NICKI L SAYRE, Employee

APPLEWOOD HOMES INC, 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 ineligible for benefits for weeks 37 through 44 of 2003, and until she has earned wages in covered employment performed after the week of discharge equaling at least 14 times the $186.00 weekly benefit rate which would have been payable had the discharge not occurred. She must repay $1,049.00 to the department.

Dated and mailed April 29, 2004
sayreni . usd : 164 : 1   MC 610.25  MC 660.01 

/s/ David B. Falstad, Chairman

James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

In her petition for commission review the employee denies having administered discontinued medication and argues that, even if she did so, her conduct was unintentional and did not constitute gross negligence. The commission has considered these arguments, but finds them unpersuasive. The employee initialed the chart showing that she gave the discontinued medication, and the employer's witness testified that the employee told her she could not remember whether or not she gave it, but agreed that her initials appeared on the document and that she must have done so. The employer's witness also testified that the discontinued dose for the date in question was missing from the resident's medication box. Based on the foregoing, the commission is persuaded that the employee did, in fact, administer the discontinued medication.

While the commission agrees that the employee's error does not appear to have been intentional, the evidence supports a conclusion that her actions amounted to gross negligence. The commission has held those who provide direct patient care in nursing homes or other comparable facilities to a very high standard, due to the fragile and vulnerable population they serve. Sanderson v. FSQ Inc. (LIRC, Feb. 3, 2004). Even a single medication error can amount to gross negligence, depending upon the circumstances of the case. See, for example, Franklin v. Harmony Living Centers, LLC (LIRC, Jan. 23, 2002). While under other circumstances the employee's error might be dismissed as a matter of ordinary negligence, the record indicates that the employee had made prior medication errors, had been recently retrained on how to administer medications, and was on notice that failure to do so correctly could result in her discharge. The final mistake for which the employee was discharged could have easily been avoided had the employee simply referred to the medication chart, which clearly indicated that the dose in question had been discontinued. As the appeal tribunal noted in its decision, the employee presented no compelling explanation for her failure to do so, and the commission is aware of no mitigating circumstances that might serve to justify her actions. Under all the facts and circumstances, the commission agrees with the appeal tribunal that the employee's discharge was for misconduct connected with her employment. Accordingly, the appeal tribunal decision is affirmed.

cc: 
Wellington Meadows
Attorney Vicki Zick

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uploaded 2004/05/03