JOSEPH D HAMSON, Employee

OZARK MOTOR LINES, Employer

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued an appeal tribunal 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 makes the following:

The employee worked as a driver for over four months for the employer, an irregular route truck load carrier. The employer discharged him on October 1, 2014 (week 40).

On the morning of September 9, 2014, the employee was driving westbound in an employer-owned truck on Alabama Highway 28E. The road was dry, and there were no other vehicles close by. He looked down at his GPS for a couple of seconds and when he looked up he noticed that he was veering to the right and off the road. He overcorrected back to the left, lost control of the truck, spun 180 degrees, hit a mailbox alongside the road, hit a tree on the south side of the highway, and came to a stop facing east. The accident rendered the truck inoperable, and caused over $50,000 in damage to the truck.

Subsequently, the employer conducted an investigation into the accident and, as a result, discharged the employee.

The issue in the case is whether the employee's discharge was for misconduct or for substantial fault connected with his employment.

An employee who is discharged is eligible for unemployment insurance benefits unless the discharge was for misconduct or substantial fault by the employee connected with the employee's work. In analyzing discharges, the commission follows a three-step approach. First, the commission determines whether the employee was discharged for misconduct by engaging in any of the actions enumerated in Wis. Stat. § 108.04(5)(a)-(g). If those provisions do not apply, the commission determines whether the employee's actions constitute misconduct as originally defined by the Wisconsin Supreme Court in Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259-60, 296 N.W. 636 (1941), and now codified in Wis. Stat. § 108.04(5)(intro.). Finally, if misconduct is not found, the commission determines whether the discharge was for substantial fault by the employee connected with the employee's work, as set forth in Wis. Stat. § 108.04(5g).

Wisconsin Stat. § 108.04(5)(b), one of the enumerated actions constituting misconduct, is applicable to this case. That provision provides that "intentional or negligent conduct by an employee that causes substantial damage to his or her employer's property" is misconduct. The employee's actions resulting in his loss of control of his truck, though not intentional, were clearly negligent. His loss of control cannot be attributed to road conditions, to actions by other drivers, or to other unexpected circumstances. His lack of attention to his driving caused the accident. In addition, substantial damage was done to the truck as a result of his accident.

The commission finds, therefore, that the employee's discharge was for misconduct connected with the employment, within the meaning of Wis. Stat. § 108.04(5)(b).

The appeal tribunal decision is modified to conform to the above findings of fact and conclusions of law and, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in the week of the discharge 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 weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed March 5, 2015

hamsojourr . doc : 120 : MC 601 : MC 601.2 : MC 662 : MC 663

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

The employee, in his petition for review, has not identified any findings of fact or conclusions of law in the ALJ's decision with which he disagrees. It is, therefore, not possible for the commission to know why he disagrees with the ALJ's decision finding that his discharge was for substantial fault connected with his employment. However, the commission has performed an independent review of the record to determine whether the ALJ's decision was supported by the facts and the law. As a result, the commission has modified the ALJ's decision because the facts in this case fall squarely within the misconduct provision at Wis. Stat. § 108.04(5)(b).

With the recent enactment of Wis. Stat. § 108.04(5)(b), the analysis of accidents in the trucking industry has changed. In his decision, the ALJ noted a general industry standard for the number of accidents that would lead to a discharge for misconduct-three preventable accidents in a year's time. Although that standard may still have applicability in some circumstances, Wis. Stat. § 108.04(5)(b) must also be considered. Under that statutory analysis, the significance of the damage caused to the truck or to other property of the employer, as well as whether the accident was due to intentional or negligent conduct by the driver, must be considered.

NOTE: For purposes of computing benefit entitlement, base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contributing employer's account shall be charged to the fund's balancing account.

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