STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

EL LOUISE L GAMES, Employee 

COMMUNITY CARE ORGANIZATION INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00608074MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for three years as a personal care worker for the employer, a community based residential center and adult day care. Her last day of work was August 4, 2000, and she was discharged on August 7, 2000 (week 33). The employer discharged the employee for "substantiated findings of physical and mental abuse of a resident."

On August 3, 2000, the employee was attempting to put residents to bed. One resident, Maria, was sitting in a chair in the dining room. The employee told Maria it was time to go to bed. Maria said she did not want to go to bed. The employee told Maria that she was going to bed and pulled Maria out of the chair. The employee then pushed Maria down the hallway to Maria's room. As the employee was pushing Maria, Maria again stated that she did not want to go to bed. A co- worker, Ms. Calaunan viewed the employee's actions. Ms. Calaunan then went to assist another worker, Ms. Kittler. Ms. Calaunan told Ms. Kittler that the employee had taken Maria to her room against her will. Ms. Calaunan stated that the employee pushed Maria down the hall and Maria didn't want to go.

Later, Ms. Kittler and Ms. Calaunan went to the dining room to complete their charting. While there Ms. Kittler and Ms. Calaunan observed the employee standing outside Maria's door for five to ten minutes holding the door shut. Sounds were emanating from the room as if someone were kicking the door. The employee later approached Ms. Kittler and Ms. Calaunan and stated that she had better check on Maria to see if she had a heart attack. Maria eventually came out of her room looking shaky. Ms. Kittler and Ms. Calaunan calmed Maria down with milk and graham crackers. Both Ms. Calaunan and Ms. Kittler received one-day suspensions for failing to immediately report the employee's conduct.

The issue to be decided is whether the employee's actions constituted misconduct connected with her work. In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' with in the meaning of the statute."

Wisconsin Administrative Code § DWD 132.05 provides, in relevant part, as follows:

(2) Standard. Discharge of an employe by an employing unit for misconduct connected with his or her employment under s. 108.04(5), Stats., may include the discharge of an employe by a health care facility for abuse of a patient. Abuse of a patient includes, but is not limited to:

(a) Except when required for treatment, care or safety, any single or repeated intentional act or threat through contact or communication involving force, violence, harassment, deprivation, withholding care, sexual contact, sexual intercourse, or mental pressure, which causes physical pain or injury, or which reasonably could cause physical pain or injury, fear or severe emotional distress;

(b) Any gross or repeated failure to provide treatment or care without good cause which reasonably could adversely affect a patient's health, comfort or well-being;

(c) Any intentional act which subjects a patient to gross insult, ridicule or humiliation, or repeated failure to treat a patient with dignity and respect;

The commission finds that Ms. Kittler's and Ms. Calaunan's perceptions and testimony of the employee's activities are more credible than the employee's testimony. There was no reason for the either co-worker to place a negative pale on the employee's actions. Maria specifically told the employee she did not wish to go to bed. The employer's rules required that the employee accede to Maria's stated preference not to go to bed. Maria was in no danger and it was not the employee's job to determine what was best for Maria. It is clear that Ms. Calaunan believed at the time of the incident that the employee was forcing Maria to go to bed as she expressed as much to Ms. Kittler that night. Both Ms. Kittler and Ms. Calaunan saw the employee holding Maria's door closed and heard sounds consistent with Maria kicking or pounding on the door. The employee engaged in act of force against Maria that caused or reasonably could cause fear and severe emotional distress. The employee by her intentional conduct failed to treat Maria with dignity and respect.

The commission therefore finds that in week 33 of 2000 the employee was discharged from her employment and for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5) and Wis. Admin. Code § DWD 132.05.

The commission further finds that the employee was paid benefits in the amount of $5,534.00 for weeks 37 through 53 of 2000 and weeks 1 through 6 of 2001, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 33 of 2000, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $5,534.00 to the Unemployment Reserve Fund. The benefits paid for weeks 33 through 37 of 2000 were withheld as forfeitures. Since the benefits are now denied for those weeks, those payments cannot be applied to the forfeiture. Accordingly, $1,200.00 will be restored to the forfeiture balance.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed June 29, 2001
gamesel . urr : 132 : 1 : MC 610.25

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ regarding her impressions of witness credibility and demeanor. The ALJ found the employee, Ms. Kittler, and Ms. Calaunan to be credible. For reasons set forth above, the commission finds Ms. Kittler and Ms. Calaunan more credible than the employee.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

cc: 
Wessels & Pautsch PC
Petrie & Stocking


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uploaded 2001/07/02