.S. \u00a7 131E-255 and 131E-256. See N.C.G.S. \u00a7 131E-255-257 (2001) (enacted following Congressional passage of the Omnibus Budget Reconciliation Act of 1987, 42 U.S.C. \u00a7 1395(c) et seq.). Federal regulations require that states list substantiated findings of abuse, neglect and misappropriation of resident property by nurse aides in their respective state registries. 42 C.F.R. \u00a7 483.156. In order to participate in Medicare and Medicaid programs, federal regulations require that health care facilities comply with a federal prohibition against hiring any nurse aide who has a finding of abuse, neglect, or misappropriation of property on the Nurse Aide Registry. 42 C.F.R. \u00a7 483.13(c)(1)(II)(B).\nFor purposes of investigating complaints of abuse, the HCPR section has adopted the federal definition of abuse:\n\u201cAbuse\u201d means the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.\n42 C.F.R. \u00a7 488.301 (incorporated by reference at 10 N.C.A.C. 3B. 1001(1)). Petitioner contends that the \u201csingle isolated, albeit unwise and ill-advised remark\u201d spoken by her to M.M. on 12 August 1999 could not have been intended to constitute \u201cabuse,\u201d under 42 C.F.R. \u00a7 488.301, as incorporated by reference at 10 N.C.A.C. 3B. 1001(1). The State, however, submits that such a position is wholly unsupported by any case or statutory law. In fact, the State references 42 U.S.C. \u00a7 1395i-3(g)(l)(D), in support of a contrary position. The State posits that this particular section of the United States Code, which allows nurse aides who have a single finding of neglect to apply to have that finding removed, supports a conclusion that Congress did intend that a single incidence of abuse be listed in the registry. We note also that neither the absence of threatening gestures or physical contact by the nurse aide, or the victim\u2019s awareness of resulting physical harm or mental anguish, is dispositive. The cases referenced by petitioner in support of arguments to the contrary involve either physical contact or different definitions of abuse, and are, therefore, neither instructive nor persuasive. As noted by the Health Care Financing Administration, in responding to a public comment that there should be a requirement that a long-term care resident actually perceive the conduct as abusive:\nWe do not accept this comment. Our obligation is to protect the health and safety of every resident, including those who are incapable of perception or are unable to express themselves. This presumes that instances of abuse of any resident, whether cognizant or not, cause physical harm, pain or mental anguish.\n59 F.R. \u00a7 56130 (1994) (emphasis added). While petitioner\u2019s behavior might not be the most egregious instance of abuse, like the District of Columbia Court of Appeals in Hearns v. District of Columbia Dep\u2019t of Consumer & Regulatory Affairs, we believe that in the context of this extremely regulated profession and the patient\u2019s dependency on a person in the trusted position of nurse aide, \u201cthe definition of \u2018abuse\u2019 . . . may fairly be understood to reach behavior short of more flagrant forms dealt with in other settings.\u201d 704 A.2d 1181, 1183 (1997).\nIn the instant case, the DHHS made the following findings:\n1. At all times relevant to this contested case, Petitioner, a certified nurse aide, . . . was employed as a health care personnel at Sunbridge Nursing Home.\n2. Sunbridge is a nursing home facility licensed by the State of North Carolina and as such is a health care facility as defined in N.C. Gen. Stat. \u00a7 131E-256(b)(6).\n3. At all times relevant to this matter, Misty Gray was employed as a CNA at Sunbridge.\n4. At all times relevant to this matter, Susan King was employed as the Director of Nurses at Sunbridge.\n5. At all times relevant to this matter, Robin Phillips was employed as the Assistant Director of Nurses at Sunbridge.\n6. On August 12, 1999, while Ms. Gray and Petitioner were transferring Resident M.M. from her wheelchair to the shower chair, the resident became combative and hit Petitioner on the hand. Petitioner responded to the resident by stating, \u201cIf you kick me, I will knock the f \u2014 king hell out of you.\u201d Ms. Gray promptly reported the incident to Ms. Phillips and Ms. King.\n7. On behalf of Sunbridge, Ms. Phillips and Ms. King conducted the in-house investigation with respect to the allegation of abuse by Petitioner to Resident M.M. During the investigation, Ms. Phillips and Ms. King confronted Petitioner about the reported allegation of abuse. Petitioner denied making the statement, \u201cIf you kick me, I will knock the f \u2014 king hell out of you.\u201d Petitioner admitted to Ms. Phillips and Ms. King that she made the following statement to Resident M.M: \u201cYou kicked the hell out of me, if you do it again I\u2019m going to pinch your damn foot off.\u201d\n8. At the conclusion of the conference, it was requested that Petitioner provide a written statement of the incident. Petitioner testified that she provided a written statement to Sunbridge and the content of the statement which she made to Resident M.M. was as follows: Petitioner admitted making the following statement to M.M., \u201cIf you kick me in the face, I don\u2019t know what I might have to do.\u201d\n9. On August 12, 1999, Ms. King submitted a report to the Health Care Personnel Registry Section which alleged that Petitioner had abused M.M.\n10. Respondent reviewed the report submitted by Sunbridge with respect to the allegation of abuse and concluded that the allegation warranted investigation.\n11. On behalf of Respondent, Bonnie Nottoli, investigated the allegation of abuse. As part of her investigation, Ms. Nottoli interviewed Petitioner. Petitioner denied making the statements as reported by Ms. Gray, Ms. Phillips and Ms. King. During it\u2019s investigation, Respondent determined that Petitioner verbally abused Resident (\u201cM.M.\u201d) by saying to her, \u201cYou\u2019ve kicked the hell out of me and if you do it again, I\u2019ll have to pinch your foot off.\u201d\n12. By letter date[d] March 13, 2000, Respondent notified Petitioner that the Department had substantiated an allegation of abuse against Petitioner and that the substantiated finding would be entered into the Nurse Aide Registry and Health Care Personnel Registry. . . .\n13. \u201cAbuse\u201d is defined by 42 CFR Part 488 Subpart E which is incorporated by reference, in 42 CFR 488.301, as follows:\n\u201cAbuse\u201d means the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish.\nBased upon these findings, DHHS reached the following pertinent conclusions:\n3. The North Carolina Department of Health and Human Services, Division of Facility Services, Health Care Personnel Registry Section is required by N.C. Gen. Stat. \u00a7 131E-255 to maintain a Registry that contains the names of all nurse aides working in nursing homes who are subject to a finding by the Department that they abused a nursing home resident.\n4. As a certified nurse aide, Petitioner is subject to the provisions of N.C. Gen. Stat. \u00a7 131E-255.\n5. The North Carolina Department of Health and Human Services, Division of Facility Services, Health Care Personnel Registry Section is required by N.C. Gen. Stat. \u00a7 131E-256 to maintain a Registry that contains the names of all health care personnel working in health care facilities who are subject to a finding by the Department that they abused a resident in a health care facility or who have been accused of abusing a resident if the Department has screened the allegation and determined that an investigation is warranted.\n6. As a health care personnel, Petitioner is subject to the provisions of N.C. Gen. Stat. \u00a7 131E-256.\n7. Sunbridge, a nursing home, is a health care facility as defined in N.C. Gen. Stat. \u00a7 131[E]-256(b)(6).\n8. On August 12, 1999, Petitioner abused Resident M.M. when she stated to her, \u201cYou\u2019ve kicked the hell out of me, and if you do it again, I\u2019ll have to pinch your foot off.\u201d\n9. Respondent did not err in substantiating the finding of abuse against Petitioner.\nDHHS then determined that a finding of abuse against petitioner had been properly listed in the Nurse Aide Registry and the Health Care Personnel Registry. We note that the superior court\u2019s findings and conclusions are essentially a restatement of those of DHHS.\nLooking at this matter anew, as we are required to do on de novo review, we conclude that the superior court did not err in affirming DHHS\u2019s determination that petitioner abused M.M. Though the record discloses various accounts of the exact statement made to M.M. by petitioner, the evidence is uncontroverted that petitioner made some statement of a threatening nature to her patient M.M. While there was no evidence of record that petitioner\u2019s threats resulted in physical harm or pain to M.M., petitioner\u2019s threat to do violence to the elderly Alzheimer\u2019s patient is certainly sufficient evidence from which a rational factfinder could determine it was such as to cause that patient \u201cmental anguish.\u201d See Hearns v. District of Columbia Dep\u2019t of Consumer & Regulatory Affairs, 704 A.2d 1181, 1183 (1997) (reaching the same conclusion where nurse aide roughly pulled and rebuked an elderly patient, but there was no evidence to show that patient suffered physical harm or pain). Accordingly, we conclude that DHHS properly determined that petitioner\u2019s actions constituted abuse within the meaning of 42 C.F.R. \u00a7 488.301 (as incorporated by reference at 10 N.C.A.C. 3B.1001(1)). Therefore, the superior court did not err in affirming the decision of DHHS.\nHaving so concluded, the order of the superior court is affirmed.\nAffirmed.\nChief Judge EAGLES and Judge WALKER concur.", "type": "majority", "author": "BIGGS, Judge." } ], "attorneys": [ "Daniel F. Read and Maria J. Mangano, for petitioner-appellant.", "Attorney General Roy Cooper, by Assistant Attorneys General June S. Ferrell and Jane L. Oliver, for respondent-appellee." ], "corrections": "", "head_matter": "NANCY YARBROUGH ALLEN, Petitioner v. NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF FACILITY SERVICES, Respondent\nNo. COA01-1129\n(Filed 31 December 2002)\n1. Nurses \u2014 nurse aide \u2014 abuse\u2014verbal threat \u2014 elderly nursing home resident\nThe trial court did not err in an action arising out of the alleged abuse of an elderly nursing home resident by affirming the Department of Health and Human Services\u2019 (DHHS) finding of fact that petitioner nurse aid threatened the nursing home resident after the resident hit petitioner, because: (1) petitioner has failed to include a copy of the Administrative Law Judge\u2019s recommended decision, the record shows the trial court reviewed the official record and weighed its contents, and our Court of Appeals will not speculate and assume error where none appears; (2) even if the recommended decision was properly included in the record, the decision is only advisory and an agency such as DHHS is vested with full authority to accept or reject any or all of the findings of fact and conclusions of law contained in a recommended decision; (3) there was substantial evidence to support the subject finding when another nurse aid who was present at the time of the incident immediately reported the incident, testified regarding the incident, and maintained the same story; (4) contrary to petitioner\u2019s assertion that the trial court erred by making its own finding of fact regarding petitioner\u2019s statement, the trial court\u2019s finding was merely a recapitulation of DHHS\u2019s finding; (5) the evidence was probative of the ultimate issue of whether petitioner abused the nursing home resident; and (6) petitioner has failed to show prejudice.\n2. Nurses \u2014 nurse aide \u2014 abuse\u2014threat of violence \u2014 elderly nursing home resident \u2014 mental anguish\nA de novo review revealed that the trial court did not err by concluding that petitioner nurse aid abused an elderly nursing home resident within the meaning of 42 C.F.R. \u00a7 488.301, because: (1) though the record disclosed various accounts of the exact statement made to the resident by petitioner, the evidence is uncontroverted that petitioner made some statement of a threatening nature to her patient; and (2) while there was no evidence of record that petitioner\u2019s threats resulted in physical harm or pain to the patient, petitioner\u2019s threat to do violence to the elderly Alzheimer\u2019s patient is sufficient evidence from which a rational factfinder could determine it was such as to cause that patient mental anguish.\nAppeal by petitioner from order entered 6 August 2001 by Judge A. Leon Stanback, Jr. in Orange County Superior Court. Heard in the Court of Appeals 10 June 2002.\nDaniel F. Read and Maria J. Mangano, for petitioner-appellant.\nAttorney General Roy Cooper, by Assistant Attorneys General June S. Ferrell and Jane L. Oliver, for respondent-appellee." }, "file_name": "0077-01", "first_page_order": 107, "last_page_order": 118 }