TARI L PASSINEAU, Employee

HARMONY LIVING CENTERS LLC, Employer

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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed June 12, 2003
passita . usd : 105 : 1   MC 610.25 

/s/ David B. Falstad, Chairman

James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The commission is sympathetic to the employer's concerns regarding the employee's treatment of patients. What constitutes misconduct in the health care context is governed by statute, however; that is, Wis. Admin. Code § DWD 132.05(2) defines what is misconduct in this context, and the employee's actions fall significantly short of that definition. Under Wis. Admin. Code § DWD 132.05(2), 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 par. (a), (b) or (c) or knowingly failing to take reasonable steps to prevent another person from doing any of the acts in par. (a), (b) or (c).

It is clear that a significant level of inappropriate conduct is necessary to constitute abuse of a patient, and the commission agrees with the administrative law judge that the employee's conduct does not meet this standard. The employer offered only two instances of argumentative behavior by the employee, one against a supervisor who the employee believed had inappropriately disciplined her in front of co-workers, the other with a resident whose clothes she was trying to get washed. The employer's allegation that the employee was inappropriately calling the home office does not constitute a substantial disregard of an employer's interests (at least with the general allegation presented here). Finally, the employee's unrebutted testimony was that the cookie withheld from the resident was the resident's fifth cookie and that the resident's file indicated that the staff was supposed to control the resident's intake of sugar. The employee also pointed out that a co-worker and even members of the resident's own family had taken food out of that resident's room.

It may be the case that the employee is not best suited for working in a nursing home. That is not the standard for misconduct for unemployment insurance purposes, however. For the above reasons, and for those stated in the appeal tribunal decision, the commission has affirmed that decision.

cc: Harmony Living Center (Wisconsin Rapids, Wisconsin)

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uploaded 2003/06/18