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


JEAN E LAZARUS, Employe

AURORA HEALTH CARE INC, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 96605552MW


On July 31, 1996, the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996), issued an initial determination in the above- captioned matter which held that in week 28 of 1996 the employe was discharged and not for misconduct connected with her employment. As a result, benefits were allowed. The employer filed a timely appeal and a hearing was held before an appeal tribunal. On October 15, 1996, the appeal tribunal issued a decision reversing the initial determination to find that the employe was discharged due to misconduct connected with her employment. As a result, benefits were denied. The employe filed a timely petition for commission review of the appeal tribunal decision.

Based on the applicable law, records and evidence in this matter, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, a hospital, for approximately four years as a medical technician. The employe's job duties included performing laboratory testing in the areas of general chemistry, hematology, urinalysis and coagulation. The employe's last day of work was July 10, 1996 (week 28), at which point she was discharged based upon errors in her work performance.

In January of 1995 the employer issued the employe a written disciplinary notice for having incorrectly performed a coagulation test in December of 1994. However, the employe indicated that she believed she had performed the test correctly.

The employe received no further discipline until March 14, 1996, at which point she reported an incorrect result for a Beta HCG test, which is a test used to monitor the status of a pregnancy. After performing the test in question, the employe recognized that there was a problem with the procedures used and, therefore, ran it again. However, when reporting the test results the employe inadvertently reported the original result, rather than the result of the new test. The employe was issued a disciplinary notice because of this error and was advised that she must review procedures and carefully review her work to eliminate errors.

The next incident leading to the employe's discharge occurred on April 9, 1996, at which time the employe ran a hematology test and reported results which showed that the patient had normal white cell morphology when, in fact, the test results were atypical. The test in question required the employe to analyze blood under a microscope and identify abnormal cells, and the employe's error occurred because she failed to recognize cells which were abnormal. The employe received a disciplinary notice as a result of that incident and was advised that she should make arrangements to retrain in hematology, as failure to improve would result in further discipline.

On June 19, 1996, the employe reported incorrect urinalysis results for a patient in the emergency room. Specifically, the employe reported that a patient had 100-200 red cells when, in fact, he had 100-200 white cells. The employe explained that she made the error by hitting the wrong key on the employer's computer, which was immediately adjacent to the correct key, and that as soon as she discovered her mistake she notified emergency room personnel that the test results were inaccurate and should be disregarded. The employe was issued a 3-day disciplinary suspension as a result of that incident.

The final incident resulting in the employe's discharge occurred on July 2, 1996, at which time the employe reported that a patient who had undergone a drug screen tested negative when, in fact, the sample was positive for the presence of THC. The error occurred because the employe tested a dilution of the patient's urine, but failed to apply the proper multiplier before reporting the test results. The employe stated that she had performed the test many times in the past and had never been notified that she was doing it improperly.

On July 10, 1996, the employe was discharged based upon the incidents described above. The question to be resolved is whether the employe's discharge was for misconduct.

In Boynton Cab v. Neubeck, 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 employe, 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 employe'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 employer contends that the employe made errors which exhibited carelessness on her part and that her actions amounted to misconduct. However, while the employe's job performance was clearly unacceptable to the employer, which required that its medical testing be performed with a high degree of accuracy, the evidence failed to establish that she engaged in misconduct, as defined above.

In the first instance, the coagulation test performed in December of 1994, the employe denied having made any error and the employer presented no competent evidence to the contrary. Further, given that more than a year elapsed before the employe made another error, the commission does not believe that the incident should be considered in determining whether the employe's performance errors evinced a pattern of misconduct. In the next instance, the Beta HCG test, the employe made a clerical error in reading and recording a test result. This error, while unacceptable, was not shown to have been anything other than the result of ordinary negligence on the employe's part. With respect to the hematology test, at most the employe can be said to have exercised poor judgment in failing to recognize abnormal cells. She was advised to seek further training in hematology and made no similar mistakes thereafter. The employe's next error was in incorrectly entering a result of a urinalysis test into a computer by hitting the wrong key, which was located immediately adjacent on the keyboard to the proper key. The employe recognized her error and took actions to correct it. Finally, in the last instance, the employe reported incorrect drug test results because she was under a misapprehension about how the test was to be administered.

None of the aforementioned errors were proven to have resulted from any deliberate conduct on the employe's part, and the commission believes that they can be attributed to acts of ordinary negligence or isolated instances of poor judgment. Moreover, given that the employe did not make the same error twice and never repeated her mistakes after having been counseled by the employer, the commission sees no evidence of a pattern of gross negligence on her part. Unsatisfactory job performance, while a reasonable basis for the dismissal of an employe, does not constitute misconduct for unemployment compensation purposes unless there is some evidence that the employe acted with deliberate disregard for the standards the employer expected of her or, in the alternative, with a very high degree of negligence. Because such evidence was not present in this case, the commission concludes that misconduct was not established.

The commission, therefore, finds that in week 28 of 1996 the employe was discharged and not for misconduct connected with her employment, within the meaning of section 108.04 (5), Stats.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 28 of 1996, provided she is otherwise qualified.

Dated and mailed January 8, 1997
lazarje.rev : 164 : 3  MC 664

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

NOTE: The commission did not consult with the administrative law judge regarding witness credibility and demeanor. The commission does not disagree with any credibility assessment made by the administrative law judge, but reverses the appeal tribunal decision as a matter of law based upon essentially the same set of facts as that found by the appeal tribunal.

cc: ALISON BURKI
SINAI SAMARITAN MEDICAL CENTER

ATTORNEY BURTON A STRNAD


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