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Lawrence v. North Dakota Workers Compensation Bureau3/23/2000
necessary for application of the correct legal standard for justification under N.D.C.C. § 65-05-08(7).
[ ] Section 65-05-08(7), N.D.C.C., provides, in relevant part :
No benefits may be paid for disability, the duration of which is less than five consecutive calendar days. If the period of disability is five consecutive calendar days' duration or longer, benefits must be paid for the period of disability provided that:
If the employee voluntarily limits income or refuses to accept employment suitable to the employee's capacity, offered to or procured for the employee, the employee is not entitled to any disability or vocational rehabilitation benefits during the limitation of income or refusal to accept employment unless the bureau determines the limitation or refusal is justified.
[ ] We have not previously considered when an injured worker is justified in refusing employment under N.D.C.C. § 65-05-08(7). In Fuhrman v. North Dakota Workers Comp. Bur., 1997 ND 191, 569 N.W.2d 269, we considered whether an injured worker had "good cause" under N.D.C.C. § 65-05.1-04(6), for failing to comply with a rehabilitation plan requiring attendance at a training course in Minneapolis. We applied a definition of good cause similar to that used in employment cases, see Esselman v. Job Service, 548 N.W.2d 400, 402 (N.D. 1996), Lambott v. Job Service, 498 N.W.2d 157, 159 (N.D. 1993), and concluded an injured worker has good cause for failing to attend a rehabilitation program if the worker has a reason that would cause a reasonably prudent person to refuse to attend the program under the same or similar circumstances. Fuhrman, at 8-9. See also Hoffman v. North Dakota Workers Comp. Bur., 1999 ND 66, 15, 592 N.W.2d 533 (applying objective, reasonable person standard to decide whether injured worker had good cause to refuse to attend rehabilitation program). In Fuhrman, at 12, we held the Bureau's finding the injured worker, a Bismarck resident, did not have good cause for failing to relocate to Minneapolis to attend a training program was not supported by a preponderance of the evidence. In Hoffman, at 15-21, a majority of this Court held, as a matter of law, the injured worker, a Jamestown resident, had good cause not to attend a rehabilitation training program in Minot when the Bureau wrongfully denied him a second domicile allowance.
[ ] In Pulver v. Dundee Cement Co., 515 N.W.2d 728, 730 (Mich. 1994), the Michigan Supreme Court considered an issue about an injured worker's residence vis-a-vis the situs of a job offer under statutory language precluding the worker from receiving further wage loss benefits if the worker refuses a bona fide offer of reasonable employment "without good and reasonable cause."
The court recognized there was no exclusive and exhaustive definition for "good and reasonable cause," but outlined the following framework for gauging an injured worker's refusal to accept an employment offer:
Those factors may include:
(1) the timing of the offer, (2) if the employee has moved, the reasons for moving, (3) the diligence of the employee in trying to return to work, (4) whether the employee has actually returned to work with some other employer and, (5) whether the effort, risk, sacrifice or expense is such that a reasonable person would not accept the offer. Pulver, at 735 [footnote omitted]. See also Thompson v. Claw Island Foods, 1998 ME 101, 18, 713 A.2d 316 (applying same framework under Maine's statutory provisions). The Pennsylvania Supreme Court also has recognized an injured worker's residence vis-a-vis the situs of a job offer is one factor in evaluating this type of issue. See Kachinsk
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