Lawrence v. North Dakota Workers Comp. Bur.

• Decision Date: 23 March 2000
• Docket Number: No. 990240.,990240.
• Citation: 608 N.W.2d 254,2000 ND 60
• Parties: Fred LAWRENCE, Claimant and Appellee, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellant. and Jobbers Warehouse, Inc., Respondent and Appellee.
• Court: North Dakota Supreme Court

608 N.W.2d 254

2000 ND 60

Fred LAWRENCE, Claimant and Appellee, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellant. and Jobbers Warehouse, Inc., Respondent and Appellee.

No. 990240.

Supreme Court of North Dakota.

March 23, 2000.

Kathryn L. Dietz, Dietz, Little & Haas, Bismarck, N.D., for claimant and appellee.

H. Malcolm Pippin, Special Assistant Attorney General, Williston, N.D., for appellant.

Monte L. Rogneby, Kapsner & Oliver, Bismarck, N.D., for respondent and appellee. Submitted on brief.

MARING, Justice.

[¶ 1] The North Dakota Workers Compensation Bureau appealed from a district court judgment reversing a Bureau order denying Fred Lawrence further disability benefits. We hold the Bureau's ex parte consultation with outside litigation counsel about a pending Administrative Law Judge recommendation violated N.D.C.C. § 65-01-16(8) and N.D.C.C. ch. 28-32. We also hold an injured worker is justified in refusing a job offer under N.D.C.C. § 65-05-08(7) if a reasonably prudent person would refuse the offer under the same or similar circumstances. We reverse the judgment and remand with instructions to remand to the Bureau for rehearing.

I

[¶ 2] In August 1997, Lawrence began working as an over-the-road truck driver with a Bismarck based employer, Jobbers Moving and Storage Company. When Jobbers hired Lawrence, he had been living in California since 1995. Lawrence sustained a back injury on September 13, 1997, while unloading a piano in Illinois during the course of his employment. Lawrence returned to Bismarck on September 22, 1997, and after a discussion with representatives of Jobbers, it was jointly agreed Lawrence would return to California in October 1997 for treatment of his injury. The Bureau accepted Lawrence's claim for benefits.

[¶ 3] On November 26, 1997, Dr. Wilfred Eastman performed back surgery on Lawrence in California. On January 15, 1998, Dr. Eastman released Lawrence to work at a sedentary job for 4 hours per day. In January 1998, Dr. Floyd Naugle also released Lawrence to work at a sedentary job for 4 hours per day.

[¶ 4] Jobbers sent Lawrence a written modified job offer, dated January 22, 1998, with duties that included computerizing records and updating operating procedures at Jobbers' Bismarck office:

We have work available 5 days per week, 8 hours per day, and the rate of pay will be $507.00 per week at Jobbers Moving & Storage in Bismarck, ND. Your medical provider has indicated that they believe that this position is physically appropriate for you at this time. Your work ability as defined by your physician has been reviewed and it is understood that you are to perform only duties within the guidelines and you will obtain assistance as needed for duties not within these recommendations.

You understand that the duties outlined above can be modified to fit your work ability as defined by your physician. You will also be responsible to notify your immediate supervisor if you are experiencing any problems in the performance of any duties within your restrictions. You are responsible for notifying your immediate supervisor of any time off or modifications to your work schedule. Your return to work program will be considered a job duty and you will attend them as scheduled, or it will be deemed failure to show up for work.

[¶ 5] Lawrence refused Jobbers' written offer, noting "I do not accept this job offer at this time because my doctor's [sic] Naugle & Eastman only released me to work 4 hrs per day." [¶ 6] Jobbers sent Lawrence a second written job offer:

Jobbers Moving and Storage Co. understands that your doctor has only released you for 4 hours of work per day currently, but is willing to pay you for an 8 hour work day, until it is deemed appropriate for you to work 8 hours per day by your doctor. We are doing this with the understanding that the remaining 4 hours each day will be used for doctors visits and physical therapy as scheduled by your primary care physician.

We want to work with you and your doctor as 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."

[¶ 7] 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."

[¶ 8] 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 "[i]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).

[¶ 9] 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.

[¶ 10] Lawrence appealed to the district court and moved to supplement the certified record to include the Bureau's exparte 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

[¶ 11] 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, its conclusions of law are not supported by its findings of fact, its decision is not supported by its conclusions of law, its decision is not in accordance with the law, or its decision violates the claimant's constitutional rights or deprives the claimant of a fair hearing. Vernon, at ¶ 8. Questions of law, including the interpretation of a statute, are fully reviewable on appeal from a decision by the Bureau. Lee v. North Dakota Workers Comp. Bur., 1998 ND 218, ¶ 5, 587 N.W.2d 423.

III

[¶ 12] The Bureau argues N.D.C.C. § 65-01-16(8) is not unconstitutional and does not violate due process.

[¶ 13] Section 65-01-16(8), N.D.C.C., was enacted in 1997 for workers compensation claims filed after July 31, 1997,¹ see 1997 N.D. Sess. Laws ch. 532, § 7, and provides:

The following procedures must be followed in claims for benefits, notwithstanding any provisions to the contrary in chapter 28-32:

...

8. Rehearings must be conducted as hearings under chapter 28-32 to the extent the provisions of that chapter do not conflict with this section. The bureau may arrange for the designation of hearing officers to conduct rehearings and issue recommended findings, conclusions, and orders. In reviewing recommended findings, conclusions, and orders, the bureau may consult with its legal counsel representing it in the proceeding.

[¶ 14] In Scott v. North Dakota Workers Comp. Bur., 1998 ND 221, 587 N.W.2d 153, we considered an issue involving the Bureau's ex parte contacts with its outside litigation counsel about a pending ALJ recommendation for a claim filed before July 31, 1997. In Scott, at ¶¶ 8, 10, the Bureau's outside counsel consulted with its director of claims and rehabilitation, advised the director the ALJ's recommendation should be rejected, and drafted several versions of findings, conclusions, and orders for the director to review. All of those ex parte contacts were without the knowledge or participation of the claimant or his attorney, and the claimant received no notice or copies of the Bureau's outside counsel's proposed findings, conclusions and orders prior to issuance of the final order. Id. at ¶ 8.

[¶ 15] We concluded the provisions of N.D.C.C. § 28-32-12.1(3) and (5) and N.D.C.C. § 28-32-17(4)(i) and (k) then in effect²...