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Smith v. Board of Review

May 18, 1995


On appeal from the Department of Labor, Board of Review.

Approved for Publication May 18, 1995.

Before Judges Petrella, Brochin and Cuff. Brochin, J.A.D., (dissenting)


This appeal implicates the six-week benefit disqualification under the unemployment compensation laws for work-related misconduct by a hospital employee. The Board of Review (Board) upheld the determination of the Appeal Tribunal which found petitioner Mario A. Smith disqualified for benefits under N.J.S.A. 43:21-5(b) for the six-week period from June 20 through July 31, 1993. We affirm.

On appeal, Smith argues that his termination from employment, which was based upon his commission of a single, isolated, negligent act does not, per se, constitute a discharge for "misconduct" as that term is defined for unemployment compensation purposes, even if the possible consequences of the act may be severe. *fn1

The essential facts are not disputed. Smith had been employed by Robert Wood Johnson University Hospital for a period of about two years in the capacity of a host, described as an employee in the nature of an orderly who "deals directly with the patient's needs and the floor needs" and who "sets a hotel environment for the patients." On June 21, 1993, Smith brought food to a pre-operative patient after he had been instructed by a nurse, on a physician's instructions, that the patient was not to be fed. The patient had just recently been admitted as a special case. Orders had just been received from a doctor for the patient. Because of this the nurse went to Smith to tell him directly that the patient was not to be fed. This was before the patient was told of the forthcoming surgery or the customary notice was put on the bed.

The hospital's assistant director of Environmental Whole Services explained that a patient who eats before surgery can regurgitate and choke on the food during anesthesia. The assistant director also said that the first thing he tells each new employee in his department is the necessity of not feeding an "NPO" *fn2 patient. He indicated that Smith was discharged due to the fact that Smith put a patient's life in danger by his actions.

Two written statements were submitted into evidence at the hearing before the appeals examiner. One statement concerning the incident was prepared by the nurse in charge and another by Smith's supervisor. The nurse in charge noted in her statement that Smith was "instructed not to give [the patient] his dinner tray" and Smith replied, "okay." When a nurse found the patient eating and asked Smith why he violated the instructions for this NPO patient, Smith replied, "fuck this place" and walked off the floor without telling anyone where he was going. Smith's supervisor was advised of the incident by the nurse in charge. When the supervisor tried to question Smith about the matter he refused to discuss it, saying he was "fed up with the way he was treated in the hospital." Security was then called and Smith was escorted from the building.

The next day the assistant director asked Smith to come to his office. Smith told him at the meeting that "he was going through a lot of personal problems" and had "brought them to work with him" the day before. Smith admitted at the hearing that he had been told by the nurse earlier in the evening on June 21 that the patient, who had just been brought into the hospital, was to be operated on and should not be fed. He also conceded that the assistant director had emphasized to him when he was hired the importance of not feeding NPO patients. Smith said that he forgot and he had been feeling "real frustrated" and "a little confused and tired" because of personal and work-related problems. In describing how his personal problems affected him and his performance of the job that day Smith testified:

I've been receiving letters from child support for a child and I haven't been able to take a blood test or anything and they just sent me letters telling me to pay child support of $93.00 a week. Which I only bring home $340.00 every two weeks. I felt frustrated with that part of my life, I was real frustrated with the job. With different situations with dealing with the nurses, my supervisors, the patients, the family members, doctors and I can go on and on and on. I was real frustrated and a little confused and tired.

He also added that when he brought the dinner tray into the patient's room, an unnamed nurse's aide asked him to leave it on an empty bed next to the patient. Smith said he did this and then left the room. However, when questioned by the hospital's representative (the assistant director) at the hearing as to why, when he had questioned Smith the next day about the incident Smith did not tell him about a nurse's aide telling him to put the tray on the bed, Smith responded that he didn't really feel it was important at that point and he did not feel that the hospital personnel or the institution were open-minded toward him and his job and he had been feeling abandoned ever since he was in the department. He said he felt that the institution only cared about making money.

The Appeal Tribunal concluded that Smith's actions in giving a tray of food to a patient who was scheduled for surgery, "which was the cause of discharge, was a willful disregard of the employer's best interest, therefore the statutory penalty must be imposed." Smith was disqualified for six weeks because he was discharged for misconduct connected with his work. The Board affirmed based on the findings and Conclusions of the Appeal Tribunal.

N.J.S.A. 43:21-5(b) sets forth a disqualification for unemployment compensation benefits as follows:

For the week in which the individual has been suspended or discharged for misconduct connected with the work, and for the five weeks immediately following that week (in addition to the ...

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