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Lawrence v. North Dakota Workers Compensation Bureau3/23/2000
i v. Workmen's Comp. Appeal Bd., 532 A.2d 374, 379 (Pa. 1987) (stating injured employee's place of residence is a relevant consideration in determining whether an offer is actually available to the employee).
[ ] We apply the definition of "good cause" in Fuhrman and Hoffman for evaluating an injured worker's justification for refusing a job offer under N.D.C.C. § 65-05-08(7). We conclude an injured worker is justified in refusing a job offer if a reasonably prudent person would refuse the offer under the same or similar circumstances. In considering this issue, we also believe the nonexclusive factors in Pulver are relevant for assessing whether a worker's refusal of a job offer is justified under N.D.C.C. § 65-05-08(7).
[ ] In rejecting the ALJ's recommendation, the Bureau found Jobbers "by providing [Lawrence] with full-time wages, for part-time work, the free use of a company vehicle, paid airfare from California to Bismarck, went well beyond what any reasonable employer should be required to provide an employee with respect to a modified transitional job offer" under North Dakota law. The Bureau's decision erroneously focused only on the reasonableness of the job offer, rather than whether a reasonably prudent person would have refused the offer under the same or similar circumstances.
[ ] When Jobbers hired Lawrence as an over-the-road trucker in August 1997, he had been living in California since 1995. The nature of Lawrence's job required him to travel throughout the country. Wally Keller, the general manager at Jobbers, testified it was "jointly . . . agreed" that Lawrence would return to California for treatment of his injury . Lawrence testified he had a sister and brother-in-law living in the area in California. There are obvious logistical and expense issues associated with moving from California to Bismarck to accept a transitional job . The reason for Lawrence's physical presence in California with Jobbers' joint agreement, coupled with the obvious logistics of a move and his physical condition support an inference that Lawrence's refusal of the transitional job offer in Bismarck was justified. See Fuhrman, 1997 ND 191, 10, 569 N.W.2d 269 (stating numerous circumstances involving economic or financial hardship would cause a reasonably prudent person not to attend a rehabilitation program far away from home); Hoffman, 1999 ND 66, 20, 592 N.W.2d 533 (same).
[ ] Because the parties did not fully marshal evidence or argument under the relevant factors for deciding whether Lawrence's refusal was justified, we conclude the appropriate remedy in this case is a remand for rehearing. On rehearing, factors for consideration include Lawrence's presence in California, his physical condition, and whether the effort, risk, sacrifice, and expense of accepting the offer for a transitional job in Bismarck were such that a reasonably prudent person would refuse the offer under the same or similar circumstances. On remand, Bureau officials who have received ex parte communications with the Bureau's outside litigation counsel are disqualified from this matter under N.D.C.C. § 28-32-12.1(7).
[ ] We reverse the district court judgment and remand with instructions to remand to the Bureau for proceedings consistent with this opinion.
[ ] Mary Muehlen Maring Maurice R. Hunke, D.J. Gerald W. VandeWalle, C.J.
I concur in the result. William A. Neumann
[ ] Maurice R. Hunke, D. J., sitting in place of Kapsner, J., disqualified.
Sandstrom, Justice, dissenting.
[ ] I agree with the majority that the statutes can be harmonized, and I would harmonize them. I do not agree with majority's assertion th
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