The opinion of the court was delivered by: Robert Simpson, Judge
Submitted: February 10, 2012
BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
Marsha Hall (Claimant), representing herself, petitions for review of an order of the Unemployment Compensation Board of Review (Board) that denied her claim for Trade Readjustment Assistance (TRA) benefits for failing to comply with the program‟s deadlines under Section 231 of the Trade Act of 1974 (Trade Act), 19 U.S.C. §2291. Claimant contends she is entitled to TRA benefits because her failure to meet the Trade Act‟s enrollment deadlines was caused by an administrative breakdown within her local Pennsylvania CareerLink (CareerLink) office and the Department of Labor & Industry (Department). Upon review, we vacate and remand.
Prior to her separation from employment in 2009, Claimant worked for Hydro Carbide Inc. While collecting state unemployment benefits, the Department notified Claimant of her potential eligibility for additional benefits under the TRA program.*fn1 Shortly thereafter, Claimant received and signed a certification indicating she understood the TRA benefits program and its enrollment deadlines. Specifically, Claimant knew she was required to either enroll in approved training or receive a written waiver of that requirement by July 2010. Subsequently, Claimant met with advisors from the local CareerLink office to complete her TRA benefits paperwork. However, Claimant did not timely enroll in a training program or receive a waiver. Rather, in the fall, after her July deadline, Claimant enrolled at a community college for approved training in business management.
In February 2011, Claimant‟s unemployment benefits ended, and her supplemental TRA benefits did not begin as she expected. At this time, Claimant learned that she had not received a waiver of her prior July deadline, which would allow her to wait until the fall to enroll in approved training, and that her TRA benefits were never authorized. Claimant filed an appeal claiming entitlement to TRA payments.
Before a referee, Claimant testified on her own behalf, and the Department presented the testimony of two witnesses from the local service center and CareerLink office. Claimant‟s previous employer did not provide any testimony.
Claimant testified that between February and August 2010 she attended several meetings with CareerLink counselors to establish her entitlement to TRA benefits. Notes of Testimony (N.T.), 4/27/11, at 8-9. Specifically, upon learning she was included in a group certified as eligible for TRA benefits, Claimant attended a February benefits meeting to learn about the program. Thereafter, Claimant initiated the process to receive TRA benefits, and researched the approved training courses. Id. at 8. Upon doing her own research, Claimant learned that summer classes were limited in number and that she would likely need to wait until the fall to enroll. Id.
Claimant further testified that in April she met with CareerLink counselor Hope Norton (Norton) to discuss her difficulty enrolling in summer classes. Id. At that time, Claimant requested a waiver of her TRA deadline so she could wait to enroll in approved community college classes for the fall semester. Id. at 12. Importantly, Norton assured Claimant that she would "take care of" her paperwork. Referee‟s Dec., 5/5/2011, Finding of Fact (F.F.) No. 3. Thereafter, Norton scheduled a community college entrance exam for Claimant, and she told Claimant to come back to the CareerLink office to fill out a contract when she made her final decision on class selection. N.T. at 8, 12.
Then, in August, Claimant returned to the CareerLink office and informed a counselor that she selected her classes and intended to study Business Administration. Id. at 9. Thereafter, a CareerLink counselor helped her fill out the necessary paperwork. Id. At that time, believing she received the proper waiver, Claimant enrolled at the community college for the fall semester, which began after her July TRA deadline. Id. at 11.
Throughout the fall semester, Claimant continued to receive her state unemployment compensation benefits. However, in December, Claimant contacted the local service center to inquire as to when she would receive her TRA benefits, and whether she needed to do anything to begin receiving those funds. Id. at 9. The TRA representative told Claimant her benefits would automatically begin after her other benefits were exhausted, and that she did not need to do anything more to receive them. Id. Subsequently, in March 2011, Claimant learned for the first time that a waiver of her enrollment date had not been issued, and she was not entitled to receive TRA benefits. Id.
Of significance, the Department‟s witness from CareerLink, Lorri Douglass (Douglass), corroborated Claimant account and testified that "[a]ll of the information that [Claimant] said is correct according to our record." Id. at 12-13. Douglass further testified the local CareerLink office recently underwent substantial downsizing. Id. Specifically, Douglass explained that Norton, Claimant‟s original counselor, retired in June 2010, and that her files were still in the process of being transferred. Id. To that end, Douglass could not explain what happened to Claimant‟s file or her application for a waiver. Id. at 13.
However, the Department‟s other witness, Tracy Marcus (Marcus), testified that despite Claimant‟s representations the onus was on Claimant to vigilantly meet the TRA program‟s deadlines. Id. at 13-14. To that end, Marcus testified Claimant did not enroll in approved training by July 2010 or receive a waiver of that deadline; therefore, she was ineligible for TRA benefits. Id. at 7, 10-11, 13-14. Furthermore, Marcus explained it was the Department‟s view, pursuant to Lowe v. Unemployment Compensation Board of Review, 877 A.2d 494 (Pa. Cmwlth. 2005), that a claimant is not permitted to untimely enroll or apply for a waiver under the Trade Act even when the claimant relied on negligent or misleading advice from CareerLink representatives. N.T. at 4, 13-14.
Upon consideration, the referee determined because Claimant did not meet the deadlines imposed by the Trade Act, and nunc pro tunc, *fn2 or "now for then," relief was not available under Lowe, Claimant was ineligible for TRA benefits. Claimant appealed, and the Board affirmed, adopting ...