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

CHELSEA H KLIMEK, Employee

HARBOR SENIOR CONCEPTS LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08003919MD


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, an operator of an assisted living facility for individuals with Alzheimer's disease and dementia, for two years, most recently as a resident specialist. Her last day of work was August 12, 2008 (week 33).

During the course of her two-year employment the employee received training with regard to passing, documenting and handling medication on two separate occasions.

In October of 2007, the employee was given a disciplinary form for medication errors. The employee had initialed that medication was given, but the medication in question was found still in the bubble pack. In addition, the employee used the last syringe of insulin for a resident and did not order more.

In November of 2007 the employer met with the employee to discuss her negative attitude in the workplace.

In December of 2007 the employee received a warning for not transferring information contained in the November medication report to the December report.

In May of 2008 the employee left the workplace without performing a required narcotic count. In addition, her initials were missing from the medication record in two instances when medications had been given. The employee received a warning and was told that further errors would cost her her job. Although at the hearing the employee contended she had permission to leave early on the date the narcotic count was not performed, she signed the warning without writing anything in the space for employee comments.

In July of 2008 the employer had a meeting with the employee to discuss her erratic behavior at the workplace, including getting upset at co-workers and crying.

Over the weekend of August 9 and 10, 2008, the employee made four separate medication errors. She administered the drug digoxin on two occasions without first taking a pulse, as required. She left three "holes" in the medication record where medications were given but not initialed. In another instance a resident refused medication, but the employee did not destroy the refused medications as required. Finally, pills were found on the dining floor after the employee passed medications to residents. The employee denied responsibility for the pills on the floor and insisted they were already there when her shift began. The employee did not explain why, assuming this was the case, she chose to leave medications on the floor rather than picking them up and discarding them.

The employee was discharged on August 12, 2008, for medication errors and because of her poor attitude.

The question to decide is whether the employee's discharge was for 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 failed to establish that any attitude problems the employee may have been experiencing warranted a finding of misconduct on her part. However, the commission concludes that the employee's actions in making repeated medication errors evinced misconduct. Although the employee denied culpability in two of the instances--she contended she had permission to leave early on the occasion she left work without performing a required narcotic count and that, in the final instance, the pills were already on the floor before she began her shift--the commission does not find those denials persuasive. Moreover, even if it were accept the employee's explanations for those two instances, the employee did not dispute the remaining allegations and could offer no compelling explanation for her actions in making frequent and serious medication errors. The employee had been trained two times in how to correctly pass medications, had received warnings about passing medications, and was aware of the employer's expectations. The record does not establish that the employee lacked the ability to perform the job, and her errors appear to stem from carelessness on her part.

The commission has consistently held caregivers to a high standard in regard to the dispensing and recording of medications and has found that failures to follow protocol regarding medications constitutes misconduct. See, Kowalczyk v. County of Walworth, UI Hearing No. 07003222JV (LIRC Feb. 1, 2008), citing Franklin v. Harmony Living Centers LLC, UI Hearing No. 01608854RC (LIRC Jan. 23, 2002)(failure to record having dispensed medications to two residents of an assisted living facility constituted gross negligence rising to the level of misconduct); Barnes v. Methodist Manor, Inc., UI Hearing No. 03603466MW (LIRC Jan. 7, 2004)(misconduct found where the employee, after receiving a written warning for a prior medication error two weeks earlier and being given retraining, recorded that she had administered a resident's narcotic medication when she had not done so); Sayre v. Applewood Homes, Inc., UI Hearing No. 03007100JF (LIRC April 29, 2004)(misconduct found where the employee administered a discontinued medication to a nursing home resident. The commission noted 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). Consistent with those decisions, the commission concludes that the employee's actions here evinced misconduct.

The commission, therefore, finds that in week 33 of 2008, the employee was discharged for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in weeks 33 through 46 of 2008 in the total amount of $1,713, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), she is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 33 of 2008 and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. She is required to repay the sum of $1,713 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on August 12, 2008, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

Dated and mailed December 23, 2008
klimech . urr : 164 : 9  MC 660.01

/s/ 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 had no demeanor impressions to impart.

Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to off set overpayment of U.I. and other special benefit programs that are due to this state, another state, or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P.O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

 

cc: Harbor Senior Concepts LLC - Stoughton, WI


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2009/01/26