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

PAMELA J KATRICHIS, Employee

WEST ALLIS MEMORIAL HOSPITAL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05603019MW


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 eight years as a health unit coordinator for a hospital. She was discharged on March 30, 2005 (week 14).

The employee accessed automated records related to the medical care of her mother-in-law who was a patient at the employer's facility in March 2005. She provided information to family member concerning a diagnostic procedure performed on her mother-in-law. She had previously received informal permission, not of the variety countenanced by the Health Insurance Portability and Accountability Act, from her mother-in-law for access to records. The employee signed a confidentiality policy on March 14, 2005, which among other things dealt expressly with the issue of family or personal medical records and stated that those records must be accessed through regular procedures and may not viewed or copied unless in the performance of work duties. The policy provides for discipline, including discharge, for violations. When the employer discovered that the employee the accessed the records for personal reasons, she was discharged.

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 is not to be deemed 'misconduct' with in the meaning of the statute."

The issue before the commission is whether this deliberate violation of the employer's rules is mitigated by the employee's family situation or by her belief that she had permission. The commission concludes that the employee's conduct is not excused. It was not reasonable for the employee to believe that her conduct was permitted since she was notified by the express language of the policy she signed three days before that even family medical records were subject to confidentially requirements. The employer has a legal and ethical obligation to maintain the confidentiality of its patients' medical records. The employee had notice of her obligations under those policies. She deliberately violated those policies for her own purposes.

The commission therefore finds that in week 14 of 2005, the employee was discharged for misconduct connected with his employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $5,600 for weeks 15 through 34 of 2005; for which the employee was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1), and pursuant to Wis. Stat. § 108.22(8)(a). As a result of this decision, the employee is required to repay $5,500 to the Unemployment Reserve Fund.

Wisconsin 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), department 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, 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 department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

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 department 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 14 of 2005, 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 $5600 to the Unemployment Reserve Fund.

The initial benefit computation (UCB-700), issued on April 7, 2005, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

Dated and mailed September 2, 2005
katripa . urr : 178 : 1 MC 689

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ prior to deciding to reverse. The commission's decision is not based on any differing assessment of witness credibility. Instead the commission reaches a different legal conclusion when applying the law to the facts.


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.C. 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: Naomi Pichotta


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