MISCONDUCT, Patient abuse, Circumstantial evidence
CITE AS : Michigan Osteopathic Hospital v Kelly, Wayne Circuit Court, No. 92-212327-AE (September 24, 1992).
Appeal pending: No
Claimant: Gregory Kelly
Employer: Michigan Osteopathic Hospital
Docket No. B89-18261-115723W
CIRCUIT COURT HOLDING: Disqualifying misconduct can be based on circumstantial evidence despite the claimant's denials.
FACTS: Claimant worked for the employer as a child care worker at a facility for emotionally disturbed children. He was fired and the employer offered circumstantial evidence of three incidents of patient abuse. The claimant was the only witness before the Referee with first hand knowledge of the incidents and he denied they occurred as alleged. The Referee found the claimant disqualified for misconduct. The Board reversed because the employer did not provide witnesses with personal knowledge of the incidents. The court found the Board erred as a matter of law when it ruled the employer could not meet its burden of proof without providing direct evidence of the incidents. The Board disregarded the circumstantial evidence provided by the employer.
DECISION: Claimant is disqualified for misconduct.
RATIONALE: Patient abuse if proven is disqualifying misconduct. The employer has the burden of proving the claimant committed the patient abuse. However, the Board erred when it applied the wrong legal standard. The Board reversed the Referee because the employer did not provide witnesses with personal knowledge of the alleged patient abuse to rebut the claimant's denials of any abuse. The Board ignored the circumstantial evidence provided by the employer in support of its claim the claimant engaged in patient abuse. The court cited Zolton v Rotter, 321 Mich 1, 8 (1948) as follows; "Circumstantial evidence in support of or against a proposition is equally competent with direct."
11, 12, d3: N/A