STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

PAUL C PACOCHA, Employee

ASPLUNDH TREE EXPERT CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05400148AP


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 52 of 2004, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed May 11, 2005
pacocpa . usd : 115 : 1   MC 662

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The level of negligence necessary to constitute misconduct, which has been denominated gross negligence, is that which manifests wrongful intent or evil design or shows an intentional and substantial disregard of the employee's duties and obligations to the employer. Cairns v. TTC Illinois, Inc., UI Hearing No. 00200102EC (LIRC April 7, 2000); McKibbin v. LIRC and Marten Transport, Ltd., et al., No. 94-CV-0213 (Wis. Cir. Ct. Dane County Dec. 23, 1994), aff'd. Case No. 05-0234 (Wis. Ct. App. Feb. 29, 1996, unpublished).

The administrative law judge concluded that the employee's actions met this gross negligence standard, and the commission agrees.

The employee ignored prominent signs on a clear and sunny day warning him that the bridge overpass he was approaching was two feet lower than the vehicle he was driving. The employer had conducted a safety meeting the day before reminding its workers, including the employee, to drive defensively and to stay focused on their jobs in order to prevent injury or property damage.

Unlike the fact situation considered by the commission in Stanford v. DeBoer, Inc., UI Hearing No. 00005204WR (LIRC Dec. 20, 2000), where it concluded that hitting an overpass did not constitute gross negligence because "there was no evidence that there was any advance warning of a low underpass," there were two prominently displayed advance warnings here, and no other mitigating circumstances.

Given the employee's clear failure to heed prominent safety warnings, and the serious actual and potential consequences of such a failure both to the employer and to the driving public, the record supports a conclusion that the employee engaged in gross negligence.

In his petition, the employee states that the sign 700 feet before the bridge did not state "low clearance ahead," but instead "narrow bridge." However, even if the commission could consider this extra-record statement, it should be noted that the employee testified at hearing that, "I did not notice the low clearance signs 700 feet before the bridge until after the fact, " and that, "[t]he markings for the height of the bridge were 700 feet up the road on the side of the road...[t]he sign just said the height of the bridge, it did not say 'low bridge'." The employee's statement in his petition is inconsistent with the testimony he gave at the hearing.

cc: Asplundh Tree (Menominee, Wisconsin)



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