Johnson v. Director of the Arkansas Employment Security Department & Beverly Health

Terry Crabtree, Judge.

The appellant, Sharon Johnson, brings this appeal from a decision of the Board of Review denying her claim for unemployment benefits based on a finding that she was discharged for misconduct in connection with the work. On appeal, she contends that the Board’s decision is not supported by substantial evidence. We disagree and affirm.

Arkansas Code Annotated section ll-10-514(a)(l)(Repl. 2002) provides that an individual shall be disqualified for benefits if she is discharged for misconduct in connection with the work. Subsection (b) of the statute provides that, -if the claimant is discharged for misconduct in connection with the work on account of a willful violation of bona fide rules or customs of the employer pertaining to the safety of fellow employees, persons, or company property, the claimant shall be disqualified from the date of filing the claim until the claimant shall have ten weeks of employment in each of which the claimant shall have earned wages equal to at least his weekly benefit amount.

“Misconduct,” for purposes of unemployment compensation, involves: (l)disregard of the employer’s interest; (2) violation of the employer’s rules; (3) disregard of the standards of behavior which the employer has a right to expect; and (4) disregard of the employee’s duties and obligations to his employer. Rossini v. Director, 81 Ark. App. 286, 101 S.W.3d 266 (2003). To constitute misconduct, however, the definitions require more than mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies, ordinary negligence in isolated instances, or good-faith errors in judgment or discretion. Id. Instead, there is an element of intent associated with a determination of misconduct. Blackford v. Director, 55 Ark. App. 418, 935 S.W.2d 311 (1996). There must be an intentional and deliberate violation, a willful and wanton disregard, or carelessness or negligence of such a degree or recurrence as to manifest wrongful intent or evil design. Rossini v. Director, supra. Misconduct contemplates a willful or wanton disregard of an employer’s interest as is manifested in the deliberate violation or disregard of those standards of behavior which the employer-has a right to expect from its employees. Blackford v. Director, supra.

Whether an employee’s actions constitute misconduct in connection with the work sufficient to deny unemployment benefits is a question of fact for the Board. Thomas v. Director, 55 Ark. App. 101, 931 S.W.2d 146 (1996). Our standard of review of the Board’s findings of fact is well-settled:

We do not conduct a de novo review in appeals from the Board of Review. In appeals of unemployment compensation cases we instead review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board of Review’s findings. The findings of fact made by the Board of Review are conclusive if supported by substantial evidence; even when there is evidence upon which the Board might have reached a different decision, the scope ofjudicial review is limited to a determination of whether the Board could have reasonably reached its decision based on the evidence before it. Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion.

Snyder v. Director, 81 Ark. App. 262, 263, 101 S.W.3d 270, 271 (2003). Additionally, the credibility of witnesses and the weight to be accorded their' testimony are matters to be resolved by the Board of Review. Williams v. Director, 79 Ark. App. 407, 88 S.W.2d 427 (2002).

The appellant in this case had worked for appellee Beverly Health in Camden, Arkansas, as an LPN since 1986 until she was terminated on October 16, 2002. Glenn Clark, the executive director of the nursing-home facility, testified that appellant was fired for violating Rule 1.1 of Beverly’s progressive disciplinary system for resident “neglect” because of her failure to intervene on behalf of a resident. Mr. Clark explained that appellant had worked the 11:00 p.m. to 7:00 a.m. shift on October 13-14 when at around 5:00 a.m. she made an entry into a resident’s medical chart that she was unable to obtain bowel sounds. Clark said that, when bowel sounds are not detected, standard protocol called for an LPN to locate another nurse to listen for bowel sounds, and that if none were heard, a physician was to be alerted immediately and the resident’s family and the director of nursing were to be notified. Appellant, however, took no further steps after making the entry in the resident’s chart. Another nurse was not called in, and a doctor was not notified. Clark said that, when he asked appellant why she had not intervened on behalf of the resident, appellant responded that she “just didn’t.” Clark testified that listening for bowel sounds was a basic part of the physical assessment LPN’s were required to perform and that employees were notified through in-service training of the proper procedure to follow when bowel sounds are not heard. Clark further testified that appellant had a history of not attending in-service training sessions. He said that appellant’s failure to follow protocol in this instance was a category-one violation and that employees are advised that they could be discharged for a single category-one violation. Clark also testified that appellant’s infraction was required by law to be reported to the Office of Long-Term Care and that the Office of Long-Term Care had reported the incident to the State Board of Nursing. Additionally, Clark testified that the absence of bowel sounds was an indication that something was wrong internally, such as renal failure, and that the resident in question was admitted into the hospital later that day with renal failure.

Appellant testified that the resident in question had been complaining for a week. She said that she heard the patient moaning that morning and that she took her vital signs which were within normal limits. She said that the resident told her that she was fine but that she also said that “I just don’t feel good.” Appellant denied that her training and experience required her to do anything after being unable to detect bowel sounds. She said that, based on experience, she knew when to call a doctor and that she did not feel that the resident in question was in such distress as to be in need of a doctor. Appellant testified that her immediate supervisor had only given her verbal counseling over this incident but that her supervisor had also told her that she should have called a doctor. She admitted that she had not attended the last in-service training and that she had been written up in the past for not attending training sessions.

On this evidence, the Board determined that appellant was discharged for misconduct, finding that appellant had willfully violated the employer’s rules pertaining to the safety of persons. Appellant contends on appeal that this finding is not supported by substantial evidence.

In St. Vincent Infirmary v. Daniels, 271 Ark. 654, 609 S.W.2d 675 (Ark. App. 1980), two employees who worked at the hospital’s day-care center were discharged for leaving the workplace one afternoon to attend to personal business. We concluded that this single incident of leaving work amounted to misconduct because the employees had left without permission and without clocking out; because they were absent during a busy time of day at a time that did not correspond to their lunch hour; and, most significantly, because their absence placed the day care in violation of regulations concerning the ratio of adult employees to the number of children present. We held that the employees’ acts were intentional and displayed a substantial disregard for their employer’s interests and their own duties and obligations.

In Beck v. Director, 65 Ark. App. 8, 987 S.W.2d 733 (1999), a nurse violated the hospital’s policy regarding the dispensation of narcotics. The hospital’s procedure for dispensing narcotics required the nurse to sign out the medication in the narcotics book, noting both the date and the time, and then to give the medicine to the patient. The nurse admittedly violated this rule one day by not documenting the medication as it was given. Instead, she waited until the end of her shift and attempted to complete the necessary documentation from memory. Several days before, the nurse had also failed to consult a patient’s chart prior to dispensing a dose of Darvocet, which resulted in the patient’s receiving the medication at the wrong time. On this record, we rejected the nurse’s contention that her conduct was nothing more than a good-faith error in judgment and held that her actions were not only in violation of the employer’s rules, but that her conduct constituted a disregard of the employer’s interests and the standard of behavior the employer had a right to expect, and a disregard of her duties and the obligations that she owed to her employer.

In this case, the sole issue before us is whether the Board could reasonably conclude that appellant’s actions rose to the level of misconduct. When the evidence is viewed in the appropriate light, we are unable to say that there is no substantial evidence to support the Board’s finding. The testimony reflects that listening for bowel sounds was a basic component of the physical assessment nurses were required to perform. The nursing home had established a procedure that was to be followed in the event a nurse was unable to detect bowel sounds in order to ensure the protection of its residents’ health and well-being. This procedure reflects that the absence of bowel sounds was deemed serious enough to warrant immediate attention and the notification of a physician. The procedure does not allow for the exercise of independent judgment or discretion on the part of nurses to depart from its requirements. When asked soon after the incident why she did not follow protocol, appellant offered no explanation other than to say that she “just didn’t.” We think the Board could reasonably conclude that appellant’s failure to follow protocol was a dereliction of duty that was wanton and willful and that her inaction amounted to a violation of the employer’s rules, a disregard of the employer’s interest, a disregard of the standards of behavior the employer had a right to expect, as well as a disregard of the appellant’s duties and obligations to her employer. Although appellant suggests that Mr. Clark’s testimony was entitled to little weight and that we should accept her testimony that she did not neglect the resident, it is not our function to determine the weight and credibility of the testimony, as those matters are for the Board to assess. See Williams v. Director, supra. The Board chose to lend more credence to Clark’s testimony than that of the appellant, which was its prerogative.

Affirmed.

Stroud, C.J., and Pittman, Robbins, and Neal, JJ., agree. Griffen, Gladwin, Baker, and Roaf, JJ., dissent.