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


NANCY L ZOMOK, Employe

SCHMITT WOODLAND HILLS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00001421DV


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 employe is eligible for benefits as of week 37 of 1999, if otherwise qualified.

Dated and mailed May 31, 2000
zomokna.usd : 105 : 6   MC 610.25

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission has affirmed the appeal tribunal decision in this case, because it agrees with the appeal tribunal's conclusion of no misconduct. The Wisconsin Administrative Code specifically defines misconduct as applied to abuse of a patient of a health care facility, at § DWD 132.05(2):

2) STANDARD. Discharge of an employe by an employing unit for misconduct connected with his or her employment under s. 108.04(5), Stats., may include the discharge of an employe by a health care facility for abuse of a patient. Abuse of a patient includes, but is not limited to:

(a) Except when required for treatment, care or safety, any single or repeated intentional act or threat through contact or communication involving force, violence, harassment, deprivation, withholding care, sexual contact, sexual intercourse, or mental pressure, which causes physical pain or injury, or which reasonably could cause physical pain or injury, fear or severe emotional distress;

(b) Any gross or repeated failure to provide treatment or care without good cause which reasonably could adversely affect a patient's health, comfort or well-being;

(c) Any intentional act which subjects a patient to gross insult, ridicule or humiliation, or repeated failure to treat a patient with dignity and respect; and

(d) Knowingly permitting another person to do any of the acts in par. (a), (b) or (c) or knowingly failing to take reasonable steps to prevent another person from doing any of the acts in par. (a), (b) or (c).

The employer did not establish that the employe committed misconduct, as defined by the above standard. The record indicates, rather, isolated instances of poor judgment by the employe coupled with proper corrective action by the employe.

For these reasons, and those stated in the appeal tribunal decision, the commission agrees with the conclusion of no misconduct. The commission therefore has affirmed the appeal tribunal decision.


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