Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance
Subject: Easterling v. LIRC, No. 2016 AP 190 (Wis. Ct. App. Feb. 3, 2017)
Please note that Wis. Stat. § 809.23(3) provides that, except as allowed therein, an unpublished decision of the Court of Appeals is of no precedential value and for that reason may not be cited in any court in this state as precedent or authority. Summaries of unpublished Court of Appeals decisions are included in this collection as an informational service only, and their use contrary to 809.23(3) is not encouraged.
Digest Codes: MC 602.2
Easterling was a paratransit van driver for the employer. The employer’s rules require drivers to properly secure wheelchairs in order to avoid a wheelchair tipping during transport, and warn drivers that they will be discharged if a wheelchair tips over because they failed to fully secure it. The employer discharged Easterling after she failed to secure the wheelchair of one of her passengers, resulting in the passenger’s wheelchair tipping over after Easterling began driving away from the pick-up spot.
The commission held that Easterling’s failure to secure the wheelchair amounted to substantial fault on her part. Substantial fault connected with an employee’s work includes those acts or omissions of the employee over which the employee exercised reasonable control and that violate reasonable requirements of the employer, but does not include the following: minor infractions of rules unless an infraction is repeated after warning, inadvertent errors, or failures to perform work because of insufficient skill, ability, or equipment.1 The commission held that the employer’s requirement was reasonable. The commission also held that it was within Easterling’s control to have followed it despite the presence of certain distractions, which included three additional passengers that she was not expecting to have and the absence of an experienced volunteer who usually assisted her. The commission found that the evidence did not show that Easterling’s failure was only a minor infraction, that the error was merely an inadvertence, or that it was due to a lack of skill, ability, or equipment.
The circuit court affirmed the commission’s conclusion of substantial fault. First, the court gave due weight deference to the commission’s conclusion of law, reasoning that great weight deference was inappropriate because the commission had only recently begun applying the statute.2 The court agreed with the commission that Easterling exercised reasonable control over whether to tie down the wheelchair and also that the employer’s requirement that she do so was reasonable. The court also agreed that Easterling’s failure was not a minor infraction, and it indicated that it could not be said that her error was inadvertent. Finally, it was not due to lack of skill, ability, or equipment, given that Easterling had previously (and subsequently) complied with the rule.
Held: Reversed by the court of appeals. First, the court expressly did not address what level of deference the commission’s legal conclusion was entitled to, reasoning that it did not need to, given the basis for its reversal. That basis was the lack of credible and substantial evidence in the record establishing that Easterling’s failure was intentional (and not inadvertent). The court noted the commission’s findings that Easterling had mistakenly failed to secure the wheelchair and that she had forgotten to do so. The court ultimately reasoned that these findings, coupled with Easterling’s testimony regarding the distractions she was dealing with, strongly supported the inference that Easterling’s failure was unintentional. The commission argued that Easterling’s failure nonetheless was not inadvertent, because she had affirmatively made sure that the passenger’s wheelchair was positioned properly and that the brakes were applied. The court held that these additional facts did not amount to substantial evidence on which reasonable persons could rely in order to support a finding that Easterling’s failure was not unintentional, that is, not inadvertent.
 Wis. Stat. § 108.04(5g).
 See Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 660, 539 N.W.2d 98 (1995) (second criterion for great weight deference is that the interpretation of the agency is one of long standing).
Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.
[Court of Appeals Decision]