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

SONYA M RONDON, Employee

ST MARY'S CARE CENTER, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04002950MD


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 for about one year as a certified nursing assistant (CNA) for the employer in its skilled nursing home and rehabilitation operation. Her last day of work was on January 18, 2004, and on January 22, 2004 (week 4) the employer discharged her for failures in care which endangered the safety of residents.

The employee received two warnings in February of 2003 for using incontinence products inappropriately. The employee received a reminder in April of 2003 for failing to appropriately dress a resident.

In June of 2003 the employee received a warning for failing to attach a personal alarm on a resident. The warning indicated that further instances of similar behavior would result in disciplinary action or termination. On that occasion the resident fell and was injured. The employee acknowledged in a written statement that she failed to put the alarm on the resident.

After the June of 2003 incident the employer's registered nurse sat down with the employee and again went through the employer's concerns regarding her care for residents. The registered nurse discussed with the employee that she needed to look at a resident's care card prior to providing care. The registered nurse stressed to the employee that the last thing the employee should do before leaving a room was to look at the resident and make sure things are in place. The employee indicated that there was too much work on the unit and she needed more help. The registered nurse replied that it took more to pick a person off the floor than it did to look at the care card. The employee was the only one responsible for that group of residents and, if she needed help, had handsets and cell phones to call for help at any time.

The employee's discharge was prompted by her actions and inactions on January 16, 2004. The employee left a resident unattended on a toilet without a personal alarm attached. The resident had a history of falling. On the resident's care card, it indicated that the person needed a personal alarm. When the team nurse confronted the employee about the incident, the employee admitted to putting the resident on the toilet and leaving. The employee stated that she had something to do with the other residents. The employee asserted she was not aware that a personal alarm was required.

That same day the team nurse found a resident unattended in a high position on a bed. The resident had falling issues and was not to be left in such position. The team nurse again confronted the employee. The employee was assigned to take care of the resident but denied that she had left the resident in such position.

The employee was not in attendance at the meal service time. Meals are in a small dining room for 12 residents with three tables. All staff members are required to attend unless there is an emergency. The employee was later found in a resident's room sitting on the bed with the door closed.

The team nurse asked the employee on three occasions to give a resident with low blood sugar orange juice and ice cream. The employee did not do so. Each time the employee indicated she had a telephone call. The team nurse finally helped the resident herself and called a supervisor to help with the other residents.

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' with in the meaning of the statute."

The employee maintained at the hearing that she did not leave the resident unattended on the toilet but another CNA, who she could not recall, was there at the time and therefore an alarm was not required. However, this was not the explanation she gave to the team nurse when initially confronted. The team nurse personally observed a resident in the employee's charge inappropriately left in a high position on a bed. The employee maintained that she was helping in the beginning of the meal but went to help another resident who wanted to have her meal in her room. However, the team nurse's testimony established that the employee would have been seen if in fact she was in the dining room. The employee maintained that when she was asked to get the ice cream and the orange juice she was going to get it but was asked by a resident in a wheelchair for something. The employee maintained that the team nurse did not wait for her to be able to get it. However, the employee has offered no credible explanation as to why the team nurse would have offered false testimony against the employee. The commission does not believe the team nurse would have resorted to calling a supervisor if the employee had not repeatedly failed to heed the team nurse's instructions.

The employee repeatedly failed to perform her work to the standards the employer had a right to expect. The employee's failures to attach personal alarms on residents, as required by the residents' care plans, placed the residents at risk and demonstrated, at a minimum, gross negligence. The employee's failures cannot be attributed to incapacity or inability. The commission finds that the employee's conduct that led to her discharge demonstrated an intentional and substantial disregard of the employer's interests and of the standards of behavior the employer had a right to expect of the employee.

The commission therefore finds that in week 4 of 2004 the employee was discharged from her employment and for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $970.00 for weeks 4 through 8 of 2004, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived. Wis. Stat. § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), departmental error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, by commission or omission, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to departmental error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 4 of 2004, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $970.00 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 otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed February 15, 2005
rondoso . urr : 132 : 4 :   MC 657

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ indicated that he did not recall the parties and could not indicate what his credibility impressions were based on the demeanor of the witnesses.

 

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.I. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.

 

cc: James F Allen, UC Appeals Clinic


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uploaded 2005/02/22