GLENN R. LOPPNOW, Claimant

WAUSAU PAPER CORP, Employer

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.

The decision of the administrative law judge is affirmed. Accordingly, the claimant is not eligible for Trade Readjustment Allowances.

Dated and mailed November 2, 2006
loppnow . tsd : 110 : 1  TRA

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The claimant worked for Wausau Paper Corporation for about 6 years. He last actually worked for there on October 28, 2004. His work there ended at that time because he had surgery on his knee on the following day, October 29, and was thereafter not physically able to do his old job. Following this surgery, the claimant did not return to work with Wausau Paper.

The claimant received workers compensation benefits for a time. He had further surgery on his knee in mid-June, 2005. He then received benefits through Wausau Paper's sickness and accident insurance plan for a time.

The claimant's physician released him to return to work in October, 2005, but with work restrictions which would require that he be given light duty. However, because Wausau Paper was by that point taking the position that the claimant's disability was not a work-related one, he was not eligible under its policies for an assignment to light duty work. Because he could not do regular work given his restrictions, he did not go back to work with Wausau Paper at that time.

Subsequently, after receiving UI benefits for a time, the claimant sought training benefits under the Trade Act. He was denied eligibility on the grounds that his separation from employment with Wausau Paper had not been because of lack of work, but rather because of his physical inability to do his job.

The claimant asserted that in October, 2005, there was work available at Wausau Paper which he could have done had it not been for the light duty work restriction he was still subject to; he also asserted that by December, 2005, there was no work at all available, and that everyone at his seniority level had been laid off at that point. He argues that if he had not been subject to the light duty work restriction, he would have been allowed to return to work in October, 2005, and that if he had been re-hired at that time, he then would have been laid off because of lack of work in December. For this reason he believes he should be eligible.

The commission cannot agree with the claimant's argument.

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. A claimant who stops working for an affected employer because of medical reasons rather than because of lack of work is not an "adversely affected worker" and is not eligible for benefits under the Trade Act. William Donnell (LIRC, Jun. 3, 1993) (separation was not for lack of work but because of industrial injury), Peggy Dallas (LIRC, Sep. 10, 2001). In the Peggy Dallas case, the claimant went on sick leave in early July 1999, went back to work on July 28, 2000 to see if she could handle the job, but then went off work again as of August 7, 2000 after her knees went out again. The commission concluded that these separations were not because of a lack of work, but were instead because of a medical problem.

Authority from other jurisdictions is consistent with this. In Embaby v. Dept. of Jobs and Training, 397 N.W. 2d 609 (Minn. Ct. App. 1985), the Minnesota Court held that a TRA claimant who was discharged because of continuing medical restrictions, and was allowed unemployment compensation over the employer's objection, was nonetheless ineligible for TRA because he was not laid off for "lack of work" and therefore was not an adversely affected worker. In that case, the claimant last worked for the affected employer on May 14, 1984, at which time he stopped working and went on personal leave. During the course of his leave of absence, the employer attempted to find him another position, either at his most recent job classification or at a lower classification. In August, 1984, the employer offered him a different job, but he was unable to accept that position due to another (unrelated) medical restriction. The claimant continued to be on leave until February 22, 1985, when he was discharged. When the claimant's UI ran out he applied for benefits under the Trade Act, but his claim was denied based on the conclusion that he was separated for medical reasons and not because of a lack of work. The court upheld this conclusion, stating:

While a separation from employment may occur for more than one reason...here the record supports the representative's determination that Embaby was discharged primarily because of his medical reasons, and not because of a lack of work... Embaby's position was not eliminated; were it not for his medical problems, he could have continued working. In August, the employer found him another position which he was unable to accept, due to another medical restriction. This evidence, as a whole, supports the representative's determination that Embaby was separated because of his medical problems and not because of a lack of work.

397 N.W. 2d at 311-12. See also, Deemer v. Commonwealth, UC Bd. of Review, 58 Pa. Commw. 46, 426 A.2d 1277 (Commonwealth Ct of PA, 1981). In that case, the claimant last worked for the affected employer as of May 11, 1978, at which time he stopped work as a result of a medical problem, and went on paid leave. He was released to return to work as of May 31, 1979. At that time he learned that his former position had been eliminated in August, 1978. He applied for benefits under the Trade Act but was denied based on the conclusion that he did not satisfy the requirement in 19 U.S.C. § 2291(2) that a claimant have had, in the 52 weeks immediately preceding their separation, at least 26 weeks of employment at in adversely affected employment. He argued that if his date of separation was deemed to be May 31, 1979, the weeks prior to that time that he had spent on paid leave should be considered weeks in adversely affected employment sufficient to meet that requirement. This argument was rejected based on precedent establishing that paid leave could did not satisfy the "weeks of employment" requirement. The claimant also argued, in the alternative, that his "separation" should be considered to have occurred in August, 1978, when his position was eliminated (this would have had the result of allowing him to satisfy the 26-week requirement). This alternative argument was also rejected, the court stating:

Nor can we accept the contention that the petitioner's date of separation should have been set at August 18, 1978, when his former job was eliminated. Section 91.3(a)(13) of the regulations defines "date of separation" as the date upon which an employee becomes totally separated from his employment, 29 C.F.R. § 91.3(a)(13), and such a separation must have been caused by a "lack of work in adversely affected employment. . . ." 29 C.F.R. § 91.3(a)(4)(i). Any interruption of the employment of the petitioner here, at least through May 31, 1979, was due entirely to his medical condition. His eligibility must, therefore, be based on the 52 weeks preceding May 31, 1979.

426 A.2d at 1279 (emphasis in original).

As noted above, the claimant's argument is that even though he in fact stopped working for the employer because of medical problems, if his employment had somehow continued or resumed he would have been laid off for lack of work, so that he should be found eligible. However, the Trade Act's eligibility standards look to the actual reason that an employee was separated from their employment, not at the essentially hypothetical question of what could have or would have happened if the separation which did occur, had not occurred at the time it did. This is illustrated by the fact that in cases where a person voluntarily leaves their employment to take other work when they learn that they are going to be laid off at some future point, their separation is not considered to be "because of lack of work" -- even though it may be certain that if they had stayed at work, they would have been laid off because of lack of work at some identifiable future point. See, e.g., Janet Derouin (LIRC, June 26, 2006) and decisions cited therein.

For the foregoing reasons the commission affirms the decision of the ALJ.

cc: Attorney Robert J. Gray

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