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

ROBIN O CARLSON, Employee

ST JOSEPHS REHABILITATION CTR, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06201209WR


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. On September 15, 2006, the commission ordered the taking of additional testimony before an administrative law judge acting on behalf of the commission. The additional hearing was conducted on December 20, 2006. The matter was then forwarded to the commission for disposition.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ at the original hearing and the remand hearing. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked over two years as a supportive service certified nursing assistant for the employer, a nursing home business. In addition to assisting residents with range of motion and meals, she performed many other duties, including maintaining wheelchairs and medical equipment, and performing some hearing aid repair. Her last day of work was May 3, 2006 (week 18) when she was discharged.

In the last year of the employee's employment, she received three disciplinary actions. The first, in May 2005, was an oral/written discipline for failing to properly ambulate a resident resulting in a fall. In October 2005, she received a written warning for speeding as she was driving a resident to an appointment in the employer's van. The employee consequently lost her driving duties. On December 12, 2005, the employee received a final warning and suspension for improper assistance of a resident when the resident wanted to take a smoking break outside and fell. At the time of the last discipline, the employee was warned that further incidents would result in discharge.

On April 10, 2006, the employee began assisting a resident with range of motion exercises while the resident was in bed. The bed was in a raised position when the employee noticed spilled water on the floor. To avoid injury from the water, the employee immediately left the room to retrieve a towel to clean up the spill. She left the resident in the raised bed with the side rails up. As the employee retrieved a towel, a co-worker instructed her to lower the bed before leaving the resident unattended. A few days earlier, the employee had been given a similar reminder to always lower raised beds.

When the employer's management learned of these two raised bed events, it conducted an investigation resulting in the employee's discharge on May 3, 2006 (week 18). The employee filed a claim for unemployment insurance benefits.

Wis. Stat. § 108.04(5) provides that a worker who is discharged for misconduct connected with his or her employment is ineligible for unemployment insurance benefits. Thus, the issue before the commission is whether the employee's discharge was for misconduct connected with the employment.

The employer contended that the employee's failure to lower the resident's bed after being spoken with about it just a few days earlier and in light of her prior disciplinary history constituted misconduct. This contention cannot be sustained. 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' within 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 care-giver 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."

Given the vulnerable population for which the employee cared, the commission takes this case seriously. While the employee's actions in leaving the patient in a raised bed, albeit with the side rails up, could have resulted in harm, they were not intentional. She noticed a dangerous situation, the spilled water on the floor, while performing the range of motion. She reacted to correct that situation without lowering the bed first. The employee's behavior was more akin to ordinary negligence in isolated instances or good faith errors in judgment than culpable negligence or intentional conduct. Further, while the van driving incident involved more culpable behavior, the employee was disciplined for that and the remaining incidents were not gross negligence so culpable as to rise to the level of misconduct. Finally, the incidents were not repetitive.

The commission therefore finds that in week 18 of 2006, the employee was discharged but her discharge was not for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04(5) or Wis. Admin. Code § DWD 132.05.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed January 16, 2007
carlsro . urr : 150 : 8   MC 660.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not consult with the administrative law judge prior to reversing. The commission did not reverse the ALJ based on a differing impression of witness credibility or demeanor. Instead, the commission reversed the ALJ's decision because it reached a differing legal conclusion when applying the law to the record resulting from the original hearing and the remand hearing.


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