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Gary v Eaton Corp. 9.08

Section 28a


CITE AS: Gary v Eaton Corp, Kalamazoo Circuit Court, No. B98-3371-AE (January 4, 2001)

Appeal pending: No

Claimant: Stuart L. Gary
Employer: Eaton Corporation
Docket No. B1999-07363-RO1-153433W

CIRCUIT COURT HOLDING: A claimant must apply for preservation of credit weeks within the mandatory 3-year period set out in Section 28a(10). Claimant’s belief he would be returning to work and have any wage loss paid by employer does not excuse his failure to seek to preserve credit weeks within the 3-year period.

FACTS: In May 1989, claimant injured his right hand. In May 1993, he went on disability leave to have surgery. On November 1, 1993, his physician released him to return to work with restrictions, and suggested employer provide him with a new job because his past work fell outside those restrictions. The employer did not provide a new job to claimant but did not discharge him. In 1994, claimant filed suit against employer, which led to arbitration. Claimant’s employment ended February 15, 1999 by way of the arbitrator’s decision. From when claimant filed suit to the arbitration decision, claimant was on leave without pay but with benefits. Claimant filed for unemployment benefits 10 days after the arbitration decision as issued.

DECISION: Claimant is not entitled to preservation of credit weeks.

RATIONALE: Section 28a(4) provides specific time limitations as to when a claimant may seek to preserve work credits, and provides that “benefits shall not be payable . . . for any week that commences more than 156 weeks after the first week of the benefit year.” Section 28a(10) provides that a “request for preservation of credit weeks must be made within 3 years after the date the disability began.” The unemployment benefits the claimant sought were designed to remedy his situation in 1993. The claimant made a strategic decision not to apply for unemployment benefits because it might have weakened his lawsuit against his former employer. Having made that choice, he cannot obtain benefits several years after the deadline for preserving credit weeks.


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