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Lawrence v. North Dakota Workers Compensation Bureau3/23/2000
Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable James M. Vukelic, Judge.
REVERSED AND REMANDED.
[ ] 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.
[ ] 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.
[ ] 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.
[ ] 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.
[ ] Lawrence refused Jobbers' written offer, noting "I do not accept this job offer at this time because my doctor's Naugle & Eastman only released me to work 4 hrs per day."
[ ] 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 a
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