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

CONSTANCE M TESKY, Employee

CRA HEALTH SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05202232WU


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a medical clinic, for two years as an RN. Her last day of work was October 28, 2005 (week 44).

On October 26, 2005, a unit clerk told the employee that a patient had come in needing an injection of Haldol, an anti-psychotic drug used to treat schizophrenia. Although the patient had a prescription for Haldol from a doctor and had been taking it successfully for years, the patient was new to the clinic and the employee was not familiar with him or his medications. The employee asked the unit clerk to discuss the matter with the administrator, because she was not comfortable giving an injection of a psychotropic medication.

Shortly thereafter, the employee's supervisor, Sara Parsch, directed the employee to give the injection. The employee responded that she was not comfortable giving psychotropic drugs because she had no experience with them or knowledge about them. Ms. Parsch reiterated that the employee should give the injection. Ms. Parsch left the medication on the counter and walked away. The employee approached the physician's assistant (hereinafter "PA") who had seen the patient that day and explained her concerns. The PA stated, "Not a problem. I'll get it." The employee then notified the unit clerk that the PA would be giving the injection.

Two days later the employee was discharged for refusing to give the injection. The issue to be decided is whether the employee's discharge was due to misconduct connected with her employment.

In Boynton Cab v. Neubeck, 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 employe, 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 employe'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' within the meaning of the statute."

The employee was discharged for refusing to administer an anti-psychotic injection to a patient. The employee had no experience with the medication in question and was unfamiliar with its side effects. The employee explained that, as an RN, it would have been her responsibility to deal with any symptoms in reaction to the medication. The employee felt she could not risk the safety of the patient. At the hearing the employee's supervisor, Sara Parsch, agreed that the employee's actions were based upon a professional concern about side effects of the medication, which she acknowledged could be serious and irreversible and, in fact, could even be fatal. Ms. Parsch further agreed that the person administering this medication should be familiar with the side effects and able to deal with them promptly, and that there was no doctor on site at the time of the incident. Ms. Parsch, however, made no attempt to address the employee's concerns, but simply ordered her to administer the injection.

The employee had no prior discipline for refusal to give medications and was generally regarded as an excellent nurse. She took steps to ensure that the patient received the medication he required by talking to the PA, who informed her he would handle it. The employee had not been warned that failure to give the injection herself would place her job in jeopardy. Under all the facts and circumstances, the commission is persuaded that the employee was attempting to act in furtherance of the employer's interests in providing safe patient care, and that her actions did not evince misconduct.

The commission, therefore, finds that in week 44 of 2005, the employee was discharged and not for misconduct connected with her employment, 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 44 of 2005, provided she is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed June 29, 2006
teskyco . urr : 164 : 8    MC 640.03

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge about witness credibility and demeanor. The commission's reversal is not the result of a differing assessment of witness credibility. Rather, the commission reverses as a matter of law based upon consideration of essentially the same set of facts as that found by the appeal tribunal.

cc:
Attorney John R. Jokela
Community Based Outpatient Clinic


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