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. 08605799MW


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, except that it makes the following modifications:

Delete the 5th, 6th and 7th paragraphs of the Findings of Fact and Conclusions of Law.

Delete the last paragraph of the Findings of Fact and Conclusions of Law, and substitute therefor the following:

The appeal tribunal further finds that the claimant was paid Trade Readjustment Allowances in the amount of $355 for week 19 of 2008, and that unrecoverable training costs in the amount of $6,595 were paid for training which, as of week 19 of 2008, the claimant failed without good cause to complete, all in the total amount of $6,950, which constitutes an overpayment pursuant to 20 C.F.R. § 617.55(c), and that the claimant is required to repay that amount to the department.

Delete the NOTE appended to the end of the ALJ's Decision, and substitute therefor the following:

NOTE: Federal law allows a waiver of an overpayment of Trade Readjustment Allowances under certain circumstances. To obtain a determination on whether such a waiver can be granted, the claimant must file an application for a waiver. An application for waiver form can be obtained by sending a request to the Division of Unemployment Compensation, TRA Unit, P.O. Box 7965, Madison, WI, 53707.

20 C.F.R. § 617.55, governing waiver of an overpayments of TRA, provides in relevant part:

...the State agency shall recover any such overpayment in accordance with the provisions of the this part 617; except that the State agency may waive the recovery of any such overpayment if the State agency determines, in accordance with the guidelines prescribed in paragraph (a)(2) of the section, that:

(i) The payment was made without fault on the part of such person or individual; and
(ii) Requiring such repayment would be contrary to equity and good conscience.

More detailed information on the standards for granting a waiver may be obtained from the Division.

 

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the claimant is required to repay the sum of $6,950 to the department.

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

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

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 claimant's training was a certified medical assistant program, through a training institution named Bryant & Stratton. That program concluded with an "externship" which was to consist of at least 160 hours of work as a medical assistant at a clinic.

The claimant was absent for a significant part of her externship. The training institution eventually dropped her from the program because of poor attendance in, and failure to make satisfactory progress in, her externship.

Department of Labor regulations under the Trade Act provide:

20 C.F.R. § 617.55 Overpayments; penalties for fraud
. . .
(c) Training, job search and relocation allowances.

(1) If an individual fails, with good cause, to complete training, a job search, or a relocation, any payment or portion of a payment made under this part 617 to such individual or any person that is not properly and necessarily expended in attempting to complete such training, job search, or relocation, shall constitute an overpayment.

(2) If an individual fails, without good cause, to complete training, a job search, or a relocation, any payment made under this part 617 to such individual or any person shall constitute an overpayment.

The issue for decision is whether the claimant failed to complete her course of training "without good cause" within the meaning of this regulation.

When one considers all of the days on which the claimant was absent from her externship, it is understandable why the claimant would not have been making satisfactory progress, and why the program would have decided to drop her. From when her training began on April 2, until she was notified on May 10 that she was being dropped from the program, the claimant was absent for 37 hours out of the 154 hours available during that time period given her schedule. (1)   In other words, she was absent for close to 25% of the time.

The claimant provided some testimony that could be taken as a claim that part of the reason she was dropped by the program was that she was not learning to correctly perform the tasks in which she was being trained. If an individual fails to successfully complete a training program because, despite their best efforts, they are unable to master the skills being taught, there could be reason to say that their failure was with "good cause", i.e., innate inability. But here, the evidence is persuasive that the main if not the sole reason that the claimant was dropped from her training was poor attendance. In any event, even if the claimant's inability to satisfactorily perform skills being taught was part of the decision, it is a reasonable inference that this inability was directly related to her poor attendance.

The claimant offered explanations for her absence on only some of the days she missed. Thus, she asserted that she left training early on April 16 because she became upset when she had trouble with a blood draw and she was crying so bad she had to go home. She asserted she took April 18 off to study for a certification test (part of the training) that was coming up the following day. She asserted that she was off on April 29 and 30 because her son got in trouble. She asserted that she was scheduled off on April 7, but this merely establishes that she asked for the day off and took it off with notice; it explains nothing about the reason why she chose not to take that day off. Significantly, she offered no explanation at all for other days (April 4, April 16, May 7) on which she was absent from training.

The commission agrees with the decision made by the ALJ, that the claimant's failure to complete her course of training was "without good cause" within the meaning of the applicable regulation.

Under 20 C.F.R. § 617.55, if an individual fails, without good cause, to complete training, "any payment made under this part 617 to such individual or any person shall constitute an overpayment". The ALJ correctly applied this to mean, that in such cases the individual must reimburse the cost expended on their training. While the payments made by the department to cover the cost of the claimant's training were not made directly to the claimant, but instead to the training institution, the regulation states that if an individual fails without good cause to complete training, "any payment made under this part 617 to such individual or any person" shall constitute an overpayment. The "part 617" referred to encompasses the entire subpart of Chapter 20 of the Code of Federal Regulations which governs the entire Trade Act benefit program; thus, it extends to training benefits as well as to weekly TRA payments. In addition, the reference to payments made to an individual "or any person" is clearly intended to reach to payments made to third parties on the behalf of a claiming displaced employee -- such as payments of training expenses.

In addition, the TRA payment made for the week in which the failure to complete the training unambiguously occurred -- here, week 19, the week in which the claimant was dropped from the training -- is also a payment which must be deemed an overpayment.

For the foregoing reasons, the commission affirms the ALJ's decision that the claimant's failure to complete training was without good cause and that the training costs expended by the department on her behalf, as well as the TRA payment made to her in week 19, the week in which she was dropped from the training, are overpayments which must be repaid by the claimant to the department unless the overpayment is waived.

The commission has modified the Appeal Tribunal decision, however, to eliminate the discussion about whether recovery of the overpayment could be waived. This issue should not have been addressed in this decision.

The commission has previously explained:

[U]nlike the system created by Wisconsin law in which decision makers are expected to address and resolve the relevant questions about whether recovery of an overpayment should be waived as a part of any decision which creates such an overpayment, under the Trade Act the question of whether recovery of an overpayment should be waived is to be taken up subsequently and separately, and then only in response to a formal application by a claimant for waiver of an overpayment after it has been determined. 20 C.F.R. § 617.55(a)(2)(ii)(C)(3) provides:

Determinations granting or denying waivers of overpayments shall be made only on request for a waiver determination. Such request shall be made on a form which shall be furnished to the person or individual by the State agency. Notices of determination of overpayments shall include an accurate description of the waiver provisions of paragraph (a) of this section.

In re Laurie Kowalczyk (LIRC, Feb. 28, 2005). For this reason, decisions which create an overpayment under the Trade Act do not need to -- indeed, should not -- address the question of whether the overpayment thus created should be waived. They should at most explain the procedures the claimant should follow if they wish to seek a waiver of the overpayment. Ibid. These procedures are outlined in the modifications ordered above (supra at p. 1) to the NOTE attached to the ALJ's decision.

 

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



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Footnotes:

(1)( Back ) The claimant's training, which began on April 2, was scheduled from 8:30 AM to 2:00 PM, or 5.5 hours/day, Monday through Friday.

 


uploaded 2009/02/09