PATRICIA L. COHEN, Presiding Judge.
Staci Adams (Claimant) appeals from the decision of the Labor and Industrial Relations Commission denying payment of a trade readjustment allowance (TRA) under the Trade Act of 1974 ("Trade Act") on the grounds that she failed to file a timely request for a training waiver. Claimant contends that the Commission erred in refusing to apply the doctrine of equitable tolling to extend the relevant statutory deadlines. We reverse and remand for further proceedings consistent with this opinion.
Claimant worked as a material engineer at two Chrysler plants in Fenton, Missouri. On November 29, 2008, Claimant's employer, TAC Automotive Transportation (TAC), headquartered in Auburn Hills, Michigan, laid off Claimant. Claimant searched unsuccessfully for employment for almost a year.
In October 2009, Claimant met with counselor Tricia Barb at the Missouri Division of Workforce Development (DWD). Claimant was interested in continuing her education as a way to reinvent herself for future employers. Barb advised Claimant that she might be eligible for benefits under the Trade Act, a federal law designed to help workers who have lost jobs due to competition from international trade.
On November 16, 2009, Claimant filed a claim and request for benefits under the Trade Act.
Claimant was scheduled to start classes to continue her education on January 19, 2009. On January 15, 2009, Claimant visited the DWD to confirm that she had fulfilled the requirements for receiving TAA and TRA under the Trade Act. That day, Moddie Fox informed Claimant that the DWD was denying Claimant TRA because Claimant failed to timely request a training waiver as required under the Trade Act.
Claimant requested a training waiver immediately, but Fox denied the request as untimely. Fox explained that, because Claimant did not file for a training waiver within either sixteen weeks of her separation from employment or eights weeks from her certification of eligibility as required by the Trade Act,
Claimant appealed the denial of her training waiver request to the Division of Employment Security Appeals Tribunal on the grounds that the DWD improperly denied her TRA because the DWD mistakenly submitted her training waiver request under Petition 63052 rather than Petition 64643. Claimant maintained that if the DWD had properly processed her request under Petition 64643, last amended September 29, 2009, then the DWD would have deemed her training waiver request timely. An Administrative Law Judge heard her appeal on April 19, 2010 and May 28, 2010.
The ALJ determined that the United States Department of Labor certified Claimant to receive Trade Act benefits under the April 24, 2009 amendment to Petition 64643—not the September 29, 2009 amendment. The ALJ then used April 24, 2009 as the date from which to calculate Claimant's deadline for filing the training waiver request. Because Claimant's first contact with the DWD did not occur until October 2009, "well after the 16
Claimant appealed to the Commission, which adopted and affirmed the decision of the Appeals Tribunal. Claimant appeals.
On an appeal from a decision of the Labor and Industrial Relations Commission, we may modify, reverse, remand for rehearing, or set aside the decision of the Commission on the following grounds only: (1) the Commission acted without or in excess of its powers; (2) the decision was procured by fraud; (3) the facts found by the Commission do not support the award; or (4) there was not sufficient competent evidence in the record to warrant the making of the award. Section 288.210 RSMo (2000).
We defer to the Commission's findings of fact, but we review questions of law de novo. Schultz v. Div. of Employment Sec., 293 S.W.3d 454, 459 (Mo.App. E.D.2008). We will affirm the Commission's decision unless we find, upon a review of the whole record, that it is not supported by competent and substantial evidence or is unauthorized by law. Barlynn Enters. v. Foell, 223 S.W.3d 168, 170 (Mo.App. S.D.2007). Where, as here, the Commission affirms and adopts the findings of the Appeals Tribunal, we use those findings as the bases for reviewing the decision. See, e.g., Murphy v. Aaron's Auto. Products, 232 S.W.3d 616, 619 (Mo. App. S.D.2007).
In her sole point on appeal, Claimant alleges that the Commission erred in finding that she was ineligible for a training waiver under the Trade Act. More specifically, Claimant contends that the Commission should have applied equitable tolling to the deadlines set forth in the Trade Act because "state officials failed to properly notify [her] about her eligibility for benefits and she acted with due diligence in applying for benefits."
In response, the Division of Employment Security (Division) argues that Claimant failed to preserve her claim because she did not raise it before either the Appeals Tribunal or the Commission. Alternatively, the Division contends that it properly relied on United States Department of Labor guidelines implicitly precluding the application of equitable tolling to the deadline for filing a request for a training waiver under the Trade Act. Finally, the Division requests the court to remand the case to the Commission if the court concludes that equitable tolling applies to the deadline at issue.
As an initial matter, we address the Division's argument that Claimant failed to preserve the issue of the applicability of equitable tolling. The Division contends that Claimant argued at the Appeals Tribunal and Commission that the DWD processed her request for a training waiver under an incorrect Trade Act petition number, rather than arguing that the Commission failed to apply equitable tolling to extend the statutory deadline. Claimant counters that she raises the same issue here as before the ALJ and the
A claimant cannot litigate on appeal an issue that was appropriate for, but not addressed by, the Commission. St. John's Mercy Health Sys. v. Div. of Employment Sec., 273 S.W.3d 510, 516 (Mo. banc 2009). "This [c]ourt may only address issues that were determined by the Commission and may not consider issues not before the Commission." Perry v. Tiersma, 148 S.W.3d 833, 835 (Mo.App. S.D.2004).
The ALJ framed the issue before the Appeals Tribunal as follows: "The issue [in this case] is whether the claimant's request for Training Waiver was made within the time requirements." In her appeal to the Appeals Tribunal, Claimant asserted that she had timely filed her training waiver request but that the DWD had denied the request under the wrong Trade Act petition number. Here, Claimant argues that the Commission erred in failing to apply equitable tolling to the "deadlines set forth in the Act." Although we agree that Claimant is not challenging the propriety of the DWD's denial of her request under the April 24 certification, Claimant has consistently argued that her request for a training waiver should be considered timely. "The deputy, appeals tribunal, and commission had an obligation to apply all laws that pertain to the issue. . . ." Div. of Employment Sec. v. Simmons, 103 S.W.3d 910, 913 (Mo.App. W.D.2003). Therefore, we conclude that Claimant's appeal does not raise a new issue that was not before the Commission.
Claimant argues that the Commission should have applied equitable tolling to the deadline for obtaining a training waiver because the DWD failed to properly advise Claimant of her eligibility for TRA and Claimant exercised due diligence in seeking those benefits.
The Division contends that the Commission did not err when it failed to apply equitable tolling to the deadlines of the Trade Act because the United States Department of Labor, which interprets and administers the Trade Act, issued an interpretation of the Trade Act that precludes
Following briefing and argument in this case, the Division notified this court, by a letter dated October 20, 2011, that the United States Department of Labor issued, on October 19, 2011, TEGL 8-11, specifically addressing equitable tolling in the context of the identical issue before the court. The Division provided a copy of TEGL 8-11 as well as a copy of Attachment 1, titled: "Availability of Equitable Tolling of Deadlines for Workers Certified under Trade Adjustment Assistance (TAA) Certifications."
In TEGL 8-11, the United States Department of Labor interprets the Trade Act to permit agencies to apply equitable tolling to various deadlines contained in the Act, including the deadline for obtaining a training waiver as a condition for eligibility for TRA. TEGL 8-11 expressly directs all state agencies administering the Trade Act to "[t]ake appropriate action to apply equitable tolling in all determinations, redeterminations, and appeals on [Trade Act] deadlines issued on or after the date of this TEGL. . . ." TEGL 8-11 provides that equitable tolling should apply "in situations where it would be manifestly unfair to deny a worker TRA eligibility based on the worker's failure to meet the statutory deadline . . . [and where] the worker exercised due diligence in meeting [the Trade Act] benefit eligibility deadlines." As an example, the United States Department of Labor suggests that equitable tolling may apply where "a worker was not informed of the [statutory] deadline while receiving unemployment insurance and before the [statutory] deadline expired."
In addition to arguing that the Division is required to defer to the United States Department of Labor TEGLs, the Division also asks this court to follow cases concluding that equitable tolling may not be applied to extend deadlines under the Trade Act, such as Schultz v. Div. of Employment Sec., 293 S.W.3d 454 (Mo.App. E.D.2008), and reject those
In light of the United States Department of Labor's apparent reversal, or, at the very least, clarification, of its position on equitable tolling in the context of the Trade Act deadlines at issue here, we remand this case to the Commission for further findings of fact and conclusions of law on the issue of the propriety of the application of equitable tolling to Claimant's failure to request a training waiver by the statutory deadline.
The decision of the Commission is reversed and this matter is remanded for proceedings consistent with this opinion.
ROBERT M. CLAYTON III, J., and GEORGE W. DRAPER III, Sp.J., concur.
19 U.S.C. § 2291(a)(5)(A)(ii) (2006).