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


SHARON K REISSMANN, Employe

HOMME HOME FOR THE AGING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97401445MD


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is eligible for benefits as of week 18 of 1997, if otherwise qualified.

Dated and mailed: January 21, 1998
reisssh.usd : 105 : 7 MC 610.25

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

As the employer's representative indicates in its petition, the Wisconsin Administrative Code has defined misconduct in the context of abuse of a patient of a health care facility. It 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 paragraphs (a), (b) or (c) or knowingly failing to take reasonable steps to prevent another person from doing any of the acts in paragraphs (a), (b) or (c).

Wis. Admin. Code § DWD 132.05 (2).

Under (a), there must be at a minimum a threat through communication involving harassment, and which reasonably could cause physical pain or injury, fear or severe emotional distress. The record does not indicate that the employe's statement meets this standard. The distress the record indicates the resident was experiencing, was due to the resident's belief that his wife had left the room. In addition, as a practical matter, it is not clear that a single statement to the effect that one has a filthy mouth that needs to be washed out with soap reasonably could cause severe emotional distress. Further, the employe's remarks did not occur in a vacuum, but were a response to the frequent swearing by the resident in question (which the employer's witnesses concede).

Another aspect of the misconduct definition is "repeated failure to treat a patient with dignity and respect." The employe's comment to the resident arguably could constitute a failure to treat a patient with dignity and respect, but the record does not indicate that the failure by the employe was repeated. The administrative law judge alludes to this standard in his finding that the comment was not misconduct in the absence of evidence that the comment had been repeated or was part of a pattern.

For the above reasons and those stated in the appeal tribunal decision, the commission agrees with the administrative law judge's conclusion of no misconduct. The commission therefore has affirmed that decision.

cc: HOMME HOME FOR THE AGING INC


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]