# Anderson v. Review Board of Indiana Employment Security Division

> Indiana Court of Appeals · November 25, 1980 · 412 N.E.2d 819

URL: https://www.frixlaw.com/law-library/cases/6598709

## Case

- **Full name:** Gilbert ANDERSON, Jr. v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, William H. Skinner, David L. Adams, and Paul M. Hutson, as Members of and as constituting the Review Board of the Indiana Employment Security Division, and Chrysler Corporation
- **Court:** Indiana Court of Appeals
- **Decided:** November 25, 1980
- **Citations:** 412 N.E.2d 819; 1980 Ind. App. LEXIS 1796
- **Precedential status:** Published
- **Opinion:** Concurrence by Hoffman
- **Judges:** Garrard, Hoffman, III, Staton
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6598709

## Opinion text

HOFFMAN, Judge,
concurring.
I concur in result but disagree with the discussion of Issue III in the majority opinion. The federal regulation employed in that discussion reads:
“(a) State ¡aw applies, [italics original] Except as stated in paragraphs (b) and (c) of this section, an individual shall not be paid a trade readjustment allowance for a week of unemployment for which the individual is or would be disqualified to receive unemployment insurance under an applicable State law.” (Emphasis added).
29 C.F.R. § 91.10 (1979).
This section of the regulations is clearly labeled, “Disqualifications.” It does not attempt to set forth the criteria of eligibility nor the factors which must be considered to determine eligibility. It merely sets forth one instance of exclusion. If an individual is not entitled to receive unemployment insurance under an applicable state law, he may not receive the allowance. This does not mean that, if an individual does receive unemployment insurance, he is, therefore, entitled to the allowance. This is a regulation of exclusion, not inclusion. Once the Board determines that the claimant is not excluded under this provision, then it is no longer necessary for this provision to play a role in the determination of eligibility.
The Review Board’s decision included the following findings of fact:
“His employment terminated on September 27, 1978 because the employer had no work available which the claimant was physically able to perform. On January 5, 1979 the claimant’s status was changed to indefinite layoff.”
As stated in Issue II of the majority opinion, this Court is bound by these facts. The Board’s application of the law to these facts, however, is in error. As of September 27, 1978, the claimant’s separation was due to his physical limitations. However, the change of status on January 5, 1979 resulted from the employer’s lack of work. The limited effect of the September layoff was to remove him from his current job until an opening occurred in another job which he could perform with his medical restriction. The effect of the January layoff was to separate him indefinitely from any employment at Chrysler. Therefore, as of January 5, 1979, the claimant was separated from adversely affected employment within the meaning of the Trade Act of 1974.
Based on these interpretations, I concur with the majority in result.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6598709. Public record. Not legal advice.