Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: R & L Transfer, Inc. v. LIRC and Mr. Boleslaw Makowski, Case 99-CV-924 (Wis. Cir. Ct., Rock Co., February 28, 2000)

Digest Codes:  MC 630.09;  MC 692;  MC 692.02

The employe worked as a truck driver for the employer, a trucking company. On 12/29/98, the Wisconsin DOT mailed a letter to him indicating that his commercial driving privileges were cancelled due to a determination that he had sleep apnea. The letter contained appeal procedures. The employe did not actually have sleep apnea and testified that he believed he could continue to drive his truck while he pursued the appeal procedure. The fact that the employe is an immigrant with poor English language skills lent credibility to his testimony. The employe also testified that he showed the letter to an unidentified individual at the employer’s workplace, but that individual brushed him aside with no explanation. The employer had no one at the hearing with firsthand knowledge of events. The employe continued to drive while pursuing the appeal process, and his operating privileges were reinstated on 2/26/99. However, the employer found out about the license cancellation on 2/19/99, and fired him on that date for having driven without a valid commercial license. The appeal tribunal found misconduct, stating that the employe “knew or should have known” that his operating privileges had been cancelled and he should have informed the employer. The commission reversed, finding that the employe had not understood the import of the cancellation notice. The employer appealed and argued that the evidence, as well as a prior commission decision with almost identical facts, showed that the employe did fully understand the notice. The employer also argued that Wehr Steel (106 Wis. 2d 111) required the court to apply an objective standard of what a reasonable person in the employe’s circumstance would have reasonably believed, rather than a subjective test of actual intent.

Held: The commission is reluctantly affirmed in a bench decision. The judge was upset with the poor record made at the hearing, particularly because the employe’s testimony in the transcript is almost impossible to understand. The judge recognized that part of the problem was the employe’s poor facility with the language, but indicated that nevertheless, a better effort should have been made to elicit intelligible answers from him. The judge rejected plaintiff’s Wehr Steel argument, and accepted the issue as being primarily factual, i.e., revolving around the employe’s state of mind and intent after he received the DOT letter. The judge also accepted the presumption of eligibility. He held that the poor record had just enough comprehensible evidence to support the commission’s decision, and the employer had not successfully rebutted the presumption. The judge also noted that the commission’s determination of no culpable intent distinguished this case from the previous commission decision in which culpable intent had been found.

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

[LIRC decision]

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