AMY J CONVERSE, Employee

HOMME HOME FOR THE AGING INC, Employer

On December 18, 2002, the Department of Workforce Development issued an initial determination which held that the employee's discharge was not for misconduct connected with her employment. Following determination that the employer's request for hearing was late for a reason beyond its control, hearing on the merits was held on March 26, 2003 in Appleton, Wisconsin before a department administrative law judge. On March 27, 2003, the administrative law judge issued a decision affirming the initial determination of no misconduct. The employer filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

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

The employee worked just under two years as a certified nursing assistant for the employer, a long-term care facility. The employer discharged her on December 4, 2002 (week 49) for several instances of alleged neglect or abuse of residents, and the issue is whether the discharge was for misconduct for unemployment insurance purposes. The commission concludes that it was, and so reverses the appeal tribunal decision.

The employer alleged three instances of negligence or abuse of a patient by the employee, as grounds for discharge. The issue therefore is whether failures by the employee on October 4, October 29, and November 29 constitute misconduct in the health care context. Misconduct in this context is specifically defined by Wis. Admin. Code § DWD 132.05(2):

(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 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).

The employee received a written warning on October 4, 2002, for various failures to perform duties on that date. Specifically, she did not ambulate one of the residents she was responsible for, she did not do a bed change for another patient, and she failed to check the "weights and vitals" on the patients in her group. The employee admitted these failures, with the defense that she thought she could finish them the next day. For that reason as well, she did not tell workers on the next shift she had not performed the duties in question.

While this set of failures, alone, does not meet any of the definitions of misconduct in the administrative code, yet some blame remains attributable to the employee for the failures. Walking a patient around each day likely is necessary for the patient's medical well-being, and the physicians and other staff administering care to the patients rely upon the nursing assistants' having properly and timely checked and documented patients' medical conditions.

The employee was suspended on October 30, 2002, for allegedly failing to take proper care of a resident. The employee had taken the resident in question to a physical therapy appointment at 12:45 p.m. At approximately 3:00 p.m., the resident was found on the floor in his room, improperly dressed and soaked in urine. The employee's shift had ended at 2:00 p.m., however, and other employer staff were responsible for the resident after that time. It thus cannot be concluded that the resident's condition at 3:00 p.m. is properly attributable to the employee.

The incident precipitating the discharge was the employee's dragging of a resident across the cafeteria area of the facility to a table for lunch. A co-worker was walking a resident into the dining room. The resident for some reason stopped walking; the employee came by, grabbed the resident by the arm and literally dragged her approximately 15 feet to a table. This caused the resident's and co-worker's feet to become entangled, resulting in the co-worker's stepping on the resident's foot.

One of the definitions of misconduct in the administrative code is any intentional act which subjects a patient to gross insult, ridicule, or humiliation, or repeated failure to treat a patient with dignity and respect. In other words, any intentional act which subjects a patient to humiliation, constitutes misconduct under the administrative code. The employee's conduct in dragging a resident across the floor, meets this standard.

The commission therefore finds that, in week 49 of 2002, the employee was discharged for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04(5). The commission also finds that the employee was paid benefits in weeks 49 through 52 of 2002 and 1 through 6 of 2003, totaling $1,475.00, for which she was ineligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). (The total overpayment is $2,613.00; the repayment of $1,138.00 is already resolved, as those monies are included in overpayment amounts set forth by a notice of overpayment (form UCB-37) dated January 10, 2003 and by initial determinations issued on January 9, February 12 (two), and June 6, 2003.) Pursuant to Wis. Stat. § 108.22(8)(a), she must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c). Although the overpayment did not result from employee fault as provided in Wis. Stat. § 108.04(13)(f), yet the overpayment also was not the result of departmental error. See Wis. Stat. § 108.22(8)(c)2.

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 49 of 2002, 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. The employee is required to repay the sum of $1,475.00 to the Unemployment Reserve Fund.

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 January 2, 2004
convean . urr : 105 : 1 MC 610.25

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

Robert Glaser, Commissioner

NOTE: As indicated above, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision. The administrative law judge had no specific recollection of the credibility of the witnesses, in part because the hearing was conducted by telephone. The administrative law judge indicated that she was not convinced that the employee dragged the resident in question, based upon the co-worker's written description of the incident shortly after it occurred. The co-worker had written that, after the employee began dragging the resident, the co-worker essentially was getting dragged along herself. The administrative law judge did not believe it likely that the employee could have dragged both the resident and the co-worker the 15 feet to the table. The co-worker's written statement in its entirety places the specific statement in context and, in that context, there is nothing improbable about it. The co-worker also wrote that she was so disconcerted by the employee's actions that she simply followed along to the table. In other words, the co-worker was not literally dragged to the table as the resident was, but rather attempted to keep up with the employee as the employee was dragging the resident to the table. In this context, the commission believes the co-worker's allegation and testimony are credible.

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uploaded 2004/01/05