BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

MAREK DEREZINSKI, Employee

WISCONSIN EXPRESS LINES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 89-403256 GB

Pursuant to the timely petition for review filed in the above-captioned matter, the Commission has considered the petition and all relief requested. The Commission has reviewed the applicable records and evidence and finds that the Appeal Tribunal's findings of fact and conclusions of law are supported thereby. The Commission therefore adopts the findings and conclusions of the Appeal Tribunal as its own.

DECISION

The decision of the Appeal Tribunal is affirmed. Accordingly, the employe is eligible for benefits, if he is otherwise qualified.

Dated and mailed March 23, 1990
110 : CD8511  MC 662

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

In its petition for Commission review, the employer argues that the accidents in which the employe was involved were "very preventable," could have been prevented by following the most fundamental safety procedures, and evidenced "complete disregard of fundamental safety procedures" and "an extremely high degree of carelessness."   The Commission concludes that these arguments overstate the matter.   While carelessness and negligence were clearly involved in both the incident in which the employe's truck struck a utility wire and the incident in which he broke the mirror on another truck, and while more attention on the part of the employe could well have avoided both accidents, this does not establish that the negligence rose to that degree which warrants a finding of misconduct.   In Boynton Cab Co. v. Neubeck, et al., 237 Wis. 249, 296 N.W. 636 (1941), the Wisconsin Supreme Court held that ordinary negligence in isolated instances and good faith errors in judgment or discretion are not to be deemed misconduct within the meaning of the Statute, and that carelessness and negligence would not be considered misconduct unless of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or the employe's duties and obligations to his employer, as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employe. 296 N.W. at 640.   In retrospect, all errors and accidents attributable to negligence can be recognized as "preventable" and can be attributed to disregard of safety or other concerns on the part of the negligent actor.   If this, per se, rendered such acts of negligence "misconduct," the indication of the Supreme Court in Boynton Cab that ordinary negligence in isolated instances does not constitute misconduct, would be contradicted. Where negligence is concerned, the question of misconduct is a question of degree. Here, the Commission finds that the two accidents established by the record in which the employe was at fault as a result of his negligence did not rise to the level of misconduct.

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2001/02/15