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

KIMBERLY R JOHNSON, Employee

HORIZON HOME CARE & HOSPICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07603355MW


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 the employer, a provider of home health and hospice services, for approximately nine years, most recently as an assistant controller. Her last day of work was April 12, 2007 (week 15).

The employee's job was to supervise the billing department, comprised of five or six "billers," which was responsible for collecting accounts receivable. Many of these accounts were payable by insurance companies, which the employer conceded would "play a lot of games" with respect to processing and denying claims. If an insurer did not pay a claim within eighteen months, an appeal could be filed. Accounts that proved uncollectible were ultimately written off. Once a biller reached the point with an insurance company where he or she could not collect any further, the biller would complete paperwork to treat it as a "write-off" and give it to the employee for review. Once a month the employee forwarded a list of overdue accounts to the senior vice president and chief financial officer, Laura Krause.

The employer has a four step disciplinary process. On June 10, 2005, the employee was given a Step Two warning for writing off $80,000 worth of accounts that were appealed too late. She had received no previous corrective action regarding this issue.

In August of 2006, the employee received a job evaluation in which, on a numerical scale going up to 6, she was given ratings of 3 and higher, and written comments which were mostly very positive. The employee's manager, Ms. Krause, who testified at the hearing that the employee was a very good employee in almost all areas, noted on the review, "Kim needs to focus on getting the Insurance Receivables down to a normal level."

Between April of 2006 and December of 2006 there were many delinquent accounts receivable, ranging from a total of $110,00 to $700,000 at any given time. The high number of delinquent accounts resulted, in part, from the fact that the billing department was understaffed, and staff were working on new accounts while the older accounts were languishing. Many of the older bills, which had been originally denied, were resubmitted, but were denied a second time.

In the last quarter of 2006 the employee proposed writing off $500,000. Ms. Krause, to whom the employee submitted a monthly report, was out on a medical leave from December 2006 through February 2007. When Ms. Krause returned from leave and saw the amount of write-offs the employee was proposing, she made a decision to discharge the employee.

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 unsatisfactory job performance because of excessive accounts receivable write-offs. Although the sums of money at issue were considerable, the evidence failed to establish that these monies were collectible. Both parties agreed that the insurance companies from whom the payments were due went to some lengths to avoid their obligations, and it is not clear that anything more could have been done to ensure collection of the unpaid bills, particularly given the limited staff. While at the hearing the employer contended that the employee failed to meet a deadline, the record contains little or no evidence regarding the circumstances of such failure, and the commission is unpersuaded that the employee engaged in the type of culpable conduct that would rise to the level of misconduct, within the meaning of the law.

The commission, therefore, finds that in week 15 of 2007, 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 15 of 2007, provided she is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed September 20, 2007
johnski . urr : 164 : 1    MC 660.01

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission conferred with the administrative law judge regarding witness credibility and demeanor. The administrative law judge had no demeanor impressions to impart.

 


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uploaded 2007/09/28