ALJDEC decisions subject to certification as final

07A-082707B-MRT · Medical Radiologic Technology Board of Examiners · 2007-09-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 24, 2007 APPEARANCES: Mary DeLaat Williams, Assistant Attorney General, appeared for the State. No one appeared for the Respondent. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. This matter came on for hearing as scheduled. Counsel for the Arizona Medical Radiologic Technology Board of Examiners (Board) was present and prepared to proceed. 2. The Respondent failed to appear. Certified mail sent to the Respondent’s address of record was not picked up and no return receipt has been received by the Board. 3. Sarah Penttinen (Penttinen), Board Investigator, conducted an investigation of the Respondent, Tamara Dias (Dias), after receiving a complaint from CIGNA HealthCare of Arizona (Cigna). 4. Based on Penttinen’s investigation and testimony, the following salient facts are submitted. 5. Dias has held a certificate issued by the Board since 1995. She currently holds two Board issued certificates (general X-ray/CT and mammography). 6. The Respondent’s Cigna supervisor(s) had concerns regarding the Respondent’s work performance since she was hired in 2006. 7. The Respondent had transferred to Cigna’s C.J. Harris facility from another Cigna facility, on August 13, 2007. 8. On August 16, 2007, Cigna staff reported the smell of alcohol on the Respondent’s breath while at work. 9. When confronted, the Respondent claimed the smell was caused by a dental oral rinse, chlorhexidine gluconate. 10. By letter purported to be from her doctor, and dated August 17, 2007, the Respondent attempted to claim the breath odor was due to medication. The letter is a forgery submitted by the Respondent. 11. On August 22, 2007, the Respondent submitted to two breathalyzer tests at noontime approximately 16 minutes apart. The first test showed a blood alcohol content of 0.112 percent and the second 0.100 percent. The legal limit for Driving Under the Influence is 0.08 percent. The Respondnet was placed on administrative leave. 12. On August 27, 2007, CIGNA terminated the Respondent effective August 22, 2007. 13. On August 27, 2007, Board staff received a report from Cigna setting forth the Respondent’s positive breathalyzer results and the falsified physician’s letter. 14. On August 27, 2007, Penttinen spoke with the Respondent by telephone. The Respondent stated she was using an oral rinse four to five times a day and that it was given to her by a dentist identified as Dr. Gayona. The Respondent denied falsifying the letter from her doctor’s office. She further denied drinking alcohol in the past seven months. 15. Dr. Sam Palmer, Chief Investigator for the Arizona Board of Medical Examiners and a licensed dentist, testified that it was highly unlikely that the chlorhexidine gluconate was responsible for either the odor of alcohol or the Respondent’s breathalyzer results. In addition, Dr. Palmer could not find a Dr. Goyana listed in the Dental Board’s records. 16. On August 31, 2007, the Board met to consider the Respondent’s case. It found that public health, safety, and welfare required emergency action and voted to summarily suspend the Respondent’s certificate, numbers CRT 6456 and CMT 1579 by Order dated September 4, 2007. Conclusions of Law The Board has jurisdiction of this matter by virtue of A.R.S. §32- 2801 et seq. A.R.S. §32-2821(A) provides for revocation or suspension of a certificate for: “(7) Unethical professional conduct”; which under A.R.S. §32-2801(17) means: (b) “…use of alcohol to the extent that it affects the ability of the certificate or permit holder to practice his profession. (k)Knowingly making any false or fraudulent statement, written or oral, in connection with the practice of radiologic technology. (m)Any conduct or practice which does or would constitute a danger to the health of the patient or the public. 1. The State has the burden of proof by a preponderance of the evidence under Culpepper v. State, 187 Ariz. 431 (1996 App.) and A.A.C. R2- 19-119. 2. A “preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence, §5 (1960). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary, 1182 (6th ed. 1990). 3. The evidence in an administrative hearing must be “substantial, reliable, and probative” (A.R.S. §41-1092.07(F)(1)). This means the State has the affirmative responsibility to present sufficient competent evidence to meet the preponderance standard. The less demanding evidentiary standard in the administrative hearing does not mean that any type of evidence is entitled to serious consideration or significant weight. Although hearsay is admissible in administrative proceedings, the hearsay must be of a nature which would strongly indicate, if not establish, the information is accurate and reliable. 4. “Substantial evidence is evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues tendered can be reasonably resolved.” Black’s Law Dictionary, Special Deluxe Fifth Edition, (St. Paul Minn.: West Publishing Co., 1979) p. 1281, citing State v. Green, 218 Kan. 438, 544 P. 2d 356, 362. 5. The Respondent failed to appear and the evidence is not disputed. The evidence presented consists of substantial evidence and fully supports the facts as stated. 6. On August 22, 2007, the Respondent was and in the past has apparently been under the influence of alcohol while performing her duties. The breathalyzer results are not challenged. She was significantly impaired to the extent that she would be unfit to drive. The job history shows her condition has affected her performance of her duties and this in turn is a danger to patients and doctors who rely on competent radiologic images in order to properly treat various medical conditions. This is unethical unprofessional conduct under A.R.S. §32- 2801(17)(b) and (m). In addition, the falsification of a letter from her doctor and the forgery of the doctor’s signature in an attempt to mislead Cigna and continue in her employment capacity is unethical unprofessional conduct under A.R.S. §32-2801(17)(k). 7. The allegation as charged is proven by a preponderance of the evidence. There is no mitigating evidence, and the following recommendation is fully justified. Recommendation It is recommended that on the effective date of the Order[1] entered in this matter that certificates CRT-6456 and CMT-1579 issued to Tamara Dias, be revoked.

Done this day, September 25, 2007

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Shanna Farish, Executive Director Medical Radiologic Technology Board of Examiners 4814 S. 40th St. Phoenix, Arizona 85040-2940

By ___________________________

----------------------- [1] Forty (40) days from the date of the Order, or if certified by the Director of the Office of Administrative Hearings, forty (40) days from the date of certification.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826