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Lawrence v. North Dakota Workers Compensation Bureau3/23/2000
s we proceed down the path of recovery from your injury. As I stated in the original job offer that I have attached again for your review, we have work available from 4-8 hours per day 5 days per week and are offering a rate of pay of $507.00 per week at Jobbers Moving & Storage Co. in Bismarck, ND. Lawrence refused Jobbers' second offer "because I can't travel at this time."
[ ] Jobbers then made Lawrence a third written offer:
You stated that you are refusing the job offer because you cannot travel, does this mean you are unable to travel on all means of transportation. I believe your doctor only stated that you cannot drive, but there are alternative means of travel (i.e. bus, train airplane, etc...). If your concern is the cost of an airplane ticket, it will be provided for you, so that we can all proceed down the path of recovery from your injury .
Lawrence refused that offer stating "it is not feasible for me to accept a job offer in Bismarck, N.D. at this time."
[ ] On March 10, 1998, the Bureau denied Lawrence further disability benefits, finding he had voluntarily limited his income by refusing to accept transitional employment without good cause under N.D.C.C. § 65- 05-08(7). Lawrence requested a rehearing, and at a subsequent administrative hearing, the Bureau was represented by its outside litigation counsel. An administrative law judge thereafter issued a recommended decision finding " t would be reasonable for an hourly or salaried employee to expect his employer to reimburse him for living expenses incurred while working on a temporary basis away from his home. That is the situation here; and [Lawrence's] refusal to accept the job without some provision for payment of his living expenses is justified." The ALJ recommended deciding Lawrence was justified in rejecting Jobbers' offers and had not voluntarily limited his income under N.D.C.C. § 65-05-08(7).
[ ] The Bureau rejected the ALJ's recommendation and denied Lawrence further disability benefits. The Bureau found Jobbers' offers went well beyond what any reasonable employer would be required to provide an employee for a modified transitional job under North Dakota law. The Bureau concluded the greater weight of the evidence established Lawrence was not justified in rejecting Jobbers' offers, and he voluntarily limited his income and was ineligible for further disability benefits.
[ ] Lawrence appealed to the district court and moved to supplement the certified record to include the Bureau's ex parte communications with its outside litigation counsel about the pending ALJ recommendation. The Bureau's outside litigation counsel responded that "in reviewing the [ALJ's] findings, the Bureau discussed the matter with the attorney who represented the Bureau at hearing" and those discussions were allowed under N.D.C.C. § 65-01-16(8). The court denied Lawrence's motion to supplement the record, ruling "the Bureau did, in this case, exactly what the legislature permitted it to do" under N.D.C.C. § 65-01-16(8). The court subsequently reversed the Bureau's decision, ruling the Bureau's ex parte communications with its outside litigation counsel about the pending ALJ recommendation violated Lawrence's due process rights. The court decided the appropriate remedy was to reinstate the ALJ's recommendation to award Lawrence disability benefits.
II.
[ ] On appeal, we review the Bureau's decision, not the district court's decision. Vernon v. North Dakota Workers Comp. Bur., 1999 ND 153, 8, 598 N.W.2d 139. Under N.D.C.C. §§ 28-32-19 and 28-32-21, we affirm the Bureau's decision unless its findings of fact are not supported by a preponderance of the evidence,
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