Lord v. Job Service North Dakota

• Decision Date: 13 January 1984
• Docket Number: No. 10491,10491
• Parties: Ervin LORD, Petitioner and Appellant, v. JOB SERVICE NORTH DAKOTA, Respondent and Appellee, and Lil's Restaurant and Continental Lounge, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 92

343 N.W.2d 92

Ervin LORD, Petitioner and Appellant, v. JOB SERVICE NORTH DAKOTA, Respondent and Appellee and Lil's Restaurant and Continental Lounge, Respondent.

Civ. No. 10491.

Supreme Court of North Dakota.

Jan. 13, 1984.

Duane E. Houdek, Legal Assistance of North Dakota, Bismarck, for petitioner and appellant.

Bill Peterson, Asst. Atty. Gen., Bismarck, for respondent and appellee Job Service North Dakota.

VANDE WALLE, Justice.

This is an appeal by Ervin Lord from a judgment of the district court of Stutsman County affirming a decision of Job Service North Dakota that Lord was not eligible for unemployment compensation benefits. We reverse the judgment of the district court and the decision of Job Service.

Lord was employed by Lil's Restaurant and Continental Lounge (hereinafter "Lil's") in Jamestown as a kitchen helper and janitor from June 1978 until June 30, 1982. At that time he left his employment because of a blister on his foot. He did not offer to return to work until September 1, 1982, at which time he was told there was no work for him. Lord subsequently filed an application for benefits which was denied because, according to Job Service, Lord left his employment for medical reasons and not for good cause attributable to his employer, Lil's. Lord appealed the decision to the district court which affirmed the decision, concluding that Lord left employment "because of a medical disability" and that the record is "totally devoid of any connection between the Petitioner's medical disability and his employer or employment." The district court noted that neither Lord nor Job Service supplied any medical record nor was there a statement or testimony from the employer. Lil's did not participate in the proceeding at either the administrative level or on appeal to the district court and this court.

On this appeal, Lord contends that the employer (Lil's) did not meet its burden of proving by a preponderance of the evidence that Lord voluntarily left his employment, thus disqualifying him from unemployment compensation benefits, and, if we conclude that Lord voluntarily quit his job, that it was for good cause attributable to the conditions of employment.

Before reaching the particular merits of this appeal, we are met with a disagreement between the parties as to the standard of review to be applied by this court. Job Service refers us to Section 52-06-27, N.D.C.C., which provides, in part: "... the finding of the bureau as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive and the review by the court shall be confined to questions of law.... An appeal may be taken from the decision of the district court to the supreme court of the state of North Dakota in the same manner as is provided in civil cases." It argues that this language, which is special language applying to appeals from Job Service decisions, should be construed so that on appeal to this court we apply Rule 52(a), N.D.R.Civ.P. Lord argues that the standard of review provided by Section 28-32-19, N.D.C.C., a part of the Administrative Agencies Practice Act, should apply to appeals from Job Service decisions and that the "preponderance of the evidence" standard as construed in Power Fuels, Inc. v. Elkin, 283 N.W.2d 214 (N.D.1979), should apply. Without discussing the difference between the two standards of review, we agree that appeals from Job Service are governed by Section 28-32-19, N.D.C.C. The provisions to which Job Service refers were enacted in 1937 and 1941. See 1937 N.D.Sess.Laws, Chapter 232, Section 8(i), and 1941 N.D.Sess.Laws, Chapter 261, Section 6-D(7). The Administrative Agencies Practice Act was enacted in 1947. See 1947 N.D.Sess.Laws, Chapter 240. Job Service is an administrative agency within the meaning of the definition set forth in Section 28-32-01(1), N.D.C.C. We stated in Perske v. Job Service North Dakota, 336 N.W.2d 146, 148 (N.D.1983):

"Section 28-32-19, N.D.C.C., controls the scope of our review of an administrative agency determination. The factual basis of an administrative order is reviewed in a limited manner by considering the following questions: '(1) Are the findings of fact supported by a preponderance of the evidence? (2) Are the conclusions of law sustained by the findings of fact? (3) Is the agency decision supported by the conclusions of law?' Asbridge v. North Dakota State Highway Com'r, 291 N.W.2d 739, 743 (N.D.1980). In an appeal from a decision of an administrative agency, we review the decision of the agency and look to the record compiled by the agency. Application of Nebraska Public Power Dist., 330 N.W.2d 143, 146 (N.D.1983). This court exercises restraint when reviewing agency findings; we do not substitute our judgment for that of the agency. Asbridge, supra, 291 N.W.2d at 744."

We believe that Lord's second issue is dispositive of this appeal, i.e., that he voluntarily quit his job for good cause attributable to the conditions of employment.

Section 52-06-02(1), prior to its amendment in 1983, ¹ provided that an individual is disqualified for benefits if he left his last employment "voluntarily without good cause attributable to the employer, ..." There is no dispute that Lord left employment because of the blister on his foot. However, the dispute is whether or not that condition was attributable to the employer. Lord testified that the blister developed when he worked twelve hours on his feet his last day of work because another employee asked that he take over his shift and that the other employee agreed to pay the overtime involved because Lil's would not pay the overtime. He further testified that the blister refused to heal and that his doctor referred him to an orthopedic specialist who placed his foot in a cast until the blister healed. No medical records were introduced and no other persons testified at the hearing before Job Service. There is testimony from Lord in the record that he suffered from diabetes and that the blister did not heal, because of the diabetic condition, until September 1982. Job Service gave the following reason for its decision:

"The claimant left his last employment for medical reasons. He has not established good cause attributable to the employer for leaving. Accordingly, he may not be considered entitled to benefits."

Job Service points out that unemployment compensation Acts of the various States contain two basic types of disqualification sta...