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

SHANNA M KOHLS, Employee

WELLS NATURE VIEW SENIOR CITIZEN ASSISTED LIVING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06201458EC


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 more than four and one-half years as a caregiver for the employer, an assisted living facility. She was discharged on June 15, 2006 (week 24).

The issue is whether the actions for which the employee was discharged constitute misconduct connected with her employment.

In March of 2005, the employee received a pay reduction, was placed on probation for 90 days, and was required to undergo medication retraining when the employer discovered she had made five medication errors.

In January of 2006, the employee was issued a final written warning when the employer discovered that she had failed to administer prescribed medications to a resident, and had then lied to the employer in an attempt to conceal this failure. The employee was advised both in writing and in person by one of her superiors that future medication errors would result in her termination.

In a letter to the employer in response to the January 2006 warning, the employee stated, in relevant part:

I am really sorry for making a med mistake again. From now on, I will ask for help and double check my meds, and pay attention a little closer to new med changes. I am very sorry for my mistakes and will do better.

Medications to be administered to residents are listed in a medication book. The employer's policies require that this book be consulted each time medications are administered.

On June 15, 2006, the employee failed to consult the medication book and gave a resident 15 pills which had not been prescribed for her. When the employee realized her mistake, she reported it to the employer. The employee explained that she made the medication error when some of the residents for whom she was responsible were speaking to her and she got sidetracked.

None of the employer's other caregivers had engaged in a continuing pattern of medication errors similar to that exhibited by the employee.

The commission has consistently held caregivers to a high standard in regard to the dispensing and recording of medications.

In Franklin v. Harmony Living Centers LLC, UI Hearing No. 01608854RC (LIRC Jan. 23, 2002), the commission held that the claimant's failure to record that she had dispensed medications to two residents of an assisted living facility constituted gross negligence rising to the level of misconduct connected with her work.

In Barnes v. Methodist Manor, Inc., UI Hearing No. 03603466MW (LIRC Jan. 7, 2004), the employee, after receiving a written warning for a prior medication error, was discharged two weeks later, after medication retraining, when she recorded that she had administered a resident's narcotic medication when she had in fact failed to do so. The employee explained that this error had occurred because it was busy at the time and she had been interrupted while she was in the process of obtaining and administering the medication. In its decision, the commission, noting that the consequence of the employee's medication errors was substantial, held that they constituted misconduct.

In Sayre v. Applewood Homes, Inc., UI Hearing No. 03007100JF (LIRC April 29, 2004), the employee administered a discontinued medication to a nursing home resident. The commission, noting that those who provide direct care in nursing homes are to be held to a very high standard, due to the fragile and vulnerable population they serve; and relying upon the fact that the employee had been warned after making prior medication errors, had received medication retraining, was on notice that a future medication error could result in her discharge, and could have avoided the error by simply referring to the medication chart, held that the employee had engaged in misconduct.

The facts under consideration here are even more compelling than those in Franklin, Barnes, and Sayre, supra. The employee had made multiple and significant medication errors on two prior occasions, and had received discipline and warnings as a result; had participated in medication retraining; was on notice that any further medication errors would result in her termination; had agreed to double check the medication book, as required, before administering any medications but failed to do so; and, as a result, administered to a resident 15 pills not prescribed for her. The simple fact that she realized and reported the error does little to mitigate it.

The commission therefore concludes that the employee was discharged in week 24 of 2006 for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $3,048 for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1),and that the employee is required, pursuant to Wis. Stat. § 108.22(8)(a), to repay this amount to the Unemployment Reserve Fund.

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, within the meaning of Wis. Stat. § 108.04(13)(f), the overpayment was not the result of department error. See Wis. Stat. § 108.22(8)(c).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 24 of 2006, 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 the sum of $3,048 to the Unemployment Reserve Fund.

The initial Benefit Computation (Form UCB-700), issued on June 16, 2006, is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

Dated and mailed October 6, 2006
kohlssh . urr : 115 : 1  MC 610.25  MC 660.01

/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 before reversing her decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing interpretation of the relevant law. The commission also notes in this regard that the hearing was held by telephone so the administrative law judge, who was not able to observe the demeanor of any of the hearing witnesses, would not be in a better position to assess this demeanor than the commission.

 

[Ed. Note: This decision is shown here as affected by a technical corrective amendment made on October 17, 2006]


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2006/10/09