STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

PEGGY A. DALLAS, Claimant

TRADE ACT DECISION
Hearing No. 01605105MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the claimant is not eligible for Trade Readjustment Allowances based upon her separation from adversely affected employment at Tower Automotive on August 7, 2000.

Dated and mailed September 10, 2001
dallape . tsd : 110 :  TRA 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

This case concerns the question of the eligibility of claimant Peggy A. Dallas for TRA (Trade Readjustment Allowances) benefits. (1)

Claimant worked as a welder for Tower Automotive, an employer certified as having been adversely affected by foreign competition. The Department of Workforce Development issued an Initial Determination which found her ineligible for TRA benefits because she had an inadequate number of weeks of work in her qualifying period. She appealed, and after hearing, an administrative law judge affirmed the determination of ineligibility, although he relied on a different grounds, which was that the claimant was not separated from work because of lack of work, as is required to establish eligibility under the Trade Act.

Separation due to lack of work - Benefits under the Trade Act may only be paid to an "adversely affected worker". 19 U.S.C. § 2319(2) states that for purposes of the Trade Act,

The term "adversely affected worker" means an individual who, because of lack of work in adversely affected employment -

(A) has been totally or partially separated from such employment, or

(B) has been totally separated from employment with the firm in a subdivision of which such adversely affected employment exists.

(emphasis added). Thus, for a claimant to be eligible for TRA benefits they must have been separated from work because of lack of work. See, Frank C. Fore (LIRC, December 13, 2000) (voluntary separation before and in anticipation of business closing is not "because of" lack of work).

The ALJ found that claimant was not separated from employment because of lack of work, but because of medical reasons. In her petition for review, the claimant disputes this, asserting that she was on sick leave but was then released to return to work by her doctor on February 1, 2001, and that at that time she was then laid off for lack of work. However, the commission is satisfied that the ALJ's findings are supported by the record. The claimant testified, that she went on sick leave in 1999, probably on July 7, that she then went back to work on July 28, 2000, and that she then went off work again as of August 7, 2000. She also testified, that she was told to go back to work to see if she could handle the job, but that her knees went out again, and so she went back on sick leave again. She also testified that after she went off work on August 7, 2000, that lasted until February 1, 2001.

Contrary to the assertions in her petition for commission review, that claimant did not testify that she returned to work (or attempted to return to work) on February 1, 2001, or that she was laid off due to lack of work at that time. She simply testified that she reopened her unemployment claim again on February 3, because she was off on sick leave again.

The commission therefore concludes that the claimant did not establish through her testimony at hearing that she was separated from employment because of lack of work. The finding that the separation was not because of a lack of work, but was instead because of a medical problem, is thus appropriate.

Sufficient weeks of affected employment - The Trade Act requires that claimants have a minimum of 26 weeks of work with the adversely affected employer within the qualifying period preceding their separation. 19 U.S.C. § 2291(2). It is clear that the claimant had only about one week of actual employment in her qualifying period.

While she spent many weeks on sick leave, and while weeks spent on sick leave may in some cases be treated as weeks of affected employment, a maximum of seven such weeks of sick leave may be treated as weeks of affected employment under the Trade Act. 19 U.S.C. § 2291(2)(A). This leaves claimant far short of the required 26 weeks.

Claimant also asserted that the condition for which she was off work was compensable under the Workmens' Compensation law. While weeks in which a claimant does not work because of a disability that is compensable under workmen's compensation law may be treated as weeks of affected employment, without a limitation as to the number of weeks, see 19 U.S.C. § 2291(2)(A), in claimant's case the question of compensability was in dispute and no compensation has yet been paid. The record does not establish that the claimant's condition was compensable, but merely that she is contending that it is.

Therefore, there is no basis for finding that the claimant had a sufficient number of weeks of affected employment in her eligibility period. (2)

For the foregoing reasons, the commission agrees with and has adopted the decision of the ALJ.


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Footnotes:

(1)( Back ) Trade Readjustment Allowances are weekly benefits payable under the Trade Act of 1974, 19 U.S.C. § 2101 et seq., a federal law intended to ameliorate the effects on workers from foreign competition which adversely affects businesses here in the U.S.

(2)( Back ) As the ALJ noted, even if it is at some point established by the WC Division that the condition which caused the claimant to be off work is compensable under the WC Act, it will remain the case that there was no separation "because of" lack of work, so that claimant will remain ineligible for TRA benefits.

 


uploaded 2001/09/17