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

CHERYL A PUTCHEL, Employee

WHEATON FRANCISCAN HEALTHCARE
MARIAN FRANCISCAN CENTER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08604313MW


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 nursing home, for about four years as a registered nurse. Her last day of work was May 15, 2008 (week 20).

The employee was required to keep records of the medications and treatments she administered to residents. This documentation was to be completed after the medication or treatment was given. The employer's work rules provide that negligent performance of tasks and the falsification of records can result in discharge.

In early December of 2007 the employee removed hearing aids from a resident and locked them away for the night. She properly charted her actions. However, at the end of the employee's shift, the resident requested the hearing aids back. The employee gave the resident the hearing aids, then left without charting having done so. The employer discovered this omission the following day because the hearing aids were missing. The hearing aids reappeared several days later and the employee received a written warning for her failure to chart.

In late January of 2008, a resident reported that some jewelry was missing. The employee helped look for it, but failed to file a missing property report. There was another nurse on duty at the time who was aware of the missing jewelry and the employee mistakenly assumed that she had filed the report. On February 29, 2008, the employee received a final written warning for failing to file the report. The employee was told that further failure to follow policy and procedures would result in disciplinary action up to and including termination.

On May 14, 2008, the employee recorded on a resident's chart that she performed wound care for that resident when she had not done so. The employee started to do the task but was called away to deal with an urgent situation involving another resident and forgot to go back to it. When the employer questioned the employee about the matter she acknowledged that she had documented the task, but had become distracted and failed to complete it. The employee was discharged based upon the three incidents described above.

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 employer contended that the employee continually failed to follow policies and procedures and that her actions evinced misconduct. The commission disagrees. The employee was discharged due to three performance errors. The first, a failure to chart the whereabouts of a resident's hearing aids, and the second, a failure to file a missing property report, were isolated instances of ordinary negligence involving resident property. While the employee's failures demonstrated a degree of carelessness on her part, they were not so deliberate or egregious as to reflect misconduct.

The third incident was more serious. The employee charted a medical procedure she had not yet performed. However, while the employer characterized the employee's actions as dishonest, the commission does not question the employee's testimony that she intended to perform the task but got distracted by an emergency situation. The employee's actions in charting a task she had not yet performed, while in violation of employer policy, were undertaken in the interest of efficiency and not with deliberate intent to falsify a report. The employee explained that charting in advance was not her usual practice, but that she did so in this instance because she was charting medications for the same resident and was about to do the wound care right away. The employee had not received previous warnings for charting a procedure before it was performed, and her prior warnings were for unrelated and less serious conduct. Under all the circumstances, the commission concludes that, while the employee was a less-than-model worker, the conduct for which she was discharged did not rise to the level of misconduct, as defined in Boynton Cab.

The commission, therefore, finds that in week 20 of 2008, 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 20 of 2008, provided she is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed November 12, 2008
putchch . urr : 164 : 1 MC 660.01  MC 687

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission conferred with the administrative law judge about witness credibility and demeanor. The administrative law judge indicated that the employee frequently got off task with her testimony. While the employee may have had difficulty focusing at the hearing, this fact alone does not lead the employee to doubt the credibility of her testimony.

 

cc: Wheaton Franciscan Healthcare (Brookfield, Wisconsin)


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uploaded 2008/11/17