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

DONNA L KOWALCZYK, Employee

COUNTY OF WALWORTH, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07003222JV


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 21 of 2007, 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.

Dated and mailed February 1, 2008
kowaldo . usd : 115 : 1 MC 610.25  MC 660.01   PC 715  PC 714.07

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION


The employee, who worked 30 years as a licensed practical nurse/unit supervisor for the employer, a county nursing home, made medication errors in 2004 for which she was suspended and received retraining.

In March and April of 2006, the employee made four significant medication errors. Her supervisor discussed each of these errors with her at the time, and the employee agreed to use more care in dispensing medication.

On April 17, 2007, the employee was suspended for 10 days for having made these four medication errors. The employee was also placed on a performance improvement plan at that time. This plan reminded the employee that it was standard practice to check medications three times before administering them.

On May 14 and 16, 2007, the employee failed to give three medications to residents, and was unable to explain this failure. She was discharged as a result.

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.

In Kohls v. Wells Nature View Senior Citizen Assisted Living, Inc., UI Hearing No. 06201458EC (LIRC Oct. 6, 2006), the employee, after prior warning, retraining, and discipline addressing multiple medication errors, administered medication to a nursing home resident which had not been prescribed for the resident. The commission held that the employee had engaged in misconduct.

Here, the employee had received warning, retraining, counseling, and discipline after committing multiple medication errors. She was clearly on notice that these errors were unsatisfactory and placed her job in jeopardy. Despite this, less than one week after returning from her 10-day suspension, and after promising the employer she would carefully check each medication she administered, she committed three additional medication errors.

These actions support a conclusion of misconduct.

The employee offers several arguments in her petition.

The employee takes issue with the fact that her supervisor, "her accuser," did not appear at hearing and, consequently, she was deprived of her right of confrontation. An administrative proceeding, however, is not a criminal trial, and there is no right of confrontation. Moreover, the employee had the ability to request or compel her supervisor's appearance at hearing but failed to do so.

The employee also asserts that the testimony offered by the employer's human resources representative and director of nursing, who did not witness the subject medication errors, constitutes only hearsay evidence as to those errors. She is correct. However, the employee's testimony that she did not dispute that she had made the errors (see pages 12, 13, and 14 of synopsis) constitutes competent evidence establishing that the employee committed the errors upon which her discharge was based.

The employee references the 3-day suspension she received for absenteeism, but her discharge was not based upon her attendance record.

The employee disputes that any proof was offered documenting that the average provider committed only one or two medication errors in a year. However, testimony may constitute proof, and the director of nursing testified to this effect without rebuttal.

Finally, the employee states in her petition that, to her knowledge, no other nurse or CMA (certified medication assistant) had been terminated for making medication errors. However, the only testimony in this regard in the record is the director of nursing's unrebutted testimony that she did not have a nurse in the facility with a record of medication errors comparable to the employee's.

cc: Lakeland Health Care Center



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