Raml v. Jenkins Methodist Home, 14960

• Decision Date: 19 November 1985
• Docket Number: No. 14960,14960
• Citation: 381 N.W.2d 241
• Parties: Marian F. RAML, Claimant and Appellee, v. JENKINS METHODIST HOME, Employer and Appellant. . Considered on briefs
• Court: South Dakota Supreme Court

Page 241

381 N.W.2d 241

Marian F. RAML, Claimant and Appellee, v. JENKINS METHODIST HOME, Employer and Appellant.

No. 14960.

Supreme Court of South Dakota.

Considered on briefs Nov. 19, 1985.

Decided Jan. 22, 1986.

Nancy J. Turbak, Watertown, for claimant and appellee.

Ronald L. Schultz of Green, Schultz & Roby, Watertown, for employer and appellant.

FOSHEIM, Chief Justice.

Marian Raml (Raml) sought unemployment insurance benefits after she was released as a nursing home LPN. The State Unemployment Insurance Division found that Raml was "discharged because she did not follow proper procedure in caring for residents. Misconduct has not been established." Therefore, Raml was not disqualified from receiving benefits and since Jenkins Methodist Home (nursing home) is a reimbursing employer, benefits paid to Raml would be chargeable to them. The nursing home appealed.

A hearing was held in which Raml was represented by counsel. The Appeals Referee listened to several witnesses, arguments of counsel, and entered detailed findings which methodically addressed complaints raised against Raml and affirmed the Benefit Section's decision. The Secretary of the Department of Labor adopted the Findings of Fact and Conclusions of Law made by the Appeals Referee and affirmed his decision. The Circuit Court affirmed the Secretary's decision. We also affirm.

The complaints lodged against Raml, followed by the Appeals Referee's findings, are summarized below:

a. failed to crush patient's pills--only one occurrence year and one-half ago;

b. put patient to bed earlier than son preferred--done for medical reasons and son agreed when reason explained;

c. turned off room lights of patient who was very afraid of dark--isolated instance of inadvertence and not misconduct;

d. failed to give oxygen when patient requested pursuant to standing doctor's orders--Raml's procedure with this patient's use of "inhaler" and frequent oxygen requests was consistent with other nurses.

e. improperly timed dispensation of sleeping pills with particular patient--valid reason established;

f. refused to administer a patient's pain pill--unsubstantiated;

g. made long, frequent calls to off duty nurses--patient oriented calls; though long, they did not constitute willful misconduct;

h. put blind patient to bed without meal because patient would not feed herself--patient was encouraged to care for self; complainant did not fill out report at time of incident "because it was so trivial"--single instance of good faith error of judgment;

i. failed to administer routine eye and ear drops--never done intentionally, occasionally omitted due to time constraints;

j. spent excessive time with one patient and worked crossword puzzles at desk--at most it is mere unsatisfactory conduct not rights to level of misconduct;

k. refused to perform personal hygiene procedure for comfort of certain patient--not doctor ordered, and not always necessary if time not available;

l. would not push wheelchair bound arthritic patient--patient to be encouraged to wheel self as supposed to go home; other nurses also denied assistance; and,

m. ate pizza in timeclock room--isolated incident, oral reprimand with no immediate written report made.

The Referee made special note that the reports of many of the incidents were not timely made, i.e., not rendered until requested. Consequently, he found it difficult to characterize them as acts of misconduct leading to discharge.

The only issue on appeal is whether the trial court erred in finding that Raml's actions prior to discharge did not constitute misconduct and therefore did not disqualify her from receiving unemployment compensation benefits. On review, we are not bound by a presumption that the circuit court was correct since we essentially review the agency decision as did the circuit court. State Division of Human Rights v. Miller, 349 N.W.2d 42, 46 n. 2 (S.D.1984); In re State Water Management Board Approving Water Permit No. 1791-2, 351 N.W.2d 119, 122 (S.D.1984). Rather, we will uphold the ruling unless, in light of the entire record, the decision is clearly erroneous or we are left with a firm and definite conviction that a mistake has been made. SDCL 1-26-37; see also South Dakota Department of Revenue, 331 N.W.2d 828, 830 (S.D.1983).

The Referee correctly applied SDCL 61-6-14 to the facts, as interpreted in Matter of Yaroch, 333 N.W.2d 448 (S.D.1983), and stated:

[M]isconduct [within the meaning of the unemployment compensation statutes] is limited to conduct evincing such willful or wanton disregard of an employer's interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employees, 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 interest or of the employee's duties and obligations to his employer. On the other hand, mere inefficiency, unsatisfactory conduct, failure in good performance as a result of inability or incapacity, inadvertancies 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.

Id. at 449 (quoting Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636, 640 (1941)). Also, the Referee correctly noted this court's admonition that our unemployment insurance laws are to be liberally construed. Redbird v. Meierhenry, 314 N.W.2d 95 (S.D.1982).

The detailed findings initially made by the Appeals Referee and subsequently adopted by the Department Secretary and the circuit court are supported by the evidence. The nursing home has not revealed any errors of fact or law which would justify overturning the lower court's decision. Johnson v. Skelly Oil Co., 359 N.W.2d 130, 132 (S.D.1984). Accordingly, we affirm.

MORGAN, and WUEST, JJ., and HERTZ, Acting J., concur.

HENDERSON, J., dissents.

HENDERSON, Justice (dissenting).

Today, across America, the disabled, elderly, and feeble are sheltered in what we now call "nursing homes." It is a social phenomena of familial change which has mushroomed into acceptance to such extent that it is a mores. It is called good by some and bad by others. For some souls, it can become a lonesome, living hell. This remarkable growth, I have witnessed in my lifetime. Except for rare instances, gone are the days when Mama and Daddy care for Grandpa and Grandma in their home.

Though nursing homes might be great edifices of stone, cement, mortar, and glass--yet, it is what is inside which measures if the care is a blessing or a curse. Often, a nursing home is a last resort and it indeed becomes a haven for those who cannot any longer fend for themselves. An inescapable obligation of a nursing home is to treat a resident or patient with compassion, tenderness, and lend emotional support. Woven into the medical care, there must be a spiritual input of love for a fellow human being. Without a caring environment inside, the outside is but a building to house a business. And nursing homes, as the population of the elderly has broadened and expanded, have become one of the big businesses in America. There must be deeply imbedded in these nursing homes, not just medicine and food, but blessings which are not measured in dollars and cents. Often, as one reads about nursing homes, we are left with the phrase that these people, who are in the twilight of their lives, must have "quality nursing care." The Employee Handbook, page 1, states:

Let us remember why we are here. We are here to provide quality nursing care, emotional, psychological, and spiritual support to our residents. Our facility is their home. For many of the residents, the staff is family. In no other working situation is it more important to render human service in a compassionate, loving, and vital way.

To this end, the Jenkins Methodist Home of Codington County prepared the "Jenkins Methodist Home Employee Handbook," duly entered in evidence as Exhibit 1, and the "Jenkins Methodist Home Patients' Bill of Rights--Final Form," received in evidence as Exhibit 2. Claimant Raml received both of these exhibits and was chargeable with knowledge of their contents. Particularly of note in the Employee Handbook is a paragraph found on page 15, which expressly relates to misconduct. It states:

This facility realizes that the issues raised here [in the handbook] are made necessary because of misconduct and offenses of only a small number of employees. The majority of our employees perform loyally and efficiently. It is our desire to assist employees in every way possible so that working here is a meaningful, satisfying life experience. However, willful and inexcusable violations of these rules must be dealt with firmly under a uniform policy which applies equally to all departments, to all shifts and to all individuals.

These exhibits reflect the deep concern of the Jenkins Methodist Home to provide more than just food and medicine in a substantial edifice; rather, the Jenkins Methodist Home recognized, by preparing the Patients' Bill of Rights, that residents were encouraged to voice grievances and recommend changes in policies and services and to do so without fear of reprisal and without restraint, interference, or coercion. Each resident, by the said Patients' Bill of Rights, was to be free from mental and physical abuse and was to be treated with "consideration, respect, and full recognition of his dignity and individuality, including privacy in treatment and in care for his personal needs." By the Employee Handbook, of which claimant Raml was aware, there were several violations that were considered to be either violations "of concern" or "serious violations." These included:

(1) Inconsiderate treatment of others;

(2) Loitering or loafing;

(3) Abusive treatment of others;

(4)...