12. Misconduct

Deboer Nursing Home, Inc. v. Beasley – 12.136

Deboer Nursing Home, Inc. v. Beasley
Digest No. 12.136

Section 421.29(b), Rule 207 of the Rules of Practice Before Referees and MES Board of Review

Cite as: Deboer Nursing Home, Inc v. Beasley, Unpublished Opinion of the Muskegon County Circuit Court of Michigan, Issued April 2, 2008 (Docket No. 186922WC).

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Appeal pending: Yes
Claimant: Amenia H. Beasley
Employer: Deboer Nursing Home, Inc.
Tribunal: Muskegon County Circuit Court
Date of Decision: April 2, 2008

HOLDING: An Administrative Law Judge’s (ALJ) failure to “advise… and give every assistance” to an unrepresented claimant violates Rule 207 of the Rules of Practice Before Referees and MES Board of Review and is grounds for a remand for another hearing before a different ALJ.

FACTS: Claimant was employed by Deboer Nursing Home, Inc. until she was discharged for misconduct. Her alleged misconduct included (a) failure to turn on a patient’s personal alarm, (b) failure or refusal to respond to a resident choking with urgency, (c) leaving a resident in bed all day, (d) failure to monitor an Alzheimer’s resident as required, (e) leaving a resident in loose stool, (f) leaving a resident on a commode, and (g) failure to turn on a resident’s alarm, resulting in the resident falling. The ALJ found that the unrepresented claimant did not deny these events occurred and that her explanations for the incidents were not persuasive. Thus, the ALJ disqualified the claimant from benefits pursuant to MCL 421.29(b) because of misconduct.

The State of Michigan Employment Security Board of Review (“Board”) reversed the ALJ’s decision on August 28, 2007 on two grounds. First, the Board argued the claimant was not given the procedural protections by the ALJ guaranteed by Rule 207. Second, the incidents relied upon by the employer did not constitute misconduct under MCL 421.29(b).

DECISION: The ALJ failed to provide the procedural protections guaranteed by Rule 207 to the claimant in her original hearing. The remedy for violating Rule 207 is remand for new hearing with a different ALJ.

RATIONALE: The Court denied the Board’s second ground for reversal, specifically that the incidents did not qualify as misconduct. The Board’s explanation for that view was a disagreement with the ALJ’s assessment that the claimant’s explanations for the incidents in the original hearing were unpersuasive. The court denied the Board’s explanation because of an absence of legal precedent permitting the Board of Review, who did not view the witness or hear testimony, to assess the credibility of the witness.

However, the Court agreed with the Board that the claimant was not afforded the procedural protection guaranteed by Rule 207. Rule 207 reads as follows: “The referee shall secure such competent, relevant, and material evidence that he or she deems necessary to arrive at a fair decision… [and] shall advise the [unrepresented] party of his or her rights, aid him or her in examining and cross-examining witnesses, and give every assistance to the party compatible with an impartial discharge of the Referee’s official duties.” The ALJ specifically failed to protect the unrepresented claimant by (a) not guiding the claimant through the several exhibits submitted by the employer and (b) not asking the claimant any questions in response to the allegations.

The Court sought to prevent the consequences of the Board’s reversal from falling solely upon the employer. To achieve this, the Court remanded the issue for a new hearing with a different ALJ. To prevent violations of Rule 207 in the future, the Court provided two options to employers facing ALJs who were not complying with Rule 207. First, the employer could carry out the required procedures that the ALJ is tasked with under 207, thus assisting the claimant in presenting his or her case. Alternatively, the employer could stay silent, knowing the possible remedy ordered by the Board would be a decision that the employer pay benefits to the claimant.

Digest Author: Sean Higgins, Michigan Law, Class of 2017
Digest Updated: 3/1/2016