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Menendez v. Division of Employment Security

Court of Appeals of Missouri, Eastern District, Third Division

March 17, 2015

CYNTHIA MENENDEZ, Appellant,
v.
DIVISION OF EMPLOYMENT SECURITY, Respondent

Appeal from the Labor and Industrial Relations Commission.

FOR APPELLANT: John J. Ammann, St. Louis University Legal Clinic, St. Louis, MO.

FOR RESPONDENT: Christine K. Lesicko, Jefferson City, MO.

ROBERT G. DOWD, JR., Judge. Kurt S. Odenwald, P.J. and Gary M. Gaertner, Jr., J., concur.

OPINION

ROBERT G. DOWD, JR., J.

Page 838

Cynthia Menendez (" Claimant" ) appeals from the decision of the Labor and Industrial Relations Commission (" the Commission" ) denying her petition for unemployment benefits. Claimant argues the Commission erred in finding Claimant engaged in misconduct connected with her work because Claimant's early removal of a patient's sutures was an isolated act of negligence. We reverse.

Claimant was employed by Tesson Heights Orthopaedics and Arthroscopic Associates (" Employer" ) as a medical assistant for ten years until she was discharged April 4, 2014. Claimant was terminated because she prematurely removed a patient's sutures. Claimant did not have the doctor's permission to remove the sutures. The patient had to undergo a second surgery to replace the sutures because the wound opened up again. Employer terminated Claimant because she " failed to use reasonable judgment in removing [the] sutures," but Employer told Claimant she would " be eligible for unemployment benefits."

Subsequently, a deputy with the Division of Employment Security determined Claimant was discharged for misconduct connected with her work. Thus, Claimant was denied unemployment benefits.

Claimant appealed to the appeals tribunal, which held a telephone hearing at which Claimant was the only participant. Claimant testified she was angry with a co-worker and did not read the date on the patient's chart correctly to notice his sutures were not to be removed for another week. The appeals tribunal found Claimant could have waited for the doctor to see the patient before removing the sutures, but she did not. Further, it found Claimant did not exercise reasonable care because she did not properly read the chart. Thus, the appeals tribunal affirmed the deputy's determination that Claimant was not entitled to unemployment benefits because she was discharged for misconduct connected with her work.

Claimant then filed an application for review with the Commission. The Commission affirmed and adopted the decision

Page 839

of the appeals tribunal. This appeal follows.

In her sole point, Claimant argues the Commission erred in finding Claimant engaged in misconduct connected with her work because Claimant's early removal of a patient's ...


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