may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Kula K. Roberts,
Heritage of Edina, Inc.
Commissioner of Economic Security,
Filed December 15, 1998
Department of Economic Security
File No. 6598UC97
Linda S. Jensen, 1800 Fifth Street Towers, 150 South Fifth Street, Minneapolis, MN 55402 (for respondent Heritage of Edina, Inc.)
Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)
Considered and decided by Willis, Presiding Judge, Kalitowski, Judge, and Amundson, Judge.
Appellant challenges the commissioner's representative's decision disqualifying her from receiving reemployment benefits for committing misconduct under Minn. Stat. § 268.09, subd. 1(d) (1996). We affirm.
Roberts was a full-time home-health aide for Heritage of Edina, Inc., a resident health care facility. On June 3, 1997, Roberts was accused of abusing a resident who suffered from Alzheimer's disease. The incident was reported by a co-worker who claimed she heard Roberts yell at the resident, telling her to "take her g-dd-mn clothes off." Apparently, the resident replied, "I hate you," to which Roberts responded, "You know what? I hate you too." The co-worker further claims that she heard a loud thud and noticed red marks on the resident's hand and wrists a short time later.
Later that day, the co-worker noticed bruises in the same area on the resident's hand and wrists. After Roberts completed her shift and left for the day, the incident was reported. Photographs were taken of the resident's bruises and a decision was made to terminate Roberts.
On June 4, Roberts was informed that she was terminated for abusing a resident, for failing to give residents proper medication, and for failing to follow employer policies and procedures with regard to resident care.
The commissioner's representative's findings, viewed in the light most favorable to the decision, will not be disturbed if there is evidence reasonably tending to sustain them. White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). The decision as to whether an employee committed disqualifying misconduct is a mixed question of law and fact. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). In the instant case, the dispute is primarily over factual issues; the law is relatively clear.
An employee is disqualified if she commits misconduct or gross misconduct. Gross misconduct is defined in pertinent part as follows:
[M]isconduct involving assault and battery * * * gross misconduct also includes misconduct involving an act of patient or resident abuse, financial exploitation, or recurring or serious neglect * * *
Minn. Stat. § 268.09, subd. 1(d) (1996).
Additionally, the allegations against Roberts fall into the categories of abuse and neglect. Abuse is defined as:
[A]n act against a vulnerable adult that constitutes a violation of, an attempt to violate, or aiding and abetting violation of:Minn. Stat. § 626.5572, subd. 2 (1996).
assault in the first through fifth degrees * * *
Conduct which is not an accident or therapeutic conduct as defined in this section , which produces or could reasonably be expected to produce physical pain or injury or emotional distress including but not limited to, the following:
hitting, slapping, kicking, pinching, biting, or corporal punishment of a vulnerable adult; * * *
Neglect is defined as:
[T]he failure or omission by a caregiver to supply a vulnerable adult with care or services, including but not limited to, food, clothing, shelter, health care, or supervision which is:
reasonable and necessary to obtain or maintain the vulnerable adult's physical or mental health or safety, considering the physical and mental capacity or dysfunction of the vulnerable adult * * *.
Id., subd. 17 (1996).
It is uncontested by the parties that if the allegations made against Roberts are true, she committed misconduct and gross misconduct under the statute. The commissioner's representative determined that Roberts was discharged for misconduct and gross misconduct. The commissioner may disregard the findings of fact of the referee and may make any decision, as the facts found by the commissioner require. Minn. Stat. § 268.105, subd. 3(b) (1997); Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995) (holding that the courts will accord deference to the commissioner rather than to the referee and that the commissioner may make independent factual determinations and decisions). The commissioner's representative may substitute his judgment of the factual record. Tuff, 526 N.W.2d at 51. His decision is binding if there is any evidence tending to sustain his position. Id. Because the factual record can be read in support of either the relator or the respondent, the record supports the commissioner's representative's decision.