Former tree trimmer for Shade Tree Service prevails in challenge to unemployment benefits

By Sam Knef | Jul 1, 2017

A tree trimmer has prevailed in an appeal that challenged his right to unemployment benefits.

ST. LOUIS — A tree trimmer has prevailed in an appeal that challenged his right to unemployment benefits.

In a decision handed down June 13, the Missouri Court of Appeals, Eastern District found in favor of Kristopher Weppner whose former employer appealed the Missouri Labor and Industrial Commission's finding that he was not "disqualified" for unemployment.

Weppner had been employed by Shade Tree Service Co. of Fenton until an incident in which an aerial lift, or boom, he was operating came into contact with power lines. The incident resulted in damage to the company's equipment and power lines and knocked out power to a nearby factory.

Prior to the boom contacting power lines, Weppner "momentarily became distracted when he observed an oncoming semitruck that looked as though it was going to collide with Claimant’s truck," according to the ruling.

Unemployment stayed constant at 5.5 in March.   Flazingo Photos / Flickr

He was discharged because his "(e)mployer believed his operation of the boom disregarded Employer's policies, safety standards and practices," the ruling states.

Initial proceedings before the Division of Employment Security determined Weppner was not qualified for benefits because he was discharged for "misconduct" for not following the company's operational rules.

An Appeals Tribunal later affirmed the division's finding, which was followed by Weppner's application for review by the commission.

The commission then reversed the prior rulings, finding that Weppner was not disqualified from receiving benefits because he was not terminated for misconduct connected with his work.

The appeals court panel agreed, finding that with respect to disputed facts, Weppner "was credible."

The ruling states that before the incident, Weppner had asked his supervisor to be his spotter prior to him operating the boom, but that the supervisor "refused and instructed [Claimant] to operate the boom, regardless of the spotter’s presence.”

Although Weppner knew he was required to have a spotter, he proceeded anyway fearing that he would be discharged for insubordination if he did not do so, according to the ruling.

"Employer provided insufficient evidence establishing Claimant’s 'momentary distraction was of such severity as to manifest culpability,'" the ruling states. "Claimant did not grossly disregard Employer’s policies, standards and practices. To the extent Claimant may have violated a policy, 'where an employee is following a supervisor’s instructions, an employer’s enforcement of a contrary ‘rule’ is unfair.'

"Employer failed to establish that Claimant’s conduct was frequent or severe enough to constitute misconduct under Missouri law, and Claimant was not discharged for misconduct connected with work.”

The appeals panel included Judges Robert Dowd Jr., Angela Quigless and Lisa S. Van Amburg.

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