*1 We, noncompensable. there- credibility of wit- substance is sponsibility assess fore, conflicts in the evi- affirm the Bureau’s dismissal nesses and resolve compensation v. North Dakota Workers claim. dence. Stewart Smith’s workers Bureau, 174, 7, Compensation WALLE, reasoning conclude a
ibility. also determine the Bu
[¶ 16] We
findings support
reau’s
its conclusion that
system
methamphetamine
Smith’s
injury.
his frostbite
In Hust v.
caused
ND
Bu
Compensation
North Dakota Workers
LAWRENCE,
Fred
Claimant
reau,
unnecessary
it was
for us to decide
Appellee, v.
whether
the Bureau had the burden of
proving
impairment
a claimant’s
was a
of,
proximate cause
or a substantial con
NORTH DAKOTA WORKERS
to,
because,
injury
un
tributing factor
his
BUREAU,
COMPENSATION
standard,
der either
the Bureau’s decision
Appellant.
ND
supported
the record. 1998
true in this case. Warehouse, Inc., Respondent Jobbers methamphet- Dr. Bobbitt testified Appellee. causes constriction of the blood ves- amine No. flow, making sels and reduces blood some- susceptible one who takes it more to cold. of North Dakota. Supreme Court fingers Bobbitt also testified and toes are March particularly vulnerable in this situation. methamphetamine may remain Given hours, body up capsule
in the to 36 day injury Smith took the before his could affecting system have been his vascular on 8,1998, January flow to reducing blood fingers. Though temperatures were day, extreme that no other suf- Thus, reasoning fered from frostbite. reasonably mind could have determined weight meth- from evidence that amphetamine injury. caused Smith’s
IV. The Bureau’s determination that illegal methamphetamine use of caused injury supported by Smith’s frostbite evidence in the record. Under 01—02(ll)(b)(3), injury 65— illegal caused use of controlled
jointly agreed Lawrence would return to California October 1997 for treatment of injury. accepted The Bureau Law- rence’s claim for benefits.
[¶ 3] On November Dr. Wilfred *3 performed surgery Eastman back on Law- 15, 1998, January rence California. On Dr. Eastman released work Lawrence to sedentary job per day. at a for 4 hours January Floyd Naugle Dr. also re- Dietz, Haas, Dietz, Kathryn L. Little & sedentary leased Lawrence to work at a Bismarck, N.D., appellee. for claimant and job per day. for hours Special H. Malcolm At- Pippin, Assistant [¶ 4] Jobbers sent Lawrence a written General, Williston, N.D., torney appel- for offer, January modified dated lant. with that computerizing duties included Oliver, Rogneby, Kapsner Monte L. <& updating operating procedures records and Bismarck, N.D., appel- respondent for and at Jobbers’ Bismarck office: lee. Submitted on brief. days per We have work available 5 week, per day, 8 hours and the rate of MARING, Justice. pay per will be week at Jobbers $507.00 The North Dakota Workers Com- [¶ 1] Moving Storage & ND. pensation appealed from a district Your medical provider has indicated that court judgment reversing a Bureau order they believe that this position physi- is denying Fred disability Lawrence further cally appropriate you for this time. benefits. We hold the Bureau’s ex Your ability by your work as defined litigation consultation with outside physician has been reviewed and it is pending about a Administrative Law you that perform only understood are to Judge recommendation violated N.D.C.C. guidelines you duties within the will 65-01-16(8) and N.D.C.C. ch. 28-32. obtain assistance as needed for duties injured justified hold an We also worker is not within these recommendations. refusing a offer You that understand the duties outlined if reasonably prudent per- your above can be modified to fit work son would refuse the offer under the same ability by your as defined physician. or similar circumstances. We reverse the responsible notify You will also be .to judgment and remand with instructions to your immediate if supervisor you are rehearing. remand to the Bureau for experiencing any problems in the perfor- mance of your duties within restric- I tions. You are responsible notifying for August began Lawrence your supervisor immediate of any time working as an over-the-road truck driver off or modifications your work sched- with a Bismarck employer, based Jobbers ule. Your return to work program will Moving and Storage Company. When job duty you be considered a will Lawrence, Jobbers hired he had liv- been scheduled, attend them as or it will be ing in California since 1995. Lawrence deemed failure to up show for work. injury September sustained a back on unloading piano while in Illinois Lawrence refused Jobbers’ written offer, during the course of “I employment. noting accept his do not this Lawrence Sep- my returned to Bismarck on time this because doctor’s Nau- [sic] tember and after a gle only discussion & Eastman released me to 4work Jobbers, representatives with it per day.” was hrs represented by its outside coun- Lawrence second sent 6] Jobbers judge An law thereaf- sel. administrative job offer: written finding recommended decision ter issued a Moving Storage Co. under- Jobbers hourly reasonable “[i]t would be for your only has re- doctor stands expect employer his salaried per day of work you for hours leased in- expenses him for living to reimburse you willing pay is for currently, but working curred on a basis temporary while day, until it is hour work deemed away home. from his That is situation you per for work 8 appropriate hours here; accept [Lawrence’s] refusal to are day by your doing doctor. We pay- without some that the understanding remain- living expenses justified.” ment day each will be ing hours used deciding The ALJ Lawrence recommended physical therapy doctors visits and rejecting offers Jobbers’ by your care primary physi- scheduled *4 voluntarily had income and not limited his cian. 65-05-08(7). under N.D.C.C. you your to work with We want rejected Bureau rec- [¶ 9] The the ALJ’s proceed path down the of doctor as we denied fur- ommendation and Lawrence I recovery your injury. from As stated found disability ther benefits. The Bureau that original job offer I have in the well what beyond Jobbers’ offers went review, your we have again attached for required to employer reasonable would be per day 4-8 hours work available from for a transi- provide modified offering week rate of days per and are North law. The tional under Dakota per at Jobbers Mov- pay of week $507.00 greater of weight Bureau concluded the Bismarck, Storage ND. ing & Co. established Lawrence was evidence refused second offer Lawrence Jobbers’ offers, rejecting justified in Jobbers’ time.” I can’t travel at this “because his and was voluntarily he limited income made Lawrence a 7] Jobbers then [¶ ineligible further benefits. disability for offer: third written appealed 10] Lawrence to the district refusing that are you You stated supplement the certi- court and moved travel, you cannot offer because does include Bureau’s ex fied record to you this mean unable to travel on all are with liti- parte communications its outside I transportation. your believe means ALJ gation pending counsel about drive, only you cannot doctor stated The outside recommendation. Bureau’s are means of but there alternative travel responded that “in re- litigation counsel (i.e. ). bus, ... train etc If airplane, Bureau viewing findings, the [ALJ’s] of an your airplane concern the cost attorney matter with the discussed the ticket, you, be provided it will so that hearing” represented the Bureau at who path proceed we can all down allowed under and those discussions were recovery your injury. from 65-01-16(8). de- The court refused “it is stating Lawrence that offer supplement nied motion to Lawrence’s accept not feasible me to did, record, in this ruling “the Bureau N.D. this time.” case, permit- exactly legislature what it under 65-01- March ted to do” [¶ 8] On 16(8). reversed disability subsequently court Lawrence further bene- denied decision, fits, the Bureau’s voluntarily ruling he the Bureau’s finding had limited its outside parte by refusing accept income transitional communications ALJ litigation pending cause counsel about the employment good without under due violated Lawrence’s Lawrence re- recommendation ap- The court decided subsequent process rights. at a quested rehearing, and remedy was to reinstate propriate the Bureau was hearing, administrative ALJ’s recommendation to award Law- disability
rence
benefits.
hearings
chapter
28-32 to the
II
provisions
extent the
of that chapter
appeal,
[¶ 11] On
we review the
do not conflict with this section. The
decision,
Bureau’s
not the district court’s
may arrange
bureau
for the designa-
decision. Vernon v. North Dakota Work
tion of hearing officers to conduct re-
Bur.,
Comp.
ers
1999 ND
hearings
and issue recommended
§§
N.W.2d 139. Under N.D.C.C.
28-32-
conclusions,
findings,
orders.
28-32-21,
19 and
we affirm the Bureau’s
reviewing recommended findings, con-
decision unless its findings of fact are not
clusions,
orders,
the bureau
supported by a
preponderance
the evi
consult
repre-
with its
dence,
sup
its conclusions of law are not
senting it in the proceeding.
fact,
ported by
findings
its
decision is
its
Scott v. North Dakota Workers
supported by
law,
its conclusions of
Bur.,
decision is not
accordance with the
we considered an
involving
issue
the Bu-
or its decision violates the claimant’s con
reau’s ex
contacts with its outside
rights
deprives
stitutional
the claimant
pending
counsel about a
ALJ
Vernon,
hearing.
Ques
of a fair
*5
recommendation for a claim filed before
law, including
interpretation
tions of
the
31,
Scott,
¶¶8, 10,
July
1997. In
statute,
fully
are
appeal
reviewable on
Bureau’s outside counsel consulted with its
from a decision
the Bureau. Lee v.
rehabilitation,
director of claims and
ad-
Bur.,
North Dakota Workers Comp.
1998
vised the
¶
director the ALJ’s recommenda-
ND
tion should be
and drafted sever-
III
conclusions,
al versions of findings,
and
orders for the director to
All
review.
argues
[¶ 12] The Bureau
parte
those ex
contacts were without the
§
is not unconstitutional and
knowledge
participation
or
of the claimant
process.
does not violate due
attorney,
or his
and the claimant received
65-01-16(8), N.D.C.C.,
[¶ 13] Section
no notice or copies of the Bureau’s outside
was enacted
1997 for workers compen-
counsel’s proposed findings, conclusions
31, 1997,1
sation
July
claims filed after
see
prior
and orders
to issuance of the final
532,
7,§
1997 N.D.
ch.
Sess. Laws
and
¶
order.
Id. at 8.
provides:
The following procedures must be fol-
[¶ 15] We concluded the provisions of
benefits,
28-32-12.1(3)
lowed in
(5)
claims for
§
notwith- N.D.C.C.
standing
28-32-17(4)®
any provisions
(k)
§
to the contrary N.D.C.C.
then
chapter
28-32:
prohibited
effect2
the Bureau’s outside liti-
553,
2,
290,
1,
§
1.
In 1999 N.D. Sess. Laws ch.
In 1999 N.D. Sess. Laws ch.
legislature
language making
enacted
Legislature
further amended N.D.C.C.
28-
§ 65-01-16 "effective for all orders and deci-
32-12.1 to include a new subsection which
regardless
sions on all claims
of the date of
provides:
injury or the date the claim was filed.”
adjudicative
4.
proceeding
conduct-
hearing
ed
officer other than the
head,
agency
counsel for the administra-
case,
Legisla-
As relevant to this
the 1997
head,
agency
agency
tive
and the
without
ture amended those statutes to reflect opportunity
parties
notice and
for all
"adjudicat-
"contested cases” are now called
participate, may communicate and con-
proceedings.”
ed
277,
1997 N.D. Sess. Laws ch.
regarding
adjudica-
sult
Scott,
the status of the
221, ¶9
§§
17. See
settlement,
proceeding, discovery,
tive
proceedings
n.
[0 ]ne ¶ concept adversary in of an herent client, permit agency agency may head communicate ney and and the This regarding negotiation
head to make informed decisions.
and
af-
settlement
fact,
apply
after recom-
findings
subsection does
con-
ter
recommended
fact,
findings
mended
conclusions
law,
been
and orders have
clusions of
issued,
except
and
have been
orders
issued.
agency
counsel for
administrative
Here,
Lawrence’s claim was
filed the bureau
consult
coun-
§
after the effective date of N.D.C.C.
65-
representing
sel
it
in
proceeding.”
01-16(8),
and that
applies to his
in
Nothing
that language authorizes those
claim. In support of his motion
supple-
parte,
consultations to be ex
and N.D.C.C.
court,
ment the record in the district
Law-
§ 28-32-12.1 generally prohibits
parte
ex
argued
rence
in
“nothing
§
[N.D.C.C.
65-
agency
communications between an
01-16(8) ] allows the consultations to be ex persons allowed
participate
pro-
in the
parte
exempts
the bureau from ceedings.
introductory
language of
ch.
N.D.C.C.
28-32 certified
filing
record
§
says
65-01-16
following
“[t]he
requirement.” In denying Lawrence’s mo- procedures must be
in
followed
claims for
tion, the district court cited our
in
decision
benefits, notwithstanding any provisions to
Scott
effectively
construed N.D.C.C.
contrary
chapter 28-32.” The lan-
65-01-16(8)
parte
to authorize ex
con-
65-01-16(8)
guage
in N.D.C.C.
authoriz-
tacts between the Bureau and its outside
ing consultations
reviewing
pend-
when
counsel about a pending ALJ recommen-
ing
contrary
ALJ recommendation is not
Although
dation.
argues
the Bureau now
provisions
to the
in chapter
prohibit-
28-32
there is no claim it deviated from the
ing
parte
ex
communications. Under our
statutory
mandates
65-01-
construction,
rules of
we harmonize those
16(8)
28-32,
or N.D.C.C. ch.
the district
provisions to allow the Bureau to consult
effectively
court
construed N.D.C.C.
65- with its outside legal
reviewing
counsel in
01-16(8) to
parte
allow ex
contacts
pending
ALJ
long
recommendation as
situation, and
analysis begins
our
with the
those communications are
ex parte.
If
interpretation of that statute.
is construed to
permit
contacts between the Bu-
objective
[¶ 19] Our
primary
reau and
its outside
counsel in
construing statutes is to
leg
ascertain the
circumstances,
these
potential
due pro-
intent,
islature’s
and we look first at the
See,
cess violation
e.g.,
exists.
Camero v.
statute,
words
used
giving them
States,
United
179 Ct.Cl.
375 F.2d
their plain, ordinary,
commonly
under
(1967)
777, 780-81
and other authorities
stood meaning. Witcher v. North Dakota
Scott,
cited in
Bur.,
Workers
1999 ND.
N.W.2d 153. We construe statutes
Froysland v. North Dakota Workers Bur., (N.D.
Comp. 889 IV 1988). § See N.D.C.C. Having [¶ 21] concluded the Bu 65-01-16(8), [¶ Section 20] parte reau’s ex contacts violated N.D.C.C. N.D.C.C., says 65-01-16(8) § when “reviewing recom 28-32, and N.D.C.C. ch. we findings, conclusions, orders, mended consider appropriate remedy for this
261 If the days. period calendar Scott, consecutive ND case. consecutive calendar disability is five rec- of majority of Court a N.W.2d 28-32-12.1(6), must longer, now or benefits days’ duration ognized N.D.C.C. 28-32-12.1(7), disability pro- period ordi- of paid be at N.D.C.C. codified an requires disqualification vided that: narily who re- or officer head agency communications, parte improper ceives in- voluntarily limits employee If the there inappropriate remedy
but
accept employment
or refuses to
come
light
communications came to
because
capacity,
employee’s
to the
suitable
been
decision had
agency
the final
after
employ-
procured
or
for the
offered to
bag.
was out of
and the cat
issued
ee,
entitled to
is not
con-
parte
Bureau’s ex
We decided
rehabilitation
disability or vocational
system-
a
in that case demonstrated
tacts
of in-
during the limitation
benefits
the rec-
of the law because
disregard
ic
accept employment
come
refusal
institutional
widespread
ord established
the limi-
the bureau determines
unless
requirements
noncompliance
justified.
refusal is
tation or
im-
miscue or
single
rather
than a
considered
previously
have not
25] We
act,
proper
and we concluded
proper
justified in re
injured
an
worker is
when
of the ALJ’s
reinstatement
remedy was
§ 65-
under N.D.C.C.
fusing employment
¶¶
Scott,
20-
decision.
recommended
05-08(7).
In Fuhrman v. North Dakota
Bur.,
191, 569
Comp.
Workers
Here,
court decided
the district
whether
we considered
N.W.2d
contacts with out-
parte
Bureau’s ex
cause” under
injured
“good
worker had
sys-
a
established
side
65-05.1-04(6),
failing
and ordered
disregard of the law
temic
plan requiring
with a rehabilitation
comply
decision. The
of the ALJ’s
reinstatement
in Minne
training
at a
course
attendance
his-
legislative
relies on
primarily
good
applied a definition
apolis. We
65-01-16(8)
support
tory for N.D.C.C.
employment
that used in
cause similar to
contacts are
that these ex
position
Service,
cases,
v. Job
see Esselman
we have
Although
authorized
statute.
(N.D.1996),
v.
Lambott
N.W.2d
harmonized
(N.D.
Service,
N.W.2d
Job
contrary
ch. 28-32
a manner
1993),
injured
worker
and concluded
cir-
under these
position,
the Bureau’s
a
to attend
failing
cause for
good
has
cumstances,
the Bu-
persuaded
are not
we
if the worker has
program
rehabilitation
systemic
disre-
reau’s actions establish
reasonably pru
that would cause
reason
warranting reinstatement
the law
gard of
pro
attend the
to refuse to
person
dent
recommended decision.
of the ALJ’s
similar circum
the same or
gram under
argues he
Lawrence nevertheless
¶¶
Fuhrman,
also
8-9. See
stances.
disability
to reinstatement
is entitled
North Dakota Workers
Hoffman
Bur.,
*8
however,
conclude,
a remand
We
benefits.
¶66, 15,
592 N.W.2d
necessary
application
rehearing is
for
for a
person
reasonable
objective,
(applying
justifica-
for
the correct
standard
worker
injured
to decide whether
standard
65-05-08(7).
under N.D.C.C.
tion
rehabil
to attend
good
had
cause
refuse
N.D.C.C.,
65-05-08(7),
Fuhrman, at
Section
program).
[¶ 24]
itation
injured
part3:
finding
in relevant
provides,
the Bureau’s
we held
resident,
not have
worker,
did
a Bismarck
disability,
may
paid
be
No benefits
to Minne-
failing to relocate
cause for
good
than five
of which is less
the duration
770, 3,§
N.D.C.C.,
Laws
Sess.
ch.
65-05-08(7),
enacted in 1989 N.D.
was enacted
3. Section
formerly
N.D.C.C. 65-
codified at
and was
Sess. Laws
present
in 1997 N.D.
in its
form
05-10(2).
initially
language
was
ch.
1. Similar
apolis
program
to attend a training
evaluating
injured
justifi-
an
worker’s
supported by
preponderance
a
refusing
job
cation for
offer under
¶¶ 15-21,
Hoffman,
65-05-08(7).
evidence. In
a ma- N.D.C.C.
We conclude an
jority
held,
of this Court
as a matter of
injured
justified
job
worker is
in refusing a
injured worker,
a Jamestown resi-
offer if a reasonably prudent person would
dent,
good
had
cause not
attend a reha-
refuse the offer under the same or similar
bilitation training program in Minot when
issue,
In considering
circumstances.
this
wrongfully
the Bureau
denied him a sec- we also believe the
nonexclusive factors
ond domicile allowance.
Pulver are relevant for assessing whether
job
worker’s refusal of a
offer is
Co.,
Pulver Dundee Cement
under N.D.C.C.
(1994),
445 Mich.
Michigan
Supreme Court considered
In rejecting
the ALJ’s recommen-
injured
an issue about an
worker’s resi-
dation,
“by
the Bureau found
pro-
Jobbers
dence vis-a-vis
job
the situs of a
offer viding
wages,
[Lawrence] with full-time
statutory
language precluding the
work,
for part-time
the free
use of
com-
worker from receiving
wage
further
loss
vehicle,
pany
paid airfare from California
benefits if the worker refuses a
fide
bona
went
beyond
well
what
offer of
employment
reasonable
“without
reasonable employer
required
should be
good and reasonable cause.” The court
provide
employee
an
respect
to a
recognized there was no exclusive and ex-
modified transitional
offer” under
haustive
“good
definition for
and reason- North Dakota law. The Bureau’s decision
cause,”
able
but outlined
following
erroneously
only
focused
on the reason-
injured
framework for gauging an
work-
job offer,
ableness of the
rather 'than
accept
employment
er’s refusal to
an
offer:
reasonably
whether a
prudent person
(1)
Those
factors
include:
the tim- would have refused the offer under the
(2)
offer,
ing of the
if
employee
has
same or similar circumstances.
moved,
(3)
moving,
reasons for
[¶ 29] When Jobbers hired Lawrence as
diligence of the
trying to
an over-the-road
in August
trucker
(4)
work,
return to
whether the employ-
living
he had been
in California since 1995.
ee has actually returned to work with The
nature of Lawrence’s
him
required
and, (5)
some
employer
other
whether
throughout
travel
country. Wally
effort, risk,
expense
sacrifice or
is Keller,
general
Jobbers,
manager at
such that a
person
reasonable
would not
“jointly
testified it was
... agreed” that
accept the offer.
Lawrence would return to California for
Pulver, at 735 [footnote omitted]. See also
injury.
treatment of his
Lawrence testi-
Thompson
Foods,
v. Claw Island
1998 ME fied he had a sister and brother-in-law
(applying
[¶ We 27] definition involving stances economic or financial of “good cause” in Fuhrman and hardship would cause a reasonably pru- Hoffman
263 Indeed, 01-16(8) is not unreasonable. a rehabilitation not to attend person dent with is consistent home); interpretation Bureau’s Hoffman, away from far program (same), history, Hearing legislative clear see N.W.2d 533 592 1999 ND Industry, the House on H.B. 1270 Before fully did not parties Because [¶ 30] Business, Comm., 55th N.D. and Labor under the argument or marshal evidence (Feb. 3, 1997), and consistent Legis. Sess. whether Law- deciding relevant factors interpretation own ™th this Court’s conclude justified, we rence’s refusal v. Dakota Workers statute Scott North case is remedy appropriate ¶¶ 13-17, Bureau, 587 rehearing, fac- rehearing. On remand for added). (emphasis 153 N.W.2d include Lawrence’s consideration tors for California, The Bureau nevertheless asserts physical condi- [¶ 13] presence sacrifice, in this effort, risk, parte communications tion, the ex and whether improper, citing not offer for a case were accepting expense 65-01-16(8): were such job in Bismarck transitional would reasonably prudent person that a Rehearings must be conducted under the same similar refuse the offer to the hearings chapter 28-32 remand, Bureau offi- circumstances. On chapter provisions extent the communi- who have received cials with this section. do not conflict outside with the Bureau’s cations designa- for the may arrange bureau from this matter disqualified are counsel to conduct re- tion of officers 28-32-12.1(7). under N.D.C.C. hearings and issue recommended conclusions, and orders. findings, court reverse the district 31] We [¶ findings, con- recommended reviewing and remand with instructions judgment orders, clusions, the bureau con- proceedings to the Bureau for remand repre- with its consult opinion. with this sistent
senting proceeding. it in the WALLE, W. VANDE GERALD [¶ 32] by the was enacted 1997 This HUNKE, D.J., C.J., R. MAURICE applies only Assembly, Legislative
concur. July 1997. See claims filed after §§ N.D. Sess. Laws Ch. NEUMANN, A. J. WILLIAM in this case. clearly apply does not It I in the result. concur may nev- The Bureau asserts we 14] [¶ history legislative look to the ertheless J., HUNKE, D. R. [¶ 33] MAURICE to determine of N.D.C.C. J., KAPSNER, sitting place of existing clarify it was intended disqualified. intent legislature’s and demonstrates Justice, SANDSTROM, dissenting. parte contacts which to allow the ex disagree. occurred this case. We that the agree majority I with the 34] harmonized, I and would statutes can be acts legislature presumed It is agree with ma- them. I do harmonize perform purpose and does improp- the Bureau jority’s assertion that Beilke, 489 v. acts. State useless justification for analyzed the worker’s erly (N.D.1992); Bank State N.W.2d I, therefore, dis- job offer. refusal of the Edwards, v. Towner sent. (N.D.1992). Thus, presumed it is intended to enactment
legislative I Reed, existing law. Heck change Beilke, (N.D.1995); I harmonize N.W.2d Although would 592; Bank, 484 65-01-16, State N.W.2d N.W.2d at §§ 28-32-12.1 However, pur- the clear when at 282. 65- interpretation of N.D.C.C. Bureau’s *10 reasonably an amendment to a statute is to rather than whether a pose prudent of merely clarify existing policy person the would have refused the offer under expressed the amendment be the same or similar circumstances.” The however, un construing rights majority, only considered when focuses on one original der the statute. sentence context. The Bureau’s out of Effertz Fact, Compensation Findings North Dakota Workers of Conclusions of Law and (N.D. Bureau, specifically Final states: “The Bu- Order 1994). adopts portion reau that of the Adminis- Judge’s trative Law rationale which sets principle allowing [¶ 16] The consider- forth that the question to be answered subsequent clarifying ation of a amend- this case is whether the Claimant was apply ment does not under the facts in in refusing the various offers Legislature this case. The 1997 did not made him by employer, the and whether existing amend an statute with the ex- voluntarily by he limited his income declin- press clarifying intent of that statute. ing said offers.” The deci- Bureau’s Here, legislature enacted a new stat- sion taken as a whole majority’s belies the ute in a different title Century characterization and appropri- reflects the existing The Code. statute remains ate on focus the worker: original form. Under these circum- stances, the 1997 enactment is not a having The evidence of record been amendment,” “clarifying but is a new appraised by considered and the Admin- enactment attempts which to carve out Judge, istrative Law and the Adminis- exception general to the rule Judge having trative Law issued his 28-82-12.1(3). N.D.C.C. Findings Recommended of Fact and amendment, 22, 1998, Prior to the 1997 Conclusions of Law on October clearly governed and the by having carefully Bureau was re- general transcript rule viewed the of the administra- 28-32- 12.1(3), tive prohibited place August which which took on part contacts in this case. The 1997 and the exhibits made a Legisla- hearing, ture created a new the record at that Code, Compensation Workers title intended to allow the Bureau to consult SUMMARY OF EVIDENCE attorneys reviewing with its when adopts The Bureau the Administrative
ALJ’s recommended decision. Howev- Judge’s summary Law of the evidence er, all agencies subject other remain following with the clarifications and/or proscriptions in N.D.C.C. 28-32- additions: 12.1, which remains in effect. Under circumstances, January these The 1998 medical note 1997 enactment (Exhibit amendment, Naugle’s made Dr. clarifying rep- is not a but office 49) Naugle’s resents a clear reiterated Dr. change “opinion” intended C— law. Accordingly, regarding we do not consider the Claimant’s release to abilities; work legislative 1997 enactment or its his- the Administrative Law tory Judge’s summary page when construing stating the Bureau’s obli- gations Naugle simply Dr. 28-32-12.1 “made aware” of prior the modified to the effective date of is herein clarified (Footnote omitted). corrected; July 2. On or about
II Jobbers; Claimant was hired within thereafter, majority says at 28: “The days 36] two the Claimant had Dakota, erroneously only Bureau’s decision focused flown to North offer, 30,1997; on the July reasonableness of the start work on *11 absolutely presented Sep- 9.The Claimant 1997 and August 3. Between to the Bureau to proof no evidence or injury, the the date of tember allegations that he can- substantiate his California on only returned to Claimant financially afford to return to Bis- occasion, girlfriend to his then pick one job the transitional of- accept marck to up; fer. the Bureau issu- prior At no time to 4. In- 1998 Notice of February
ing RATIONALE the Benefits did to Discontinue tention Bu- to either the allege ever Claimant that of the adopts portion The Bureau reau, that he could not employer, the or rationale Judge’s Administrative Law to return to Bismarck financially afford to be question sets forth that the which job modified accept the transitional to in this case is whether answered offer; job written dec- separate in three in refusing Claimant was Jobbers, to provided that he linations job made to him various offers allege he was not once did the Claimant voluntarily and whether he employer, Bismarck; to financially unable to return by declining limited his income said turned the the time the Claimant By offers. job offer down on third modified adopts por- The Bureau further that (Exhibit 54), February about C— tion of the ALJ’s rationale that would was aware that Jobbers Claimant argument regarding “person- Claimant’s for company him with a vehicle provide merit, portion al vehicle” is without that use, only need to work his that he would the Claimant would have which states (four day), per a week hours 20 hours in- providers to medical greater access a full-time paid and that he would be as cluding physical therapy Bismarck week). addition, ($507 per wage he to the remote area which opposed an ad- requested never while Claimant lives, that portion that which states Jobbers, well aware vance from he was at- expected should be the Claimant advances past and had received the modified offer of Jobbers. tempt that and was also aware from Jobbers rejects that specifically willing fly the Claimant Jobbers “Rationale” that portion of the ALJ’s expense; at their own accept refusal to states “Claimant’s to work in Despite being released pay- some without January of the Claimant has never justified.” living expenses ment of since his release date ever time any city, sought any employment, OF FACT FINDINGS States; anywhere the United of Fact Findings Recommended by the Ad- facility 7. The referenced hereby adopted part 7 are as 6 and Judge page 11 of his ministrative Law Fact; Findings of the Bureau’s Kathy which “Summary of Evidence” a full kitch- Dewald testified to included of Recommended The first sentence Claimant; hereby Finding enette for the use of Fact I is likewise Bureau’s Find- adopted part absolutely presented 8. The Claimant Fact; ings of of,any fixed to the Bureau no evidence Fact 4 is Finding as, Recommended example, a home expenses, such Naugle re- that Dr. modified to reflect monthly pursuant rent mortgage or hours to work four lease, leased the Claimant would have which he contractual weeks, six increasing to day he for four incur in had continued to California weeks, and then day for two per mod- hours accept returned to Bismarck thereafter; per day hours offer; eight ified (20 week) per day per of Fact hours hours at a Finding Recommended 8 is Bureau; wage, per full-time week. The em- adopted by to the con- $507 personal offered the trary, greater weight ployer of the evidence Claimant *12 vehicle, justi- company use of a and offered to shows that the Claimant was offer, rejecting employer’s job pay the Claimant’s airfare to return to fied justification, lack Bismarck. and because of his voluntarily he limited his income and requirement, 5.There exists no uneligible disability remains [sic] law, requiring employ- North Dakota during period of his continu- benefits pay living er to “meal and Claimant’s accept employment. ation or refusal to expenses” good in order to validate a employer, by providing The job faith modified transitional offer. wages, part- Claimant with full-time work, company time the free use of a ORDER
vehicle, paid airfare from California to 1. The Bureau’s Amended Order dated beyond any went well what 7,1998, May which clarifies reference employer required reasonable should be and includes the Bureau’s Order provide employee respect to a March is affirmed all re- pursuant modified transitional spects. to North Dakota law.
The Bureau’s order as a whole reflects a CONCLUSIONS OF LAW proper focus on the worker.
1. Recommended
Conclusion of Law
[¶ 37] Whether an action is
is
hereby adopted
Bu-
part
is
ordinarily question
of fact:
Law;
reau’s
Recom-
Conclusions
Ordinarily, justification is an issue of
of Law 2
mended Conclusions
and 3 are
Ricks],
Kjesbo
fact.
[v.
N.W.2d
specifically
adopted by
the Bureau.
[585,]
(Minn.1994) (citing
[
]
Bennett
2. Section
of the North
Co.,
Broadcasting
v.
Minn.
Storz
Century
provides
Dakota
Code
that:
(1965)).
134 N.W.2d
employee voluntarily
“If the
in-
limits
justification
proving
test for
is what is
accept employment
come or refuses to
reasonable conduct under all the circum-
employee’s capacity,
suitable to the
stances
case. Id.
procured
employ-
offered to or
for the
Co.,
Fankhanel v. M & H
1997 ND
Constr.
ee,
is not entitled to
¶ 10,
N.W.2d
See also CAP
disability or vocational rehabilitation
¶¶
Cameron,
v.
Partners
1999 ND
10-
during the
in-
benefits
limitation of
309;
599 N.W.2d
Greenwood v. Green
accept employment
come or refusal to
wood,
317;
unless the bureau
limi-
determines the
Competen
Larsen Commission on Med.
justified.”
tation or refusal is
193, ¶32,
cy, 1998 ND
3. Pursuant to North Dakota it is The Bureau made the appropriate analy for the Bureau to determine whether the sis. accept employment refusal to suitable to employee’s capacity justified. Un- Ill der the facts and circumstances of this I38] would reverse the district court case, the Bureau does not find that the reinstate the Bureau’s order. justified in refusing Claimant was Dale V. Sandstrom offer made Jobbers.
4. The modified offer was within physical the Claimant’s restrictions as ability well as his to learn. The initially sedentary entail work at four