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

SELENA D GRIFFIN, Claimant

TRADE ACT DECISION
Hearing No. 08605798MW


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The claimant was eligible for benefits under the Trade Act. In connection with this, she was enrolled in a course of approved training, the cost of which was being paid for her by the department, pursuant to the Trade Act. The payments of her tuition and fees for this training were thus a form of Trade Adjustment Assistance ("TAA") benefit. In addition to this, because of her status of being enrolled in training, the claimant was also eligible for, and was receiving, weekly Trade Readjustment Allowances payments (commonly referred to as TRA).

The claimant's training was a certified medical assistant program, through a training institution named Bryant & Stratton. It involved class work, which was then followed by an "externship" which was to consist of at least 160 hours of work as a medical assistant at a clinic.

The claimant completed the class work portion of her training, and she then began her externship on April 2, 2008 (week 14), at Bayview Health Clinic. Her schedule was 8:30 AM to 2:00 PM, Monday through Friday, this providing her with 27.5 hours/week. With regular attendance, the claimant would have had her 160 hours in a little less than 6 weeks, or by around May 16.

During her externship, the claimant completed weekly "Request for Allowances" forms. These forms included questions as to whether the claimant attended all scheduled classroom training approved under the Act and as to whether there was a scheduled break in training. It also contained a chart on which the claimant was to note her actual attendance in training for that week. For each day of the week, the claimant was to note either "P" for "present" or "A" for "absent".

A question exists as to what became of these weekly "Request for Allowances" forms. The claimant had a "TRA Coordinator", a department employee whose responsibilities with respect to the claimant's case were apparently focused on monitoring her eligibility for weekly TRA payments. The claimant also had a "TAA representative," also a department employee, whose responsibilities apparently had the somewhat different focus of arranging for the claimant's training program and monitoring her participation in it. It appears that the claimant may have been filing her weekly "Request for Allowances" forms with her TRA Coordinator. However, there is actually no direct evidence in the record that this is where she filed them. Facsimile transmission markings on some of "Request for Allowances" forms also suggest the possibility, that the claimant filed them with instructors or supervisors at Bryant & Stratton, or at her externship placement, and that they then (after adding an acknowledging signature) transmitted them to a department representative, presumably the claimant's TRA Coordinator.

Wherever she actually filed them, it does appear that these "Request for Allowances" forms did eventually find their way to the department, on a weekly basis, and that the claimant was aware of this. However, as is discussed at more length below, the exact nature of the effect that these forms may have had on her continued eligibility for TRA benefits on a week-by-week basis, is unclear.

In any event, the claimant filed weekly "Request for Allowances" forms for weeks 14 through 19. On each of these forms she answered "yes" to the question of whether she attended all scheduled classroom training approved under the Act. She also made entries relating to her day-by-day attendance. According to the claimant's entries (which she actually made by entering an "X" rather than a "P"), she was present on Tue.-Fri. of week 14, Tue.- Fri. of week 15, Mon.-Thu. of week 16, Mon.-Fri. of week 17, Mon.-Fri. of week 18, and Mon.-Fri. of week 19. Thus, the claimant reported being absent from her externship on at least one day during each of three of these six weeks. Nevertheless, she was paid TRA for all six weeks.

In fact, the claimant had also not attended her externship on a number of other days, days for which she had made marks on her weekly reports purporting to show that she had attended. Specifically, the claimant was absent on April 4, April 29, April 30, and May 7, and she left 4 hours early (thus effectively missing most of her 5.5 hour shift) on April 16; however, she marked an "X" for herself on her weekly "Request for Allowances" forms for each of those days. At the hearing, she testified that she "did not know why" she had made the marks indicating that she was present on those days when she had in fact been absent.

On May 10 (week 19), the claimant was notified by a teacher at Bryant & Stratton that she was being dropped from the certified medical assistant program because of poor attendance in, and failure to make satisfactory progress in, her externship. By May 12, the claimant's TAA representative had also been notified of this. It appears that at some point after this, the TAA representative then told the TRA coordinator on the case about the situation.

The claimant did not file weekly "Request for Allowances" forms for weeks 20 and 21, and she was not paid TRA payments for those weeks. Then, however, the claimant again filed a "Request for Allowances" form, for week 22. This had to do with the fact that, at least according to the claimant's testimony, after she was dropped from her externship she asked a Bryant & Stratton teacher if she could find her own externship, that teacher said "she didn't see why not", and the claimant then arranged to get some hours at Milwaukee Health Clinic in that week. The "Request for Allowances" form which the claimant filed in and for week 22 apparently reported these hours.

The department paid the claimant TRA payments for week 22. Exactly how or why this happened, given that approximately two weeks before the claimant's TAA representative had been notified that the claimant had been dropped from her training program, is not clear.

The department subsequently issued a determination that the claimant had "concealed a material fact relating to her eligibility for benefits" during weeks 14-19, and week 22, and that she was therefore ineligible for any further benefits under the Trade Act commencing with week 14. The determination also found that there was an overpayment of TRA benefits in the amount of $355 for each of those weeks in which the claimant was paid such benefits, which the claimant was required to repay. (1)   The claimant appealed, and an administrative law judge acting as an Appeal Tribunal for the department affirmed the determination. The claimant has petitioned for commission review. 
 

Discussion -- The department determination in this matter made express reference to Wis. Stat. § 108.04(11), which is the provision of the Wisconsin UI Act dealing with concealment in the making of claims for Wisconsin UI benefits. The ALJ also appeared to rely on that section. (2)

This was an error. As the commission has repeatedly emphasized, the provisions of the Wisconsin UI Act dealing with concealment of material facts in making UI benefit claims is not applicable to issues involving alleged concealment in regard to benefits under the Trade Act:

The Trade Act does not adopt state law provisions concerning the penalty to be imposed for concealment of material facts in connection with claiming. Rather, the Trade Act sets out its own provision governing such matters, which is found in 19 USC § 2315. It is this provision, and not Wis. Stat. § 108.04(11), which should be applied in concealment cases involving TRA benefits.

In re Cornell Stroik (LIRC, March 22, 2004). The commission has also held:

[W]here a different procedure or standard is expressly provided for under federal law for Trade Act benefit claims, it clearly takes precedence. The Trade Act has a specific provision governing concealment of material facts in the making of claims for benefits under that Act, and the Department of Labor has also promulgated regulations concerning this. For these reason, Wisconsin's "Fraudulent Claims" provision, § 108.04(11), must be construed to apply only to concealment in the making of claims for benefits under Wisconsin's UI Act, and not to concealment in the making of claims for benefits under the Trade Act.

In re Charles Hale, (Hrg. No. 05403511GB, LIRC, April 19, 2006). It is important to correctly apply the relevant federal law relating to concealment in regard to Trade Act benefits, because it is substantively different from Wisconsin law on concealment in regard to UI benefits.

The Trade Act provides:

19 U.S.C. § 2315. Fraud and recovery of overpayments
. . .
(b) False representation or nondisclosure of material fact. If a cooperating State agency, the Secretary, or a court of competent jurisdiction determines that an individual --

(1) knowingly has made, or caused another to make, a false statement or representation of a material fact, or

(2) knowingly has failed, or caused another to fail, to disclose a material fact,

and as a result of such false statement or representation, or of such nondisclosure, such individual has received any payment under this chapter to which the individual was not entitled, such individual shall, in addition to any other penalty provided by law, be ineligible for any further payments under this chapter.

There is really no question here but that the claimant knowingly made false statements and misrepresentations as to material facts, specifically, her attendance at her training program. She effectively admitted as much at the hearing.

However, this does not end the analysis. In order for the penalty provided in the Trade Act (ineligibility for any further benefits) to apply, it is also necessary that the individual received payments to which they were not entitled "as a result of" the misrepresentation. In other words, the making of false statements is, in and of itself, not sufficient to cause the penalty to apply -- the false statements have to actually cause the individual to receive payments they would not have otherwise received. Thus, in this case, the question is whether as a result of her false statements about her attendance, the claimant received any payment under the Act to which she was not entitled.

The ALJ's decision stated this rationale:

[The claimant's] failure to properly notify the department of her attendance, under such circumstances, constituted concealment of a material fact relating to TRA eligibility. In turn, such absences caused her to be removed from the certified medical assistant program, and the department to absorb the costs of the training without reimbursement from the training institution.

Taken individually, these assertions are essentially correct. The problem is, that they are not connected in the way which is required by the standard in the Trade Act. As the ALJ states, it was the absences themselves, not the false reports about the absences, which caused the claimant to be dropped from the training program. But as noted above, the real question is whether the claimant was paid benefits to which she was not entitled because of the false reports she made.

In the commission's view, determining whether the claimant received benefits she was not entitled to "as a result of" making false statements and representations, requires determining what would have happened if the claimant had accurately reported her attendance on her weekly "Request for Allowances." If an accurate attendance report by the claimant in each week at issue would have resulted in the reduction or elimination of her TRA eligibility for that week, then it would be appropriate to find that the she was paid benefits to which she was not entitled "as a result of" her false statement. On the other hand, if the claimant would still have been paid TRA for the weeks at issue even if she had accurately reported her attendance in those weeks, then it cannot be said that she received benefits to which she was not entitled "as a result of" her false statement.

Neither the determination nor the Appeal Tribunal decision cite, and the commission's attention has not otherwise been directed to, anything in the Trade Act or the Department of Labor's regulations thereunder that sets any fixed, numerical attendance standards for participants in training programs. Put plainly, there does not appear to be any authority which that states that if a claimant misses one hour, or one day, or some other amount, of scheduled training in a particular interval, they are automatically ineligible for TRA payments for the week in which the absence occurs. Furthermore, there is nothing in the record in this case which indicates that the claimant's training contract with the department and the training institution incorporated such a standard.

The commission also finds it significant, that the record here in fact shows that for several of the weeks at issue, the claimant's "Request for Allowances" forms actually reported that she had attended less than the full five days, yet she was still paid TRA for those weeks. This shows, that the department itself was not applying a standard of requiring 100% attendance or denying payment of TRA if one day of training was missed in a week.

It is possible to speculate that if the claimant's "Request for Allowances" form for a given week had showed that she missed two days out of a week, or more, this might have resulted (pursuant to some undisclosed authority) in a determination that she was ineligible for TRA payments for that week. However, speculation is not sufficient to support a finding.

In order to be able to conclude that the claimant received benefits to which she was not entitled in the weeks at issue "as a result of" false statements, the commission would have to be able to find that, if she had truthfully reported her attendance, this would have resulted in a reduction or elimination of her benefits for that week. The record here does not allow it to make that finding.

For all of the foregoing reasons, the commission therefore finds that, while in weeks 14, 16, 18 and 19 of 2008 the claimant knowingly made a false statement or representation of a material fact, she did not receive any payment under the Trade Act to which the she was not entitled "as a result of" such false statement or representation, within the meaning of 19 U.S.C. § 2315.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the claimant is eligible for Trade Readjustment Allowances and other benefits under the Trade Act as of week 14 of 2008, if she is otherwise qualified. There is no overpayment as a result of this decision. See the NOTE appended to the end of this decision.

Dated and mailed February 6, 2009
griffin . trr : 110 :  TRA

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: Under the Trade Act, the effect of a finding under 19 U.S.C. § 2315 that a false statement or representation was made and resulted in the payment of benefits not due, is that the claimant is "ineligible for any further payments under this chapter". 19 U.S.C. § 2315(b). In this case, because the claimant was found to have first made a false statement or representation in week 14 of 2008, the effect was an automatic ineligibility for that week and all further weeks for which she was paid. That thus covered weeks 14-19 and week 22. The commission's reversal of that finding removes that ineligibility.

However, the claimant should note that this decision holds only that the claimant is eligible for certain Trade Act benefits as of week 14 of 2008, if she is otherwise qualified. This means that if another decision finds the claimant ineligible for benefits in certain weeks, on other grounds, that other decision has the effect of making her ineligible as to such weeks.

In another decision issued on this date, the commission has in fact found the claimant ineligible for TRA payments for week 19 of 2008, based on other grounds (failure without good cause to complete a training program). That determination of ineligibility remains in effect despite the fact that this decision was issued.

In addition, the commission notes that an issue may exist as to the claimant's eligibility for TRA payments for week 22 of 2008, having to do with whether the claimant can be considered to have actually been participating in approved training in that week by working hours at Milwaukee Health Clinic. The department may choose to investigate and issue a determination on that issue. If the department issues a separate determination that the claimant was not eligible for TRA payments for week 22 of 2008, that determination will be in effect despite the fact that this decision was issued.

This decision also holds only that there is no overpayment determined in connection with this decision. This means that if another decision finds that the claimant has been overpaid benefits for certain weeks, based on other issues, that other decision has the effect of creating such an overpayment.

In another decision issued on this date, the commission has in fact found the claimant was overpaid TRA payments in the amount of $355 for week 19 of 2008, and also that unrecoverable training costs in the amount of $6,595 were overpaid for claimant, all in the total amount of $6,950. That overpayment remains in effect despite the fact that this decision was issued.


cc: 3M Touch Systems Inc., Attn: David Kopfer



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Footnotes:

(1)( Back ) The determination noted that one of these weeks (week 19) was also the subject of a separate determination finding the payment in that week to have been an overpayment, on other grounds. It therefore limited itself to ordering repayment of the overpayment for the other six weeks (14-18 and 22), which (at $355/week) totaled $2,130.

(2)( Back ) The ALJ used the "concealed a material fact" language found in § 108.04(11), and was presumably intending to refer to that provision in his reference to "section 108.11 (sic) of the Wisconsin Statutes." Wis. Stat. § 108.11 actually concerns a different issue. From context, it appears this was a typographical error and that the intended reference was to § 108.04(11).

 


uploaded 2009/02/09