Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Kathern Baldwin, No. B-202398.
James K. McNamara, Quinn, Gent, Buseck and Leemhuis, Inc., for petitioner.
Charles G. Hasson, Acting Deputy Chief Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.
Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Rogers.
[ 73 Pa. Commw. Page 397]
The Erie County Geriatric Center, a 500 bed facility providing long term care to aged and frequently indigent invalids, here seeks review of an Order of the Unemployment Compensation Board of Review by which one of the Center's nurse's aides was determined to be eligible for six weeks of unemployment compensation. The Center contends that the Board erred in failing to find that the claimant's disciplinary suspension pending discharge was caused by her willful misconduct.
The undisputed facts are that the claimant had been working as a nurse's aide for the Center for about nine years when, during the early evening of April 8, 1981, she reattached certain restraints then ordered by a physician to be in place about the wrists of a forty-seven-year-old severely ill patient. In accomplishing the restraint of the patient's hands, the claimant used a degree of force which a supervisor then present later described in a disciplinary report as a slap to the left wrist and which the claimant testified ought more properly to be called a tap to the wrist.
[ 73 Pa. Commw. Page 398]
At a referee's hearing the claimant testified that the patient and his behavioral patterns were well known to her; that the patient's intellectual capabilities were extremely limited and best described as infantile; that he frequently managed to release himself from the required restraints; that having done so it was his practice to engage in self-destructive behavior; that such behavior frequently involved the manipulation and ingestion of his feces; that the patient had, immediately prior to the incident at issue, released his restraints and had begun to engage in what the claimant believed to be the self-destructive behavior just described; that the force used by the claimant to prevent this behavior was no more than that necessitated by the patient's considerable strength and single-minded resolve; that any abrupt motion of the claimant later described by others as a slap was simply a reflexive motion triggered by the exigencies of the circumstances; and that the claimant believed her conduct to have been justified under the circumstances and not to be categorizable as abusive.
The employer's contrary proofs were less than compelling. At the first hearing conducted on July 1, 1981, the Center's Director of Human Resources, Dennis Johnson, testified that he had no direct knowledge of the disputed incident and that he was unfamiliar with the patient involved but that he had been presented with a disciplinary report concerning the incident made by the claimant's supervisor, Patricia Krupa, which report was admitted into evidence as an exhibit over the objection of the claimant's representative. The whole of Mrs. Krupa's report is as follows:
Mrs. Baldwin [the claimant] was observed slapping Douglas Coblentz on the hand. He had gotten out of his wrist restraint. She said sharply "Don't do that," and slapped his hand. I was across the room and could hear the slap as well.
[ 73 Pa. Commw. Page 399]
N.A. [nurse's aide] Jan Howard was in the room with ...