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

LINDA M VAN LANEN, Employee

AURORA MEDICAL GROUP INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06402787GB


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 over 32 years, most recently as a care manager assistant for the employer, a healthcare provider. Her last day of work was on September 27, 2006 (week 39).

In August of 2005, the employer received complaints regarding duties that the employee was failing to perform in a timely fashion. She was instructed to work on four specified priorities before beginning other work. Two of those priorities were advanced care plans and entering immunizations. The employer indicated that the employee, for a six-year period of time, was not able to perform her work in a timely fashion.

In the employee's January of 2006 performance review, it was noted that although there had been improvement in the timeliness of tasks, there were still delays.

On August 1, 2006, the employee was given a warning and a three-day suspension. She was informed that it was determined that she was untimely in completing advanced care plans and entering immunization information. The advanced care plans were to be done daily and the immunizations were to be entered weekly, and no more than one month after the immunization. In addition, she was advised that she had to call in her time using her work telephone. Moreover, she could not have more than one time adjustment per pay period.

The employee, after she returned to work from her suspension, made an effort to improve her logging habits. The employee did not always get the advanced care plans done on time. She explained that the manner in which the employer handled them changed several times. With respect to the child immunizations, the employee explained that she was not able to do data entry quickly, but she made an effort to be quicker. She stopped taking breaks and attempted to do a better job. Even with additional effort on her part, the employee was unable to complete all her tasks. The employee had health problems, specifically, after the death of her husband she suffered from depression and she would either make mistakes or could not enter data quickly enough.

In January of 2006, the employee went to the doctor because she was having trouble remembering things. She felt overwhelmed because she would have a pile of work when she would go to work on Mondays. The employee, on several occasions, called the Employee Assistance Program and they would refer her to a counselor or they would advise her on how to proceed. The employee, prior to her discharge, did not inform the employer of her medical condition.

On September 22, 2006, the employer received complaints regarding a patient not receiving an advance care plan. The employee's supervisor conducted an investigation and found at least 41 advanced care plans on the employee's desk. Her supervisor determined that the last time the employee worked on an advanced care plan was in late July. In addition, it was determined that the last immunization that the employee entered was on August 22.

On September 27, 2006, the employee was informed that she was discharged. Although calling in her time had improved, she had not timely completed the advanced care plans or immunizations. In addition, she had failed to send packets to two clients. Moreover, she had two time adjustments in two separate pay periods.

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with her 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' within the meaning of the statute."

The employee argued that she was discharged but that her discharge was not for misconduct connected with her employment. She argued that she merely made a mistake when she entered the wrong codes on her time report. She also argued that she did not have enough time to perform all the duties assigned. She argued that her supervisor and other workers would also give her additional work to perform. In addition, she had been diagnosed with depression, which affected her ability to complete her work on time. The commission agrees.

The commission is convinced that the employee merely made a mistake in entering her time codes. The employee entered an incorrect leave code but did not gain anything by the error. The commission notes that the employer considered the employee's inability to complete her work in a timely fashion to be an on-going problem, and while the employee had periods of improvement, it was not established that she was able to perform her work in a satisfactory and timely manner on any consistent basis. The employee credibly testified that she was performing her job to the best of her ability, and explained that her medical condition interfered with her ability to work accurately. The employer presented no evidence that the employee was engaged in other pursuits when she should have been working. The employee indicated that her medical condition exacerbated her problems at work and had taken steps to address this problem. While she should have discussed this situation with her supervisor, the commission cannot conclude that her failure to bring up this matter to her supervisor, when she was going to an Employee Assistance Program, and seeking counseling, amounted to such an intentional and substantial disregard of the employer's interests as to amount to misconduct.

The commission therefore finds that in week 39 of 2006, 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 39 of 2006, if otherwise qualified.

Dated and mailed February 28, 2007
vanlali . urr : 145 : 1  MC 657  VAN LANEN

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ did not specifically remember the demeanor of the witnesses, but she was struck by the fact that the employee was able to catch up on her work on one occasion after she had been told that she could not take time off until her work was completed. However, the commission credited the employee's testimony that she worked to the best of her ability but was simply unable to either prioritize her work or complete her work in a timely manner for the reasons noted in its decision.

cc:
Attorney Mark Mahoney
Aurora Medical Group (Green Bay, Wisconsin)


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