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

MARY Y KUNZ, Employee

MIDDLETON VILLAGE NURSING HOME, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01004633MD


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 approximately eight months as a licensed practical nurse for the employer, an operator of a skilled care facility for the elderly. The employee's last day of work was July 12, 2001 (week 28). On July 16, 2001 (week 29) the employer discharged the employee for negligent performance of assigned job duties on July 10, 2001.

On July 10, 2001, a resident fell in the dining room. A certified social worker that witnessed the fall requested the assistance of the employee who was sitting at the central nurse's station. Even though the social worker asked the employee on two separate occasions for assistance, the employee did not respond at all. The employee recalled only being asked once for assistance and that she referred the social worker to another nurse whom she heard nearby. One way or the other, the social worker found the other nurse in the vicinity and that nurse then assisted the resident.

The employer further contends that the employee did not accurately report the fall on her charting. However, the employee did report the fall. Furthermore, it was not established that the employee was assigned to the resident that night and therefore she was not responsible for the charting.

The employer also brought other evidence to the hearing which included several prior coaching documents. The employer however presented no witnesses with firsthand knowledge of these incidents. As found by the ALJ, the employee was not materially or substantially at fault in those instances. Furthermore, the employer did not cite these previous incidents in the employee's discharge documentation.

Therefore, the issue for review is whether the employee's conduct on June 10, 2001, constitutes misconduct connected with her employment. 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."

The employee admits that her training taught her that a fall must be treated as an urgent situation. The employee also admitted that she was instructed to respond to urgent situations but she also felt that asking for someone else to respond in this instance was appropriate. At the time of the urgent situation, the employee was the only nurse at the nurse's station. When asked for assistance by the social worker, the employee failed to respond to the request. When the employee failed to do anything after being asked for assistance a second time, the social worker tried to find another nurse. At no time did the employee respond to the urgent situation in the dining room.

Given the urgency of the situation the commission is satisfied that the employee's failure to respond to the situation was negligence of such degree as to manifest equal culpability, thereby establishing misconduct connected with her employment. The commission cannot conclude that the employee's failure to respond to the urgent situation was mere inefficiency, unsatisfactory conduct or ordinary negligence of an isolated instance. The employee was trained to respond to all urgent situations and she failed to do so.

The commission therefore finds that the employee was discharged for misconduct in week 29 of 2001, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits amounting to a total of $2,814.00, for which she is not eligible and to which she is not entitled, with in the meaning of Wis. Stat. § 108.03 (1). Pursuant to Wis. Stat. § 108.22 (8)(a), the employee is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c), be cause although the over payment 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 29 of 2001, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the amount of $2,814.00 to the Unemployment Reserve Fund.

Dated and mailed February 28, 2002
kunzma : 135 : 8    MC 657

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The commission conferred with the ALJ as to his credibility impressions and assessment of those who testified. The ALJ did not credit one witness over the other witness but believed that the employee's perception of the situation was not out of line for an employee accustomed to these types of situations that frequently occur in nursing homes. The commission, on the other hand, credits the social worker's testimony over that of the employee. The commission is satisfied that the social worker asked the employee on two separate occasions for assistance to which the employee either refused or failed to respond to. Furthermore, the commission finds the employee's contention that she properly exercised her discretion to attend to another important matter unpersuasive because she could not specifically recall what she was doing at the time of the request. The employee testified that "It could have been a couple of different things."

Therefore, given the urgency of the situation, coupled with the employee's training and experience as a licensed practical nurse, the commission is satisfied that the employee's failure to respond to the urgent situation as requested by the social worker, rises to the level of misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

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 overpayments of UC and other special benefit programs that are due to the 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: 
Middleton Village Nursing Home
Gary Grass
Sue Trapp


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uploaded 2002/03/04