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

VALERIE A BIRKHOLZ, Employee

COURT MANOR, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06200023AP


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 13 months as a certified nursing assistant for the employer, a long-term care facility. Her last day of work for the employer was November 7, 2005 (week 46).

The employer's rules required that in caring for the residents of the employer's nursing home facility its nursing assistants follow the written instructions set forth in each resident's "care plan." The employer's policies further specified that a worker's failure to comply with the employer's rules and expectations would lead to disciplinary action, and that four disciplinary infractions by a worker would be grounds for the worker's discharge.

On June 15, 2005, the employee was issued a written warning for failing to comply with the employer's attendance guidelines. Thereafter she had no further infractions of the employer's attendance guidelines and her attendance was satisfactory to the employer.

On October 14, 2005, while changing a resident's diaper the employee and another of the employer's nursing assistants turned the resident over in the resident's bed. The resident's written care plan specified that, because the resident had a fractured leg, the resident was only to be turned by three individuals working in tandem, one of which must be a nurse. Though the employee had asked one of the employer's floor nurses for assistance in turning the resident, the employee and the other nursing assistant did so without a nurse present because they became impatient for the nurse to arrive. Later that evening, the employer's floor nurse advised the employee that she would have to "write her up" for turning the resident over without a nurse present to assist in supporting the resident's fractured leg. The employee became angry with the floor nurse, began to argue with the floor nurse, and yelled at her in the presence of some residents at the employer's facility.

On October 17, 2005, the employer issued the employee a warning for making "disrespectful comments" toward the floor nurse and for yelling at her in the presence of the employer's facility residents on October 14.

On October 20, 2005, the employer issued the employee another written warning for her actions in turning the resident in bed without the assistance of a floor nurse on October 14, in violation of the requirements set forth by the resident's written care plan. The October 20 warning cautioned the employee that any further instance of failing to follow residents' care plans would result in further discipline and "can lead to termination."

On November 6, 2005, the employee was caring for a resident ("Resident X") whose written care plan required that when she was left in her bed the "bed alarm" be turned on and the non-skid socks with rubber nubbin soles be placed on the resident's feet. The precautions of the bed alarm and non-skid socks were deemed necessary for Resident X's safety because Resident X required assistance to walk and had a history of falling down. The bed alarm mechanism was specifically designed to alert the employer's nursing staff if Resident X made any attempts to get out of her bed. While putting Resident X down for bed that night, the employee was instructed by one of the employer's floor nurses to attend to another resident in a nearby room ("Resident Y"), who was vomiting. The employee immediately left Resident X alone in her room to attend to Resident Y; the employee did not turn on Resident X's bed alarm and she did not put the non-skid socks on Resident X. About four minutes after she left Resident X alone, Resident X attempted to get out of her bed and fell to the floor.

On November 9, 2005 (week 46), the employer discharged the employee for failing to follow Resident X's care plan on November 6, 2005, resulting in that resident's fall and, consequently, for having accumulated four disciplinary infractions in her employment with the employer.

The issue to be decided is whether the employee's actions, for which she was discharged, constitute misconduct connected with the employment.

The employee argued that her discharge was not for misconduct connected with her work. The commission agrees.

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 insurance 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."

Wis. Admin. Code § DWD 132.05 further provides that, in applying the legal standard set forth by the court in Boynton Cab, disqualifying misconduct for unemployment insurance purposes will be found to have occurred where a caregiver employed by a nursing home has engaged in "repeated failure(s) to provide treatment or care without good cause which reasonably could adversely affect a resident's health, comfort or well-being."

The employer had a policy which provided for discharge if a worker was written up four times in a 12-month period. The employee was written up in June for attendance violations, and she did not thereafter have any more attendance infractions. In October, the employee was given two different warnings for two aspects of the same event. The employee was warned for turning a resident in bed without a floor nurse and for arguing with the nurse about that incident. The employee's job on October 18 was to see that the resident was cleaned and turned. The nurse was passing meds so the employee asked her if she would come in. The nurse said she would come in right away. They waited for about five minutes and asked again. The nurse indicated she was too busy. The employee went back to the resident's room. They had the resident undressed and exposed because the employee thought the nurse was going to come right away. The employee and her co-worker waited for five minutes and then the employee asked the nurse to come because the employee had another nursing assistant there. The nurse said she would be right there. The other assistant and the employee had already taken the diaper tabs off because the resident was dirty from a bowel movement. They had taken the covers back so they could clean her up. The employee did not want to leave the resident like that. The employee went to look for the nurse but the nurse had gone. The employee turned the resident without waiting for the nurse because she did not want to leave her like that. The employee went to take a break later in the day and saw the nurse sitting behind the desk. The nurse asked if the employee had turned the resident over and the employee said that she had. The nurse said she would write the employee and co-worker up for this. The employee stated she believed this was unfair when the nurse was aware that the employee and the co-worker were waiting for the nurse and asked three times for help. The employee and the nurse argued about the matter. The employee stated her position that she could not have simply left the resident in that condition. The employee failed to follow the care plan of the resident, but believed that she was acting in the resident's best interests because she felt she could not leave the resident in a soiled condition for too long. The employee had repeatedly requested the nurse to come in and assist her, but the nurse failed to do so, in spite of the fact that the nurse repeatedly informed the employee the nurse would come shortly. The employee may also have shown poor judgment in arguing with the nurse about the matter, but she was very upset about the situation.

With respect to the final incident, the employee followed the instructions of the nurse and answered a call light. The employee did not intentionally fail to press the bed alarm button or put non-skids socks on the resident. While the consequences of her actions were potentially very serious, the employee's actions did not rise to the level of misconduct connected with her work. The record reflects that the employee cared deeply about the residents. In addition, the employer's director of nursing characterized the employee as a good aide who had made some bad decisions. The director of nursing told the employee she had no choice but to let her go, because the employer's policy provides that a worker is terminated after four write-ups in 12 months, suggesting that the employee would not have been discharged for the final two incidents had she not had the June attendance infraction.

The commission therefore finds that in week 46 of 2005, the employee was discharged but that her discharge was not for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 46 of 2005, if otherwise qualified.

Dated and mailed April 19, 2006
birkhva . urr : 145 : 8   MC 657

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not consult with the ALJ who held the hearing. The commission did not reverse the ALJ based on a different impression of witness credibility and demeanor. In fact, most of the testimony in this case was not disputed. Rather, the commission reversed the ALJ's decision because it reached a different conclusion when applying the law to the facts found by the ALJ.

cc: Court Manor - Ashland, WI


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