ALJDEC decisions subject to certification as final

08A-021108B-MRT · Medical Radiologic Technology Board of Examiners · 2008-06-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 18, 2008 at 9:00 a.m. APPEARANCES: The Arizona Medical Radiologic Technology Board of Examiners appeared through Elizabeth A. Campbell, Esq., Assistant Attorney General; Respondent Arlando Walker did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. The Arizona Medical Radiologic Technology Board of Examiners (“the Board”) has authority to regulate and control the practice of medical radiologic technology in Arizona according to A.R.S. § 32-2801 et seq. 2. The Board has issued to Respondent Arlando Walker license number CPTR-4098 for the practice of radiologic technology in the State of Arizona. 3. On January 17, 2008, Respondent accepted a voluntary disciplinary agreement (“the Consent Agreement”) offered to him by the Board to resolve a complaint in case number 101507A that he had practiced radiologic technology for eighteen months without a valid license and had failed to keep the Board updated with his current address. The agreement was executed by the Chairman of the Board and became effective on January 22, 2008. 4. The Consent Agreement required Respondent to take the following actions: 1. To pay a $100.00 civil penalty within 60 days of its effective date; 2. To provide a complete copy of the Consent Agreement to any and all employers within 14 days of its effective date; and 3. To refrain from any committing acts that would constitute further grounds for discipline against his license. 5. The Consent Agreement also provided that, if Respondent failed to pay the $100.00 civil penalty within 60 days of its effective date, his license would be immediately suspended. 6. A copy of the Consent Agreement was mailed to Respondent at his address of record, 222 W. Brown, #112, Mesa, AZ 85201. 7. On February 7, 2008, the Board received an envelope marked “Southwest Urgent Care” on the return address. Inside the envelope was a one-page handwritten document bearing the name Joseph Harman, which stated that he was Respondent’s immediate supervisor and had received a copy of the Consent Agreement. 8. The Board’s investigator Sarah Penttinen was familiar with Respondent’s handwriting. The handwriting in the letter was similar to Respondent’s. 9. On February 11, 2008, Ms. Penttinen made a telephone call and spoke to Mr. Harman at Southwest Urgent Care. Mr. Harman said that he was the only full-time technician at Southwest Urgent Care but that he was not Respondent’s supervisor. Respondent’s clinical supervisor was Diane Nieman. Mr. Harman told Ms. Penttinen that he may have written something on Respondent’s behalf but was not sure. 10. After Ms. Penttinen faxed a copy of the letter to Mr. Harmon, she called him again. Mr. Harman said he had spoken to Respondent to try to figure out what had happened. Mr. Harman did recall having a conversation with Respondent before Ms. Penttinen initially contacted him in which he had told Respondent to write a letter using his name. Ms. Penttinen asked Mr. Harman to ask Ms. Nieman to call her. 11. On February 12, 2008, Ms. Penttinen received a call from Ms. Nieman. Ms. Nieman confirmed that she was the clinical supervisor at Southwest Urgent Care and was Respondent’s direct supervisor. Ms. Nieman had not received a copy of the Consent Agreement and did not know that Respondent had been disciplined. Ms. Nieman also told Ms. Penttinen that, overall, Respondent was a good employee and that she believed that it would be out of character for him to send a letter that falsely purported to be from Mr. Harman. 12. On February 29, 2008, the Board received additional correspondence from Respondent, in relevant part as follows: Mr. Harmon was the lead x-ray tech at Southwest Urgent Care. He was advised of the disciplinary action, but did not have time to write a response to the allegation. So he might have forgot [sic] that he gave me the permission to write the letter. Ms. Neiman is not available at the time we needed the response for the letter. So we didn’t not [sic] bother to let her know. As far as x-ray responsibility goes Mr. Harman is my immediate supervisor.

The return address on the envelope in which Respondent sent the letter was 222 W. Brown #112, Mesa, AZ 85201. 13. Effective March 24, 2008, the Board suspended Respondent’s license because he failed to pay the $100.00 civil penalty within 60 days of the effective date of the Consent Agreement. 14. On March 24, 2008, Ms. Penttinen contacted Ms. Nieman at Southwest Urgent Care and informed her that Respondent’s license had been suspended. Ms. Nieman informed Ms. Penttinen that Respondent no longer worked at Southwest Urgent Care, that his last date of employment had been approximately February 6, 2008, when he had failed to appear for his scheduled shift, and that, in any event, he had been only a part-time employee. Ms. Nieman stated that Respondent worked full-time for Chandler Valley Urgent Care. 15. After receiving this information, Ms. Penttinen called Chandler Valley Urgent Care and spoke to Dr. Nicholas Trang, who managed the facility. Dr. Trang informed Ms. Penttinen that Respondent had worked at Chandler Valley Urgent Care for approximately six years, until he had resigned about a week earlier. Dr. Trang was not aware of any disciplinary action against Respondent had had not received a copy of the Consent Agreement. 16. The Board referred the matter to the Office of Administrative Hearings and, on May 13, 2008, issued a Complaint and Notice of Hearing, charging Respondent with acts of unethical professional conduct under A.R.S. § 32-2821(A)(7) (via A.R.S. § 32-2801(17)(k) and (m)) and setting a hearing on June 18, 2008 at 9:00 a.m. 17. The Board sent copies of the Complaint and Notice of Hearing to Respondent at his most recent address of record at 222 W. Brown #112, Mesa, AZ 85201 via regular and certified mail. 18. A hearing was held on June 18, 2008. 19. Although the beginning of the duly noticed hearing was delayed nearly 15 minutes to allow Respondent additional travel time, he did not appear personally or through a duly authorized attorney, did not contact the Office of Administrative Hearings to request a continuance or that the time for the hearing be further delayed, and did not present any evidence to defend his license. 20. The Board had admitted into evidence six exhibits and presented the testimony of Ms. Penttinen to establish the facts set forth above. CONCLUSIONS OF LAW 1. This matter lies within the Board’s jurisdiction.[1] 2. The notices of the hearing that the Board mailed to Respondent at the address he provided, which was also his address of record, was reasonable and he is deemed to have received notice of the hearing.[2] 3. The Board bears the burden of proof and must establish cause to sanction Respondent’s license by a preponderance of the evidence.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[5] 4. In A.R.S. § 32-2821(A)(7), the Arizona legislature authorized the Board to suspend or revoke a previously issued license if it finds that the licensee “[h]as been guilty of unethical professional conduct.” 5. A.R.S. § 32-2801(A)(17) defines “unethical professional conduct to include the following: (k) Knowingly making a 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.

6. The Board has borne its burden to establish that Respondent violated the Consent Agreement by failing to pay the civil penalty or to provide a copy of the Consent Agreement to his employers Southwest Urgent Care and Chandler Valley Urgent Care. Especially in light of Respondent’s failure to appear at the duly noticed hearing, it does not appear at this time that he can be regulated. 7. Respondent also misrepresented that Mr. Harman was his supervisor at Southwest Urgent Care. Both Mr. Harman and Ms. Nieman told Ms. Penttinen that Ms. Nieman was Respondent’s supervisor. 8. The Board therefore has established that Respondent committed unethical professional conduct under A.R.S. § 32-2801(17)(k) and (m). Cause therefore exists to penalize his license under A.R.S. § 32-2821(A)(7). RECOMMENDED ORDER Based on the foregoing, it is recommended that the Board revoke License No. CPTR-4098 previously issued to Respondent Arlando Walker. Done this day, June 24, 2008.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of June, 2008, to:

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

By ___________________________ ----------------------- [1] See A.R.S. §§ 32-2801 et seq., 41-1092 et seq. [2] See A.R.S. § 41-1092.04; A.R.S. § 41-1061(A). [3] See A.R.S. § 41-1092.07(G)(1); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] Black’s Law Dictionary at page 1220 (8th ed. 1999).

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