JESSICA A RAJEK, Employee

COUNTY OF LINCOLN, Employer

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. The commission has reviewed the evidence submitted to the ALJ and listened to the digital recording of the hearing. Based on its review, the commission makes the following:

The employee worked as a certified nursing assistant for almost seven years for the employer, a skilled nursing care facility. On October 2, 2005, four of the twelve CNAs assigned to the employee's unit called in sick. As a result, the employee was alone on her wing and given two additional residents to care for. The facility was short-staffed for CNAs on at least another of the three wings.

At about 10:45 a.m., the employee began checking to determine that all the residents were up and ready for lunch. She noticed that one of the residents, (hereinafter, AB), who generally insisted upon getting up at about 10:00 a.m., was still in bed. She tried to find which CNA was assigned to her and then learned that no one had been assigned. The employee decided to assume her cares and told her that it was time to get up. AB expressed anger that no one had attended to her earlier and then refused to get up. The employee reminded her that lunch would be served shortly and then placed the transfer belt on her. AB elbowed the employee in the stomach as she was helping her to dress. The employee very loudly told her that her behavior was inappropriate, that she did not want to be hit, and that she did not have to put up with it. Once in her wheelchair, AB struck the employee in the face with her fist five times. The employee grabbed her wrists to prevent any further blows and AB then "head butted" her in the face. The employee then shouted that she was a "psycho" and that she belonged in the health care center, a locked unit for those with psychological problems.

Another CNA who had heard the loud voices of both the employee and AB from two rooms away, entered the room and told the employee to "knock it off" or "hold it down", and informed her that she was too loud. The employee replied that she didn't care, that AB had repeatedly hit her, and that she wasn't even assigned to her. The other CNA did not offer to assist the employee with AB or to assume her cares. AB shouted at the employee to leave. The employee gave AB her shirt and left the room. She then reported the incident to the licensed practical nurse, who replied that she would try to talk to her. No one told the employee to cease caring for AB that day. A resident and at least one visitor had overheard the altercation and commented to a CNA that the employee's behavior was demeaning and that no one should be treated that way.

The LPN submitted a written statement to the director of nurses indicating that the employee reported the incident to her, that the employee had a small pink/red area on her left cheekbone, and that she interviewed AB, who seemed "visibly upset/shaking" and had stated repeatedly that she did not want the employee to care for her again because she's "so rough". She added to the report that AB cried and stated that the employee shoved her first. The incident was reported to the DON, who interviewed all of those with any knowledge of the incident on October 3. AB could not recall the incident when interviewed by the DON on October 3.

At the time of discharge, the DON commented to the employee that her behavior was "close to abuse" of the resident. The administrator and the DON informed her that the incident would be reported to the state as abuse, and then discharged her for that reason on October 4, 2005 (week 41).

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

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."

The Wisconsin Administrative Code provides a standard for determining whether misconduct exists when an employee is discharged for alleged abuse of a patient. Wis. Admin. Code § DWD 132.05(2) states:

2) STANDARD. Discharge of an employee by an employing unit for misconduct connected with his or her employment under s. 108.04(5), Stats., may include the discharge of an employee by a health care facility for abuse of a patient. Abuse of a patient 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 par. (a), (b) or (c) or knowingly failing to take reasonable steps to prevent another person from doing any of the acts in par. (a), (b) or (c).

The employee's actions in yelling at the resident, stating she was a psycho, stating she should be placed in a mental facility, and grabbing the resident's wrists constituted resident abuse. The employee was loud enough to be heard two doors down. A reasonable person in the employee's circumstances would understand her conduct to constitute a willful interference with the employer's interests. The employee should have walked away. The employee knew she should have walked away and had done so in the past when struck by a resident. The employee's conduct was not just threatening and demeaning to the resident, but it caused another resident and visitor to be apprehensive of the care provided to residents. The employee's acts and statements were not unintentional and were not excused by her workload.

The commission therefore finds that in week 41 of 2005 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 $6,500.00 for weeks 43 through 53 of 2005, and weeks 1 through 15 of 2006, 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.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 41 of 2005, 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 $6,500.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on October 24, 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.

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 May 25, 2006
rajekje . urr : 132 : 8 :  MC 610.25

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission did consult with the ALJ who presided at the hearing regarding her impressions of witness credibility and demeanor. The ALJ indicated that she believed everyone gave credible testimony and did not believe that anyone was lying. The ALJ did not relate any specific demeanor impressions of the witnesses that led to her decision.

The commission does not agree with the employer's assertions that the ALJ violated the employer's 14th Amendment Rights. The ALJ did not steer testimony, or show by the tone or inflections in her questions that she was not impartial. The ALJ did break in during the employer's attorney's questioning but did so to obtain clarifying testimony. Further, the ALJ at one point apologized to the employer's attorney for breaking in on his questions. The commission has simply reached a different legal conclusion based on the evidence submitted at the hearing. The ALJ reasoned that the employee's actions did not fit within the definition of abuse, the commission disagrees. Further, Wis. Admin. Code § DWD 132.05(2) is not an inclusive list of what constitutes resident abuse or misconduct.

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:
Attorney Dean R. Dietrich
Pine Crest Nursing Home
Attorney Keith F. Ellison

Appealed to Circuit Court.  Affirmed March 14, 2007.

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