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

JANET L NEATHERY, Employee

HARMONY LIVING CENTERS LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03001084MD


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 during ten weeks as a certified nursing assistant for the employer, an assisted living facility. Her last day of work was September 19, 2002. On September 23, 2002, the employer suspended the employee's employment pending an investigation regarding her conduct at work.

The employee was scheduled to work during the overnight hours. Her duties included doing food preparation, laundry, and resident care. Each resident had an individual service plan that outlined what level of care the employer would provide. The employee would note in each resident's log what occurred during the shift she worked.

The employer advised the employee that one of the residents needed frequent attention and had arranged to pay for additional services. Since it required two persons to turn the resident and to assist him in getting out of bed and into a wheelchair, the employer had hired a second person to work third-shift hours.

After the resident in question complained about the quality of care he was receiving from the employee, the employer initiated its investigation. At that point the employer reviewed the notes the employee had entered on the resident's record and discovered that on September 10 the employee had reported that the resident had asked to be turned and that she had told the resident that he had been turned not even ten minutes before. In addition an entry in the notes from September 14 reported that the resident had used his call light six times during the night and that he had asked to get up at 5:00 a.m. and the employee had told him it was too early and that he could get up at 5:45 a.m.

On September 27, 2002 (week 39) the employer mailed the employee a notice that it was terminating her employment because she had violated the employer's work rules by not providing appropriate care to a resident.

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the 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."

Wis. Admin. Code § DWD 132.05 provides, in part, as follows:

(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 employee by a health care facility for abuse of a patient. Abuse of a patient includes, but it 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 parts (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 employee's conduct did not constitute resident abuse as defined above. The employee used poor judgment in commenting about the number of times the resident had used the call button, but did in fact turn the resident as requested. The employee explained that she did not want to get the resident up at 5:00 a.m. because he had had such a restless night. The employee should have acceded to the request of the resident, and not acted based on her perception of what was best for the resident. However, while the employee was misguided in her actions, her conduct did not demonstrate an intentional, wilful, and substantial disregard of the employer's interests.

The commission therefore finds that in week 39 of 2002, the employee was discharged but not for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 39 of 2002, if she is otherwise qualified. There is no overpayment with respect to this issue.

Dated and mailed August 27, 2003
neathja . urr : 132 : 1 :  MC 610.25

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ indicated that he found the employee credible that she did in fact turn the resident. There was no dispute that the employee did not get the resident up as requested, and no testimony to rebut the employee's explanation for her conduct.

cc: Harmony Living Centers, LLC (Stevens Point, Wisconsin)


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