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


JOSEPH G FISCHER, Employe

MEMORIAL HOSPITAL OF IOWA COUNTY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97005270DV


On October 28, 1997, the Department of Workforce Development issued an initial determination which held that the employe's discharge was not for misconduct connected with his employment. The employer filed a timely request for hearing on the adverse determination, and hearing was held on November 24, 1997 in Dodgeville, Wisconsin before a department administrative law judge. On November 28, 1997, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employer filed a timely petition for review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, and after consultation with the administrative law judge, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe in this case worked just under a year as a supervisor for the employer, a community hospital. The employer discharged him on September 30, 1997 (week 40), for several instances of inappropriate supervision which culminated in allegedly extremely unprofessional treatment of a patient's family on the evening of September 23, 1997 (also the employe's last day of work). The commission concludes that the employe's behavior toward the patient's family went too far and was misconduct for unemployment insurance purposes. The commission therefore reverses the appeal tribunal decision.

On the evening of September 23, 1997, a patient called 911 and was brought into the hospital's emergency room for treatment of a respiratory condition by an EMS ambulance. The employe was in charge of emergency room staff during that time. Shortly after the patient arrived, the employe entered the room to deliver the patient's file to the doctor. The staff was beginning resuscitation efforts.

When the employe came into the room, he began shouting to the staff that they should not code (resuscitate) that patient. The employe indicated that they could not start CPR on the patient because there was an advance directive (a so-called "living will") in the patient's medical file. Shortly thereafter, while the physician on duty was talking with the patient's family, the employe went up to them and showed them the documentation, saying "well, this is what he's got written here. Do you believe to be true?" Later the employe said that the family was going against what the patient wants, that it was right there in writing and that the family was going against the patient's wishes. The patient's family still requested that efforts be made on the patient's behalf, but the patient still died.

The patient's living will forms part of an April 13, 1993 Durable Power of Attorney. This document states in part:

I value a full life more than a long life. If I have lost the ability to interact with others and have no reasonable chance of regaining this ability or if my suffering is intense and irreversible, I do not want to have my life prolonged. I would then ask not to be subjected to surgery or resuscitation measures, to intensive care services or to other life prolonging procedures including the administration of antibiotics or blood products or artificial nutrition and hydration. Specifically, if I am in a persistent vegetative state and in the opinion of my physician and consultants have no hope of regaining awareness and higher mental functions even though I have no terminal illness, I do not want to be kept alive by the foregoing therapies, including artificial administration of fluid and nutrition through any tube.

Following investigation of the incident, the employer discharged the employe on September 30, 1997.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. The commission concludes that the employe's conduct on the night in question easily meets this standard. First, on its face the patient's power of attorney was not applicable to the patient's circumstances when he first arrived at the hospital. It was the patient himself who had telephoned 911, which should be an indication that the patient was not yet ready to die. The document asks that the patient not be subjected to surgery or resuscitation measures, but only after the patient has "lost the ability to interact with others" and has "no reasonable chance of regaining this ability" or if his "suffering is intense and irreversible." There is no evidence to indicate that the patient's condition met these criteria so the living will on its face does not appear to be applicable. Second, the employe's demeanor toward the present members of the patient's family was highly inappropriate. The employe rudely and uncaringly interjected himself into the critical discussions the emergency room physician was having with the patient's family without, as noted above, a legitimate basis therefor.

The commission therefore finds that, in week 40 of 1997, the employe was discharged for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5). The commission also finds that the employe was paid benefits in the amount of $282.00 per week for each of weeks 40 of 1997 through 1 of 1998 and $290.00 per week for each of weeks 2 through 13 of 1998, totalling $7,428.00, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c). Although the overpayment did not result from employe fault as provided in Wis. Stat. § 108.04(13)(f), yet the overpayment also was not the result of departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 40 of 1997, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. Department form UCB-700, issued on October 10, 1997, is set aside. The employe must repay $7,428.00 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 employe 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: July 22, 1998
fischjo.urr : 105 : 1 MC 610.25

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

NOTE: As indicated above, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision. In finding no misconduct, the administrative law judge accepted as credible the employe's version of the events in question over that of the employer's witnesses, an emergency room staff nurse for the employer, and a member of the ambulance squad (who also works part time for the employer) that brought the patient into the hospital that evening. The commission has accepted the latter individuals' testimonies over that of the employe, as there is no indication in the record that either would have motive for providing embellished, exaggerated, or otherwise incorrect testimony regarding the events in question.

cc: ATTORNEY DENNIS J RYAN
306 E WILSON ST
MADISON WI 53703


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