In re Lakeview Neurorehabilitation Center, Inc.

834 A.2d 374, 150 N.H. 205, 2003 N.H. LEXIS 164
CourtSupreme Court of New Hampshire
DecidedOctober 29, 2003
DocketNo. 2003-016
StatusPublished
Cited by5 cases

This text of 834 A.2d 374 (In re Lakeview Neurorehabilitation Center, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Lakeview Neurorehabilitation Center, Inc., 834 A.2d 374, 150 N.H. 205, 2003 N.H. LEXIS 164 (N.H. 2003).

Opinion

Broderick, J.

The petitioner, Lakeview NeuroRehabilitation Center, Inc. (Lakeview), appeals a final decision of the appeal tribunal (tribunal), as affirmed by the appellate board, of the New Hampshire Department of Employment Security awarding unemployment benefits to the claimant, Joseph K. McCusker. We affirm.

The record supports the following facts. Lakeview is a residential treatment and rehabilitation facility for brain injured, neurologically impaired and emotionally disturbed children, adolescents and adults. McCusker began working there in 1997 as a temporary grounds crew worker who shortly thereafter became a permanent member of the staff. He has suffered from Type I diabetes since 1978 and is medically required [207]*207to monitor Ms blood sugar several times each day, eat at regular intervals, and adjust Ms medication as needed. If Ms blood sugar drops substantially he is subject to a hypoglycemic reaction, which triggers sweating, blurred vision, confusion and/or loss of consciousness. Lakeview was aware of McCusker’s disease when it hired him.

McCusker was discharged from his job on April 24, 2002, because of alleged inappropriate and unsafe behavior on four separate occasions between June 2000 and the date of his discharge. The first incident occurred in June 2000, when McCusker suffered a hypoglycemic reaction while driving a maintenance truck on the Lakeview grounds. As a result, he lost control of the vehicle and struck the maintenance barn. McCusker was then transferred to a new position as a residential trainer. In that capacity he was required to provide direct personal care and assistance to patients.

In June 2001, a Lakeview staff member allowed a patient to use the telephone in an office where McCusker had been instructed by Lakeview to keep his insulin kit. Left unsupervised, the patient discovered the kit and took a syringe. McCusker was reprimanded. In December, McCusker lost consciousness at work during a hypoglycemic reaction. A Lakeview nurse revived him by administering glucose and he was able to finish his shift.

Subsequently, Lakeview placed McCusker on thirty-days probation to ensure that he was able to monitor his blood sugar effectively. He was directed to check his blood sugar four times a day and eat meals and snacks in accordance with his dietary requirements. McCusker completed his probation without incident.

On March 11, 2002, McCusker was given a very high rating in his job performance appraisal. In particular, his review noted that “[a]long with the unexpected schedule changes, Joe holds safety above all else for the staff and [patients] he is responsible for.” The “Areas For Improvement & Plan” section of the review stated, “None noted at this time.”

The following month, McCusker experienced another hypoglycemic reaction despite checking his blood sugar at the appropriate times. He became loud, kidded adolescent patients in a forceful way, grabbed a patient by the shoulders and shook him lightly and tapped another patient on the head with a newspaper. He was argumentative with staff members and waved an empty syringe in the air.

As a result of these episodes, Lakeview terminated McCusker’s employment. Thereafter, he filed for unemployment benefits with the New Hampshire Department of Employment Security, alleging that he had been discharged due to his diabetic condition. Lakeview contended that he [208]*208was fired for “inappropriate/unsafe behavior in the presence of [patients].” McCusker’s request for benefits was denied upon a finding that he was discharged due to “misconduct connected with his work,” see RSA 282-A:32, 1(b) (1999). McCusker appealed the denial to the tribunal, which, following an evidentiary hearing, reversed the decision denying benefits. The tribunal found that while McCusker was discharged for his inability to do his job, his inability did not arise from misconduct connected with his work. Specifically, the tribunal found that McCusker “worked to the best of his ability,” “did his best to control his diabetic condition” and had not engaged in misconduct. After its request for reopening was denied, Lakeview appealed to the appellate board, which affirmed the tribunal’s decision. This appeal followed. See RSA282-A:67, II (1999).

Lakeview asks this court to overturn the award of unemployment benefits to the claimant on the grounds that the tribunal: (1) misapplied or ignored the proper legal standard for assessing employee misconduct under RSA 282-A:32, 1(b); (2) failed to base its decision upon competent medical evidence; and (3) failed to hold employees in the health care profession to a more demanding standard in assessing misconduct. Lastly, Lakeview contends that the tribunal’s finding, that the claimant’s hypoglycemic reactions were the uncontrollable result of his medical condition, was clearly erroneous.

In reviewing a decision of the tribunal we are confined to the record and will not substitute our judgment for its judgment as to the weight of the evidence on questions of fact. RSA 282-A:67, IV, V (1999); see Appeal of N.H. Sweepstakes Commission, 130 N.H. 659, 662 (1988). We will uphold the decision of the tribunal unless its findings or conclusions are unauthorized, affected by an error of law, or clearly erroneous in view of all the evidence presented. See RSA 282-A:67, V; Appeal of John Hancock Distributors, 146 N.H. 124,127 (2001).

New Hampshire’s unemployment compensation system is predicated upon benefits being paid to those who become unemployed through no fault of their own. See Appeal of Miller, 122 N.H. 993, 994 (1982). No benefits are to be paid, however, to an employee who is terminated as a result of “misconduct connected with his work.” RSA 282-A:32,1(b).

Both parties agree upon the applicable law for assessing employee misconduct under RSA 282-A:32, 1(b). It is well established that New Hampshire uses a two-pronged definition of employee “misconduct.” Appeal of N.H. Sweepstakes Commission, 130 N.H. at 664. Under the first prong:

[209]*209Isolated or inadvertent instances of unsatisfactory conduct are not sufficient for a finding of “misconduct,” but recurring careless or negligent acts are enough to constitute “misconduct.” As well, the negligence need not be of such a degree or recurrence as to manifest wrongful intent or evil design or to show intentional and substantial disregard.

Id. (citation and quotations omitted). Under the second prong, if there are no recurring acts of carelessness or negligence, “a single instance of misconduct may be sufficient for a finding of misconduct if it is a deliberate violation of a company rule reasonably designed to protect the legitimate business interests of the employer.” Id. (quotation, emphasis and brackets omitted); see Appeal of Beebe Rubber Co., 124 N.H. 533, 536 (1984).

Lakeview first argues that McCusker’s repeated failure to properly monitor his blood sugar, despite verbal and written warnings, constituted “recurring careless or negligent acts” sufficient to establish misconduct. In the alternative, it contends that McCusker’s failure to meticulously follow his treatment regimen, after having been warned by Lakeview that such strict adherence was essential, constituted a “deliberate violation” of its rules and procedures.

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Bluebook (online)
834 A.2d 374, 150 N.H. 205, 2003 N.H. LEXIS 164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-lakeview-neurorehabilitation-center-inc-nh-2003.