Pemiscot County Memorial Hosp. v. Missouri Labor & Industrial Relations Com'n

• Decision Date: 04 May 1995
• Docket Number: No. 19769,19769
• Citation: 897 S.W.2d 222
• Court: Missouri Court of Appeals
• Parties: PEMISCOT COUNTY MEMORIAL HOSPITAL, a Missouri Corporation, Appellant-Petitioner, v. MISSOURI LABOR & INDUSTRIAL RELATIONS COMMISSION; Henry Panethiere, Chairman; Philip M. Barry, Member; Robert Thane Johnson, Member; and Charles Lewis, Respondents-Respondents.

Page 222

897 S.W.2d 222

PEMISCOT COUNTY MEMORIAL HOSPITAL, a Missouri Corporation Appellant-Petitioner, v. MISSOURI LABOR & INDUSTRIAL RELATIONS COMMISSION; Henry Panethiere, Chairman; Philip M. Barry, Member Robert Thane Johnson, Member; and Charles Lewis, Respondents-Respondents.

No. 19769.

Missouri Court of Appeals,

Southern District,

Division One.

May 4, 1995.

W. Edward Reeves, Ward & Reeves, Caruthersville, for appellant.

John B. Keller, II, for Labor and Industrial Relations Com'n.

Sandy Bowers, Jefferson City, for Division of Employment Sec.

FLANIGAN, Judge.

Charles Lewis filed a claim for unemployment benefits under the Missouri Employment Security Law [Ch. 288], ¹ based upon services performed by him, for pay, for Pemiscot County Memorial Hospital. In protesting Lewis's claim, the hospital, as employer, stated: "Mr. Lewis was terminated due to working outside his job description. He circumvented the charge nurse and performed an invasive procedure even after she told him not to. He performed an invasive procedure without authorization. He was verbally condemning the family in their presence." The Labor and Industrial Relations Commission of Missouri determined that Lewis was discharged on September 28, 1992, "but not for misconduct connected with his work," and that Lewis "is not disqualified for benefits by reason of his discharge."

Pursuant to § 288.210, the hospital filed a petition for review in the Circuit Court of Dunklin County, the county of Lewis's residence. The court entered an order affirming the findings of the commission. The hospital appeals.

Appellant contends, in essence, that the record establishes, as a matter of law, that Lewis was "discharged for misconduct connected with his work," § 288.050.2, that the commission erred in ruling otherwise, and that the findings of the commission are not supported by competent and substantial evidence.

On this appeal, this court reviews the decision of the commission, and not the judgment of the circuit court. Burns v. Labor & Indus. Relations Com'n, 845 S.W.2d 553, 554 (Mo.banc 1993). The findings of the commission as to facts, if supported by competent and substantial evidence and in the absence of fraud, are conclusive. Id. at 554-555. This court reviews the evidence in a light most favorable to the findings and decision of the commission and must disregard all opposing and unfavorable evidence. Id. at 555. This court is not bound by the commission's findings on questions of law. Kansas City Club v. LIRC, 840 S.W.2d 273, 275 (Mo.App.1992); St. John's Reg. Medical Center v. LIRC, 814 S.W.2d 698, 699 (Mo.App.1991).

Section 288.050 deals with disqualification for unemployment compensation benefits where the claimant has been discharged for misconduct connected with his work. The statute reads, in pertinent part:

"2. Notwithstanding the other provisions of this law, if a deputy ² finds that a claimant has been discharged for misconduct connected with his work, such claimant, depending upon the seriousness of the misconduct as determined by the deputy according to the circumstances in each case, shall be disqualified for waiting week credit or benefits for not less than four nor more than sixteen weeks for which he claims benefits and is otherwise eligible. In addition to the disqualification for benefits under this provision the division may in the more aggravated cases of misconduct cancel all or any part of the individual's wage credits, which were established through his employment by the employer who discharged him, according to the seriousness of the misconduct."

In the following cases the commission found that the claimant had been discharged for misconduct connected with his work, and the appellate court affirmed that finding: Stanton v. Mo. Div. of Employment Sec., 799 S.W.2d 202 (Mo.App.1990); Hurlbut v. Labor & Indus. Rel. Com'n, 761 S.W.2d 282 (Mo.App.1988); Massey v. Labor & Indus. Relations Com'n, 740 S.W.2d 680 (Mo.App.1987); Morotz v. Labor & Indus. Rel. Com'n of Mo., 669 S.W.2d 60 (Mo.App.1984); Powell v. Div. of Emp. Sec., Etc., 669 S.W.2d 47 (Mo.App.1984); Accord v. Labor and Indus. Relations Commission, 607 S.W.2d 174 (Mo.App.1980); Sain v. Labor and Ind. Relations Com'n, 564 S.W.2d 59 (Mo.App.1978); Ritch v. Industrial Commission, 271 S.W.2d 791 (Mo.App.1954). In the following case the commission found that the claimant had been discharged for misconduct connected with his work, and the appellate court reversed that finding: Laswell v. Industrial Com'n of Missouri, Etc., 534 S.W.2d 613 (Mo.App.1976).

In the following cases the commission found no misconduct, and the appellate court affirmed that finding: Garden View v. Labor & Indus. Rel. Com'n, 848 S.W.2d 603 (Mo.App.1993); Continental Research v. Labor & Indus. Rel., 708 S.W.2d 749 (Mo.App.1986); Von Hoffman Press, Inc. v. Industrial Commission, 478 S.W.2d 403 (Mo.App.1972).

In Garden View, at 605-606 the court said:

"Misconduct as used in [ § 288.050.2] has been defined as:

[A]n act of wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of the standards of behavior which the employer has a right to expect of his (or her) employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer's interest or of the employee's obligations to the employer."

In Stanton, quoting § 288.020, RSMo 1949, the court said, at 203: "The purpose of the unemployment compensation laws is 'to provide for the compulsory setting aside of an unemployment reserve to be used for the benefit of persons unemployed through no volition of their own.' "

Provisions for benefits for persons unemployed through no fault of their own require liberal construction, and disqualifying provisions of the law are to be strictly construed against the disallowance of benefits to unemployed but available workers. Mo. Div. of Emp. Sec. v. Labor & Indus. Rel., 651 S.W.2d 145, 148 (Mo. banc 1983). "In short, judicial interpretations of the unemployment statutes have required that an employee not have caused his dismissal by his wrongful action or inaction or his choosing not to be employed." Id. at 149.

Although claimant Lewis had the burden to show that he is entitled to unemployment benefits, the hospital, as employer, had the burden of showing, by competent and substantial evidence, that Lewis was discharged for misconduct connected with work. Garden View, at 606.

The violation of a reasonable work rule can constitute misconduct. Hurlbut, at 285. Determination of whether certain conduct constitutes "misconduct connected with his work" is a "troublesome question," and there is more to the issue than a simple or deliberate violation of an employer's rule of conduct. Powell, at 50 (quoting Laswell, at 616). Poor workmanship, lack of judgment, or the inability to do the job do not disqualify a claimant from receiving benefits on the basis of misconduct. Powell, at 51; Sain, at 62. Misconduct includes "a disregard of standards of behavior which the employer has the right to expect of his employee." Acord, at 176 (quoting Laswell, at 616). There is a "vast distinction" between the violation of a rule of an employer that would justify the discharge of the employee and a violation of such rule that would warrant a determination of misconduct connected with the employee's employment so as to disqualify him for unemployment compensation benefits. Laswell, at 617. See also Von Hoffman Press, Inc., at 405.

Although the commission must give "reasons" for its decision, § 288.200.1, the reasons need not be in any particular form. Garden View, at 607. Where the commission has reached one of two possible conclusions from the evidence, the reviewing court may not reach the other conclusion, even if it might be reasonable. Stanton, at 203. Whether the commission's findings support the conclusion that the claimant is guilty of misconduct connected with his work, thereby disqualifying him from unemployment benefits, is a question of law, and this court is not bound by the commission's decision. Powell, at 50; Sain, at 61.

An incident occurring on September 24, 1992, resulted in appellant's discharging Lewis on September 28, 1992. Lewis is an emergency medical technician, "EMT." Prior to the September 24 episode, Lewis and other EMTs had signed a hospital regulation which listed certain procedures which the EMTs were authorized to do and other procedures which EMTs were not authorized to perform "UNDER ANY CIRCUMSTANCES." Included in the latter category were: "any invasive procedures, including IV's," and "administer medication in any form to a patient."

The commission's findings of fact included the matters set forth in the following five paragraphs.

On September 24, 1992, a 13-year-old child was brought to the emergency room at the hospital. The child was mentally incapable of communicating. The child was in an uncontrollable state, with impacted bowels, and resisted the attempts of the hospital staff to restrain him. The child was eventually restrained on a bed by using sheets.

Lewis responded to a call for assistance in the emergency room. Lewis saw what he considered to be a "huge" fecal impaction on the child. The impaction extended six to seven centimeters outside of his body. Lewis felt the child was abused or neglected to be in that condition. Lewis made the statement, "You know this is abuse, you wouldn't treat a dog like this." The statement was made in the presence of the child's sister. Lewis did not specifically name any individual as an alleged abusing party. Lewis asked if a camera could be brought into the emergency room so that pictures could be taken of the child. Lewis did this because the child's sister did not appear to be interested in the child's welfare and because it was state law for hospitals to report any...