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

KATHLEEN A BARNES, Employee

METHODIST MANOR INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03603466MW


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 two years as a registered nurse for the employer, a nursing home.

The issue is whether the employee was discharged for misconduct connected with her employment.

On January 1, 2003, the employee was functioning as the medication nurse on her assigned unit when the new medications for the month arrived from the pharmacy. When the medication coumadin, a blood thinner, arrived in different packaging for a particular resident than it had in the past, the employee, instead of contacting the pharmacy, made certain incorrect assumptions as to the proper dosage. This resulted in the resident being administered three times the prescribed amount. As a result, the resident had to be closely monitored for a period of days because her blood had thinned excessively.

As a result of this error, the employee was, consistent with the employer's policy, suspended for one day for making a level 2 medication error, and warned that
"any further medication errors of this scope will result in termination." This disciplinary action/warning was issued on January 14, 2003.

On January 31, 2003, the employee participated in an inservice training session relating to the employer's medication error policy. During her shift that same day, while she was functioning as the medication nurse, the employee signed that she had administered a resident's narcotic medication when she had in fact failed to do so.

The employee explains that, on January 31, she was the only registered nurse on duty for a period of time and was interrupted while she was in the process of obtaining and administering this medication; that, when she returned to this duty after the interruption, she must have mis-counted the number of remaining pills when she concluded that she had already administered this medication; and that administering this narcotic medication required that the pill be crushed and placed in applesauce.

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' within the meaning of the statute.

The employee acknowledges making two serious medication errors. She was suspended after the first and warned that another one would result in her termination. Two weeks later, on the same day that she attended a training session relating to the employer's medication error policy, she signed that she had administered a narcotic medication to a resident when she had in fact failed to do so. The commission does not find it plausible that, in endeavoring to determine whether she had removed the narcotic pill from its container, the employee would mistake eight pills for seven; or that she would not be able to recall whether she had crushed the pill and placed it in the resident's applesauce a few minutes earlier. The consequence for error in regard to these two incidents is substantial and, in fact, the resident involved in the first had to be closely monitored for a period of time and could, as a result of the overdose of coumadin, have experienced major bleeding problems had she fallen or received a cut during this monitoring period. Neither of these actions would accurately be characterized as simple carelessness or negligence since the employee made an affirmative decision in regard to the first to proceed, despite her uncertainty, without consulting with the pharmacy; and in regard to the second to sign that she had administered the narcotic when in fact she testified that she couldn't clearly recall but "thought" she had.

The employee also explains that she was suffering from ADHD (attention deficit/hyperactivity disorder) at the time which could have affected her ability to concentrate on her job duties. However, the employee had an opportunity to provide medical documentation to support this link both to the employer, who asked her for such documentation in a letter dated February 11, 2003, and at the hearing, but failed to do so.

The commission therefore finds that, in week 9 of 2003, the employee was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $5,255 for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1), and that waiver of this overpayment is not merited since the initial award of benefits was not based on department error but instead on a differing interpretation of the applicable law.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 9 of 2003, 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 sum of $5,255 to the Unemployment Reserve Fund.

Dated and mailed January 7, 2004
barneka . urr : 115 : 1   MC 660.01

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before reversing his decision, because this reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing view as to what the evidence of record establishes and a differing interpretation of the relevant law.


cc: Attorney Jason A. Kunschke


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uploaded 2004/01/12