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

Subject: William J. McKibbin (Hrg. No. 93200327EC) v. LIRC, Marten Transport Ltd., and R.E. Harrington, Inc., Case No. 95-0234 ,Wis. Ct. of Appeals, Dist. IV, February 29, 1996 (unpublished).

Please note that Wis. Stat. 809.23(3) provides that an unpublished decision of the Court of Appeals is of no precedential value and for that reason may not be cited in any court in this state as precedent or authority. Summaries of unpublished Court of Appeals decisions are included in this collection as an informational service only, and their use contrary to 809.23(3) is not encouraged.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 660  MC 662  MC 659.02

Employe, an over-the-road truck driver, fell asleep at the wheel of his rig. It rolled over and damage in the amount of $19,000 resulted. He was discharged. LIRC found misconduct, reasoning that the employe’s falling asleep at the wheel was negligence of such a degree that it would constitute misconduct despite the fact that it was a single incident. The circuit court reversed, holding that while the Boynton Cab misconduct standard does allow a finding of misconduct where there are either deliberate violations or disregard of the employer’s standards or carelessness or negligence of a certain degree or recurrence, the commission had ignored the definition of the degree of negligence required to find misconduct. The evidence here did not show conduct of such a degree of negligence as to manifest wrongful intent or evil design. The employer appealed .

Held: Circuit court decision is affirmed. The court does not defer to LIRC’s expertise because it is not in any better position that the court to determine when negligence crosses the line into misconduct under the Boynton test. Under the circumstances, the employer did not prove negligence to such a degree as to manifest a substantial and intentional disregard of its interests. In a fatigued state, the employe simply made one bad mistake.

[Circuit Court decision summary]

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

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