FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:

ROBERT A. HICKS GREGORY F. ZOELLER

Macey Swanson and Allman Attorney General of Indiana

Indianapolis, Indiana

STEPHANIE ROTHENBERG

Deputy Attorney General

 Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

KEVIN PERRY, )

)

Appellant, )

)

vs. ) No. 93A02-1208-EX-649

)

UNEMPLOYMENT INSURANCE )

REVIEW BOARD OF THE INDIANA )

DEPARTMENT OF WORKFORCE )

DEVELOPMENT and )

)

INDIANA DEPARTMENT OF WORKFORCE )

DEVELOPMENT UI CLAIMS )

ADJUDICATION CENTER, )

)

Appellees. )

APPEAL FROM REVIEW BOARD OF THE

INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT

Case No. 12-R-02226 (12-03692)

April 8, 2013

OPINION - FOR PUBLICATION

NAJAM, Judge
STATEMENT OF THE CASE

Kevin Perry1appeals the order of the Review Board (“Review Board”) of the 

Indiana Department of Workforce Development, affirming the findings and conclusions 

of the Administrative Law Judge (“ALJ”) and terminating Perry from the Trade 

Adjustment Assistance (“TAA”) training program. Perry presents three issues for 

review, which we consolidate into a single issue, namely, whether the Review Board’s 

decision affirming the termination of Perry’s participation in the TAA training program is 

erroneous. 

We affirm.

FACTS AND PROCEDURAL HISTORY

The relevant facts as found by the ALJ and adopted by the Review Board are as 

follows:

FINDINGS OF FACT: The Administrative Law Judge makes the 

following findings of fact: The Claimant worked for Columbus 

Components. The Claimant separated from the job on June 30, 2009. On 

September 1, 2009, the Department of Labor certified workers for federal 

benefits in the form of Trade Adjustment Assistance (TAA) and Trade 

Readjustment Allowance (TRA) in certification #70779. Workers were 

potentially eligible for job search allowance, relocation allowance, training 

benefits, and an income support in the form of TRA.

The Claimant submitted an application and the Dislocated Worker Unit[2]

subsequently approved [Perry]’s application to participate in the TAA 

program. The training program [that Perry] participated in was the 

Accounting program within the Accounting and Business Administration 

Department at Ivy Tech Community College. [Perry] attended courses at 

 

1

 Although the parties used Perry’s initials in their briefs, the parties used full names in the 

administrative proceedings below. And there is no evidence in the record that any party to this appeal 

made an “affirmative request pursuant to Administrative Rule 9(G)(1.2)” to exclude from public access 

the identities and information confidential under Indiana Code Section 22-4-19-6 and the rule. Recker v. 

Review Board, 958 N.E.2d 1136, 1138 n.4 (Ind. 2011). Thus, we use the parties’ names. 

2

 The Dislocated Worker Unit is the state agency administering the TAA program. 
3

the Columbus, IN campus that is nineteen (19) miles from [Perry]’s home. 

The start date of the training was May 24, 2010[,] and scheduled to end on 

December 21, 2012. The approved training application makes no mention 

of [Perry]’s ability to take online courses. [Perry] also signed a Participant 

Agreement. Part five (5) of the agreement obligates [Perry] not to deviate 

from the program or curriculum without the written consent of any 

WorkOne representative.

On November 7, 2011, [Perry] requested, through his assigned Case 

Worker, Nancy Steinkamp, a modification in the training program. [Perry] 

requested to attend all courses online during the Spring 2012, Summer 

2012, and Fall 2012 semesters. The Dislocated Worker Unit handles 

modification requests on a case-by-case basis. In making its decision, the 

Dislocated Worker Unit defers [to] and considers the University’s opinion 

on whether a claimant who applies for such modification will be successful 

in completing the program.

Marian Canada chairs the Accounting and Business Administration 

department. On November 9, 2011, Ms. Steinkamp emailed Ms. Canada to 

obtain Ms. Canada’s opinion on whether [Perry] could be successful with 

online class attendance. Ms. Canada did not feel comfortable agreeing to 

allow [Perry] to take classes online.

Prior to [Perry] and Ms. Steinkamp submitting the modification request, 

[Perry] registered for the spring 2012 semester with all online courses. Ms. 

Steinkamp informed [Perry] on October 25, 2011[,] that [he] could not 

register for online classes until the Dislocated Worker Unit made a final 

decision on the request. However, [Perry] did not change the courses. On 

January 25, 2012, the Department issued a warning letter informing [Perry] 

that his TAA benefits were at risk and under review. The letter informed 

[Perry] that [he] modified the training plan without authorization and that 

any non-approved deviation from the original plan may place Trade-related 

benefits at risk. By this time, the class offerings for the Spring Semester 

2012 were filling up at the Columbus campus. Course offerings were 

available at the locations greater than fifty (50) miles from [Perry]’s home. 

[Perry] could have enrolled in those courses at other campuses and apply 

for travel assistance to cover associated costs to travel to various campuses. 

However, [he] remained enrolled in the online courses.

The Department issued a Request for TAA Exit on February 21, 2012. The 

Department exited [Perry] from the TAA program for deviating from the 

approved training plan in violation of the criteria set forth in 20 CFR 617.

CONLCUSIONS OF LAW: This case is not about whether the Department 

and the Dislocated Worker Unit allows funding for [a] TAA participant 
4

who choose[s] to complete the training program through online education. 

The Dept. of Labor Training and Employment Guidance Letter (TEGL) 09-

05 provides:

Under the TAA program, the Department [of Labor] has 

determined that distance learning may be considered 

“classroom training” when the degree of certificate received 

is equivalent to what would have been received if the training 

had been conducted on campus. This interpretation expands 

the types of approvable classroom training to include distance 

learning, where a participant completes all or part of an 

educational or vocational program in a location far away from 

the institution hosting the training program. For distance 

learning, the final degree or certificate conferred must be 

equivalent in the content and standard of achievement to the 

same program completed on campus or at an institutional 

training location. When the above condition is met, the 

Department will recognize that the training is of the type that 

normally takes place in an interactive classroom setting; 

therefore, it satisfies the requirement of the regulations and 

statutes. This is a new standard that replaces the four 

conditions in TEGL 7-00.

In addition, in order for distance learning to be approved, all 

criteria for training approval found at 20 DFR 617.22 must be 

met in the same way as in any other training program.

(Emphasis added). TEGL 0905, December 12, 2005.

The issue in this case is whether [Perry] is eligible to continue to participate 

in the TAA program after a modification request was submitted and 

subsequently denied by the Dislocated Worker Unit, and [Perry] deviated 

from the approved training plan. 

Eligibility for Federal Trade Adjustment Assistance (TAA) funding is 

governed by 20 C.F.R. § 617.22. 20 C.F.R. § 617.22 confers discretion to 

the state agency to determine how the program will be administered. 

[Perry] signed a Participant Agreement form issued by the Department 

agreeing to not deviate from the program or curriculum without the written 

consent of any WorkOne representative. The participant agreement is clear 

that failure to fully participate as outlined in the participant agreement 

might result in the loss of benefits or repayment of the benefits received. 

[Perry] did not receive permission to take all online courses. Further, Ms. 

Steinkamp specifically informed [Perry that] he was to wait to register for 

online courses until after the Dislocated Worker Unit approved [Perry]’s 
5

modification request. In fact, the Department denied the request, and 

[Perry] failed to make the necessary changes to stay in compliance with the 

original training plan. 

Accordingly, the Department properly exited [Perry] from the training 

program due to [his] unauthorized modification to the training program and 

failing to meet the criteria contained in 20 CFR § 617.22. 

Appellant’s App. at 1-3 (some emphasis in original, citations omitted). Perry now 

appeals. 

DISCUSSION AND DECISION

“Reviews of trade adjustment assistance determinations are ‘subject to review in 

the same manner and to the same extent as determinations and redeterminations under the 

applicable State law, and only in that manner and to that extent.’” R.D. v. Review Bd. of 

Ind. Dep’t of Workforce Dev., 941 N.E.2d 1063, 1067 (Ind. 2010) (quoting 20 C.F.R. § 

617.51(a)). “In other words, a denial of training benefits is reviewable in state court as if 

it had been a denial of conventional unemployment benefits.” Id. (citing 19 U.S.C. § 

2311(d) (1988)). Our supreme court has explained the standard of review in conventional 

unemployment benefit cases:

The Indiana Unemployment Compensation Act provides that “[a]ny 

decision of the review board shall be conclusive and binding as to all 

questions of fact.” However, the statute also includes explicit provision for 

judicial review in language virtually identical to that found in provisions for 

review of other administrative agency actions. Indiana Code § 22-4-17-

12(f) provides that when the Board’s decision is challenged as contrary to 

law, the reviewing court is limited to a two part inquiry into: (1) “the 

sufficiency of the facts found to sustain the decision”; and (2) “the 

sufficiency of the evidence to sustain the findings of facts.” Under this 

standard courts are called upon to review (1) determinations of specific or 

“basic” underlying facts, (2) conclusions or inferences from those facts, 

sometimes called “ultimate facts,” and (3) conclusions of law. Courts 

uniformly recognize that propositions of law, such as the construction of 

the statute, are for the court to determine. . . .
6

Review of the Board’s findings of basic fact are subject to a 

“substantial evidence” standard of review. In this analysis the appellate 

court neither reweighs the evidence nor assesses the credibility of witnesses 

and considers only the evidence most favorable to the Board’s findings.

The Board’s conclusions as to ultimate facts involve an inference or 

deduction based on the findings of basic fact. These questions of ultimate 

fact are sometimes described as “questions of law.” They are, however, 

more appropriately characterized as mixed questions of law and fact. As 

such, they are typically reviewed to ensure that the Board’s inference is 

“reasonable” or “reasonable in light of [the Board’s] findings.”

Tiller v. Review Bd. of the Ind. Dep’t of Workforce Dev., 974 N.E.2d 478, 481 (Ind. Ct. 

App. 2012) (quoting McClain v. Review Bd. of the Ind. Dep’t of Workforce Dev., 693 

N.E.2d 1314, 1316-17 (Ind. 1998) (citations omitted; alterations original)).

Perry contends that the Review Board erred when it affirmed the ALJ’s findings 

and conclusions regarding his termination from the TAA training program. The facts are 

not in dispute. Perry was approved for the TAA training program and executed a 

participant agreement. The TAA program was administered through the Indiana 

Department of Workforce Development (“DWD”) and the Columbus WorkOne office. 

Perry was approved to obtain an “Associate of Applied Science” degree from Ivy Tech, 

specifically in “Accounting.” Exhibits at 41A. The Participant Agreement provides, in 

relevant part:

The above training program [of “31 weeks + WP week”] has been 

approved, and a contract is being executed on your behalf with the training 

provider. As the beneficiary of this agreement and contract, you agree to 

the following:

1. I agree to undertake this program in good faith with the intention of 

successfully completing the specified training program.

* * *

4. I agree to meet with my local WorkOne Staff monthly during school to 

report progress and/or difficulties. I agree to provide a schedule during the 
7

first week of each semester and a grade report within two weeks of the 

completion of each semester.

5. I agree not to deviate from the program or curriculum without the written 

consent of any WorkOne representative. I am not permitted to drop classes. 

I must be enrolled as a full[-]time student.

* * *

8. I have received a copy of the student handbook and [Trade Readjustment 

Allowance] benefit rights overview and agree to comply with all program 

rules as outlined.

Exh. at 42. Perry was also given a TAA Student Handbook (“Handbook”). The 

Handbook distinguished classroom training from employer-based training. With regard 

to Classroom training, which “may include Remedial Training[,]” Exh. at 89, the 

Handbook provides, in relevant part:

Classroom Training

Classroom training is instructor[-]led training. Approved Classroom 

training includes the costs of tuition, course fees, required books and 

supplies, and other items/services mandated/itemized by the training 

institution for all/any student (not just your instructor). . . . 

Distance (Learning) Training

The U.S. Department of Labor (USDOL) permits distance learning 

(e.g. on-line) when the degree or certificate received is equivalent to 

traditional classroom training.

When considering Distance (Learning) Training, as an option, keep 

in mind your responsibility to coordinate with your distance learning 

providers and your WorkOne Counselor to ensure that all parties 

understand the specific requirements or milestones of the distance learning 

program with respect to “attendance” and grading—including maintaining 

full-time status (when mandated), monthly reporting and validation of 

plan’s completion date. Failure to do so may place all related benefits at 

risk.

Exh. at 89-90. 
8

The ALJ found that Perry’s WorkOne Case Manager, Steinkamp, had informed 

him on October 25, 2012, that he could not register for online courses until after he had 

filed a request to modify his training plan and he had received approval for that 

modification request. However, at that time, Perry had already registered for online 

courses for the Spring semester of 2012. And he did not change his registration to 

classroom courses after talking with Steinkamp in October. On January 25, 2012, the 

Department sent a letter to Perry, notifying him that his TAA benefits were “at-risk and 

under review” because, as he had been informed by telephone, he had, “without 

authorization, . . . modified [his] training plan.” Exh. at 45. Classroom courses on 

campuses greater than fifty miles from Perry’s home were still available, and Perry could 

have applied for travel assistance to cover travel costs, but he remained enrolled in the 

online courses. On February 21, 2012, the Department issued a Request for TAA Exit on 

the ground that Perry had “[m]odified [his] program without authorization” by enrolling 

in online courses without prior authorization. Exh. at 76. The evidence in the record 

supports these findings, and the findings support the determination that Perry modified 

his training program without prior authorization and that such was a proper basis for 

termination from the TAA program. 

Perry disputes the conclusion that his enrollment in online training courses 

constituted a modification of his training plan so as to require prior authorization. In 
9

support he cites Training and Employment Guidance Letter (“TEGL”) 9-05.3 That 

directive, issued in 2005 by the Department of Labor, provides in part:

Under the TAA program, the Department [of Labor] has 

determined that distance learning may be considered 

“classroom training” when the degree of certificate received 

is equivalent to what would have been received if the training 

had been conducted on campus. This interpretation expands 

the types of approvable classroom training to include distance 

learning, where a participant completes all or part of an 

educational or vocational program in a location far away from 

the institution hosting the training program. For distance 

learning, the final degree or certificate conferred must be 

equivalent in the content and standard of achievement to the 

same program completed on campus or at an institutional 

training location. When the above condition is met, the 

Department will recognize that the training is of the type that 

normally takes place in an interactive classroom setting; 

therefore, it satisfies the requirement of the regulations and 

statutes. This is a new standard that replaces the four 

conditions in TEGL 7-00.

In addition, in order for distance learning to be approved, all 

criteria for training approval found at 20 CFR 617.22 must be 

met in the same way as in any other training program.

Appellant’s App. at 2 (citing TEGL 9-05) (emphasis in original); see also

http://wdr.doleta.gov/directives/attach/TEGL09-05.pdf (last visited March 19, 2013).

The directive issued by the Department of Labor in TEGL 09-05 provides that 

online instruction may be considered classroom training. However, the language in 

TEGL 09-05 is in terms of “distance learning, where a participant completes all or part of 

an educational or vocational program in a location far away from the institution hosting 

the training program.” Appellant’s App. at 2 (citing TEGL 9-05) (emphasis in original); 

 

3

 In its brief, the Review Board bases its argument in part on TEGL 07-00. That directive was 

rescinded and replaced by TEGL 09-05. See http://wdr.doleta.gov/directives/attach/TEGL09-05.pdf (last 

visited March 19, 2013).
10

see also http://wdr.doleta.gov/directives/attach/TEGL09-05.pdf (last visited March 19, 

2013). Here, there is evidence that Perry could have participated in interactive classroom 

training within an easy distance from his home had he timely registered for such classes. 

And even after he had been notified that his TAA benefits were at risk, classroom courses 

were still available within a reasonable distance from his home, but Perry maintained his 

enrollment in the online courses. As noted by the ALJ and affirmed by the Review 

Board, the issue presented is not whether online coursework is permissible under certain 

circumstances in the TAA program. Rather, the issue is “whether Perry was eligible to 

continue to participate in the TAA program after a modification request was submitted 

and subsequently denied by the Dislocated Worker Unit and [Perry had] deviated from 

the approved training plan.” Appellant’s App. at 2. Here, the evidence supports the 

findings, and the findings support the conclusion, that Perry deviated from his approved 

training program without prior authorization. Thus, we cannot say that the Review Board 

erred when it affirmed his termination from the TAA program.

Perry also contends that the DWD erred when it denied his request to deviate from 

his approved TAA training program. But, as explained above, Perry modified his 

training plan without prior authorization and made no attempt to revise his registration to 

be in compliance with the approved plan even after Steinkamp advised him to do so well 

before the semester started. On these facts, and as explained above, we cannot say that 

the Department of Workforce Development erred when it denied his modification 

request.

Affirmed. 

FRIEDLANDER, J., and BRADFORD, J., concur.