PATRICIA A JOHNSON, Employee

GRACE LUTHERAN FOUNDATION INC, Employer

On October 13, 2001, the Department of Workforce Development issued an initial determination which held that the employee was discharged for misconduct connected with her employment. The employee filed a timely request for hearing on the adverse determination, and hearing was held on November 14, 2001 in Eau Claire, Wisconsin before a department administrative law judge. On November 20, 2001, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employer filed a timely petition for commission review of the adverse decision, and the matter now is ready for disposition.

Based upon the applicable law and the record and other evidence in the case, and after consultation with the administrative law judge, the commission issues the following:

The employee worked approximately six weeks as a resident care technician at a skilled nursing facility for the employer, a concern which operates several nursing facilities. The employer discharged her on May 25, 2001 (week 21), following an instance of failing to put a resident to bed the night of May 23. The issue is whether the employee's failure was misconduct for unemployment insurance purposes. The commission concludes that it was, and so reverses the appeal tribunal decision.

The employee worked the late night/early morning shift, on the second floor of one of the employer's facilities. One of the residents of that floor usually stays up late, going to bed only after midnight. The resident's medical condition is such that she requires the assistance of a lift in order to get into bed, and preparing the resident for bed and getting her into bed requires two workers. At approximately 2 a.m. on the morning of May 24, the resident told the employee she wanted the employee to put her to bed. The employee told the resident that she could not do it by herself. A few minutes later, the employee went to the nurse on duty, told her that the employee's co-worker was not on the floor, and asked the nurse for help. The nurse declined, indicating that she was too busy. When the employee's co-worker returned to the floor, the employee asked her for assistance in putting the resident to bed. The co-worker refused, indicating that the resident should have gone to bed during the previous shift. The employee did not again approach the nurse for assistance in putting the resident to bed. At approximately 3 a.m., the employee did "rounds" on the first floor with an aide assigned to that floor. The employee did not ask the first floor aide to assist her when they did the 3 a.m. rounds, because that aide was scheduled to go on her break. The end result of the matter was that the resident, who has arthritis and is incontinent, had to spend the entire night in her wheelchair. The employer discharged the employee for allowing the resident to sit the entire night in her wheelchair.

Wisconsin Administrative Code § DWD 132.05 states the misconduct standard as it applies to abuse of a patient of a health care facility, and provides in relevant part:

(2) Standard. Discharge of an employee 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; and

(d) Knowingly permitting another person to do any of the acts in pars. (a), (b) or (c) or knowingly failing to take reasonable steps to prevent another person from doing any of the steps in pars. (a), (b) or (c).

The applicable paragraph is (a), an act involving "withholding care." It of course is not the case that the employee directly withheld care, as the employer concedes that the employee asked at least two individuals to assist her in putting the resident in question to bed. Rather, the issue is whether the employee's having failed to follow up the original refusals of assistance itself constitutes an intentional act of withholding care.

The commission believes the employee's failure meets this standard. First, it is conceded that the employee need not have bothered asking her co-worker on the floor for assistance. The co-worker's original response to the employee, that it was too bad, that the resident should have gone to bed earlier, clearly indicates that the co-worker had no intention of assisting the employee in putting the resident to bed. The employee has no such justification, however, for her failure to have followed up the matter again with the nurse on duty. The employee testified that she did not know where the nurse was, that she never saw the nurse again that shift after originally talking to her. The employee conceded, however, that she never looked for the nurse, and she had no explanation at all for that failure. The employee also had no legitimate excuse for not asking for assistance from the first floor aide (with whom the employee went on rounds at 3 a.m.). The employee testified that the first floor aide was either too busy or had to go outside for a cigarette. This is less than no excuse whatsoever.

The commission therefore finds that, in week 21 of 2001, the employee was discharged for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04(5) and Wis. Admin. Code § DWD 132.05.

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 21 of 2001, and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. Department records indicate that the employee had requalified for unemployment insurance eligibility as of the first week she claimed benefits, week 40 of 2001.

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 other wise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed June 20, 2002
johnspa . urr : 105 : 3  MC 657  MC 610.25

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

NOTE: As indicated, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The administrative law judge found the employee credible with regard to her assertion that she had asked a co-worker for assistance in putting the resident to bed. The commission does not dispute this aspect of the employee's testimony. Indeed, the commission findings are based primarily upon the employee's own testimony. The commission concludes, though, that the employee's failures to follow up the matter legally constituted misconduct under the administrative code definition.

cc: Attorney Teresa E. O'Halloran

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uploaded 2002/06/26