author: VANDE WALLE, Chief Justice.

text:
    2000 ND 53
    STATE of North Dakota, Plaintiff and Appellee, v. Matthew Charles FRASER, Defendant and Appellant. State of North Dakota, Plaintiff and Appellee, v. Christopher Scott Fraser, Defendant and Appellant. State of North Dakota, Plaintiff and Appellee, v. Christopher Fraser, Defendant and Appellant.
    Nos. 990179-990181.
    Supreme Court of North Dakota.
    March 21, 2000.

      Mark A. Flagstad, Assistant State’s. Attorney, Minot, for plaintiff ¿nd appellee.

      Debra K. Edwardson, Edwardson Law Office, Minot, for defendants and appellants.
   VANDE WALLE, Chief Justice.

[¶ 1] In these consolidated appeals, Christopher Fraser appealed from a judgment of conviction of forgery, and Christopher and Matthew Fraser appealed from judgments of conviction of burglary. We affirm.

I. THE FORGERY CASE

[¶ 2] Mandy Taniguchi was an acquaintance of Christopher Fraser, and he sometimes babysat for her. In November 1997, two checks written on Taniguchi’s closed checking account were passed at a Mini-Mart in Minot. When Mini-Mart contacted her about the returned checks, Tanigu-chi explained they had been forged and she contacted the police. A Mini-Mart store clerk later identified Christopher Fraser as the person who had passed the second check. Fraser was charged with forgery, and a jury found him guilty. Fraser appealed, asserting there was insufficient evidence for the jury to convict him of forgery.

[¶ 3] Appellate review of the sufficiency of the evidence for a jury verdict is very limited. State v. Freed, 1999 ND 185, ¶ 4, 599 N.W.2d 858. A criminal conviction will be reversed only if, after viewing the evidence and all reasonable eviden-tiary inferences in the light most favorable to the verdict, no rational fact finder could have found the defendant guilty beyond a reasonable doubt. City of Jamestown v. Neumiller, 2000 ND 11, ¶5, 604 N.W.2d 441; State v. Ebach, 1999 ND 5, ¶ 24, 589 N.W.2d 566. As a reviewing court, we look only to the evidence most favorable to the verdict and the reasonable inferences therefrom to see if there is substantial evidence to support the verdict. Freed, at ¶ 4. The task of weighing the evidence and judging the credibility of witnesses belongs exclusively to the jury, and we do not resolve conflicts in the evidence or reweigh credibility. Ebach, at ¶ 24; State v. Gagnon, 1999 ND 13, ¶ 23, 589 N.W.2d 560. A verdict based upon circumstantial evidence carries the same presumption of correctness as other verdicts. State v. Steinbach, 1998 ND 18, ¶ 16, 575 N.W.2d 193.

[¶ 4] The jury was instructed the State was required to prove Fraser “knowingly forged or uttered a check on an account in the name of Mandy Taniguchi.” See N.D.C.C. § 12.1-24-01(1). For purposes of our criminal code, a person engages in conduct “ ‘[k]nowingly’ if, when he engages in the conduct, he knows or has a firm belief,,unaccompanied by substantial doubt, that he is doing so, whether or not it is his purpose to do so.” N.D.C.C. § 12.1 — 02—02(l)(b).

[¶ 5] Fraser argues there is no direct evidence he knew the check was forged, and therefore the State failed to prove an essential element of the offense. We have recognized, however, the difficulty of proving through direct evidence a defendant’s actual state of mind, and have allowed the jury to infer what the defendant “knew” from the surroundings facts and circumstances:

[P]roof of what a particular person in fact subjectively believes will of necessity always be by circumstantial evidence. It is impossible for the factfinder to step into the shoes of the defendant to see what was actually in his mind at the time the wrongful conduct was engaged in. The factfinder must make its determination based upon whether the facts and circumstances would have caused this particular defendant to “know” the requisite facts. Thus, the court, as fact-finder in the instant case, was allowed to consider all of the surrounding facts and circumstances in determining whether Kaufman knew that the copper wire was lost or mislaid.

State v. Kaufman, 310 N.W.2d 709, 714 (N.D.1981).

[¶ 6] In this case, there was evidence from which the jury could infer Fraser either forged Taniguchi’s check or knowingly presented a forged check. Fraser babysat in Taniguchi’s home, and would have had access to her check blanks. Tan-iguchi testified the signature on the check was not hers and she had not authorized anyone to use the checks. The store clerk identified Fraser as the person who presented the check, and testified he saw Fraser write in the name of the store and amount on the check. He did not, however, see if Fraser signed the check.

[¶ 7] Fraser testified he received the check from Patrick Nadon, another friend of Taniguchi, and believed Nadon had received it as payment for babysitting. He further testified the check was completely filled out when he received it from Nadon. Fraser’s testimony conflicts with the store clerk’s testimony that he saw Fraser fill out a portion of the check in the store. The jury may have also believed it unlikely Taniguchi would have paid Nadon with a check made out to Mini-Mart, rather than directly to Nadon, and that the amount of the check, $10.27, was an unlikely amount to pay a babysitter.

[¶ 8] The evidence of the surrounding facts and circumstances was sufficient for the jury to draw an inference Fraser knowingly forged the check or presented the forged check. We will not reweigh the conflicting evidence or reassess the credibility of the witnesses. Viewing the evidence and inferences therefrom in the light most favorable to the verdict, we conclude there is sufficient evidence to support the verdict.

II. THE BURGLARY CASES

A. Corroboration of Accomplice Testimony

[¶ 9] In the early morning hours of August 24, 1998, the home of Jerome and Janice Lundeen in Minot was burglarized. Nicholas Lee, Ron Skarhus, Shane Mor-tenson, Christopher Fraser, and Matthew Fraser were implicated and charged with the burglary.

[¶ 10] At the trial of Christopher and Matthew Fraser, the State relied primarily upon the testimony of Lee and Skarhus. According to their testimony, they attended a party at the apartment of Christopher and Matthew Fraser beginning the evening of August 23. After drinking into the early morning hours of August 24, Lee, Skarhus, Mortenson, and the Frasers traveled to the Lundeen home in Matthew Fraser’s car, an Oldsmobile Cutlass. They broke into the Lundeen home and took various items, placing them into the trunk of Matthew Fraser’s car. They then returned to the Frasers’ apartment.

[¶ 11] According to Lee and Skarhus, the five returned to the Lundeen home in Lee’s car, a Plymouth Horizon, at approximately 6:00 a.m. They again entered the Lundeen home and stole additional items. As two of the five returned to the car they dropped a liquor bottle on the street; as it broke, they noticed someone jogging in the area. They quickly drove the vehicle around the corner to the front of the Lun-deen house, where they picked up the other three and drove away.

[¶ 12] An off-duty policeman testified he was out jogging in his neighborhood when he heard glass breaking. He saw two individuals get into a Plymouth Horizon and drive away. He also found a broken liquor bottle in the street where the Horizon had been parked. He returned home and called police to report the incident.

[¶ 13] Officer Dunn testified he received a report at 6:20 a.m. of disorderly suspects in a brown Horizon. When he saw the vehicle drive past him in the opposite direction, he turned his patrol car around and activated his overhead lights. As Dunn turned around, the Horizon sped around a corner. When Dunn got to the corner, the Horizon was stopped in the middle of the street with the doors open. Dunn saw at least four white males running from the car over a railroad embankment. Matthew Fraser and Lee were caught fleeing from the vehicle. The Horizon contained numerous items which were later identified as stolen from the Lundeen home.

[¶ 14] Matthew Fraser was arrested for consumption of alcohol by a minor, appeared in municipal court, and was released early that same morning. In the meantime, Janice Lundeen had discovered the burglary and reported it to the police. Lee, who was still in custody, was questioned about the burglary and admitted his involvement. He told police some of the stolen items may have been hidden near the Lundeen house, and agreed to return to the scene to help officers locate the items. As they approached the Lundeen house at approximately 10:30 a.m., Lee identified Matthew Fraser’s Oldsmobile Cutlass, with the other accomplices in it, heading in the opposite direction. Police turned and gave chase, and again the suspects sped around a corner and abandoned the car in the street. Skarhus, Mortenson, and both Frasers were apprehended fleeing from the vehicle. The trunk of the Oldsmobile Cutlass contained numerous items stolen from the Lundeen home.

[¶ 15] A jury found Christopher and Matthew Fraser guilty of burglary, and judgments of conviction were entered. On appeal, the Frasers assert the testimony of the two accomplices was not sufficiently corroborated under N.D.C.C. § 29-21-14, and that without the accomplices’ testimony the evidence was insufficient to support the jury verdicts.

[¶ 16] Under N.D.C.C. § 29-21-14, corroboration of an accomplice’s testimony is required:

Testimony of accomplice — Corroboration required. A conviction cannot be had upon the testimony of an accomplice unless he is corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof.

The purpose of the corroboration requirement is to show that a testifying accomplice is a rehable witness and worthy of credit. State v. Esparza, 1998 ND 13, ¶ 6, 575 N.W.2d 203; State v. Zimmerman, 524 N.W.2d 111, 114 (N.D.1994).

[¶ 17] We have set forth standards for applying the requirement:

It is the trial court’s duty to first determine, as a matter of law, whether there is any evidence corroborating the testimony of the accomplice. Any amount of corroboration is sufficient to give the case to the jury to determine the sufficiency of the corroboration. It is only when there is no corroborating evidence that this Court may reverse a judgment based upon the verdict of guilty.
All that is required is that the evidence, circumstantial or otherwise, corroborates the testimony of the accomplice as to some material fact or facts, and tends to connect the defendant with the commission of the crime. It is not necessary that the corroborating evidence be sufficient, in itself, to warrant a conviction or establish a prima facie case. It is the combined and cumulative weight of the evidence, other than the testimony of the accomplice witness, which satisfies the statute. The State need not point to a single, isolated fact which is sufficient corroboration.

State v. Haugen, 449 N.W.2d 784, 785-86 (N.D.1989) (citations omitted); see also Esparza, at ¶ 7; Zimmerman, 524 N.W.2d at 114.

[f 18] The corroborating evidence need not be incriminating in itself. State v. Garcia, 1997 ND 60, ¶38, 561 N.W.2d 599; State v. Torres, 529 N.W.2d 853, 855 (N.D.1995). Nor must the corroborating evidence directly link the accused to the crime. State v. Burgard, 458 N.W.2d 274, 277 (N.D.1990); State v. Haugen, 448 N.W.2d 191, 195 (N.D.1989). As we explained in Torres, 529 N.W.2d at 855 (quoting Burgard, 458 N.W.2d at 277):

“The corroborating evidence need not ‘establish criminal conduct,’ but need only corroborate the accomplice as to some material fact and tend to connect the defendant with the crime. Furthermore, the corroborating evidence need not, in isolation, be incriminating, if the combined and cumulative evidence other than the accomplice’s testimony tends to connect the defendant with the commission of the offense.”

[¶ 19] Applying these standards, there is sufficient corroborating evidence which tends to connect Matthew Fraser to the burglary. Matthew Fraser and one of the testifying accomplices were caught after fleeing a vehicle which was stopped within blocks of the crime scene immediately after the burglary occurred. In addition, the vehicle contained items stolen from the Lundeen house. There was clearly sufficient corroboration of the accomplice testimony as to Matthew Fraser. See Esparza, 1998 ND 13, ¶ 14, 575 N.W.2d 203 (evidence of an accused’s presence near the scene of a crime, immediately before and soon after the crime, corroborated the accomplice’s testimony); State v. Garcia, 425 N.W.2d 918, 920 (N.D.1988) (evidence that the defendant was in the company of accomplices at or near the place of the crime shortly before or after the crime is committed may be sufficient corroboration).

[¶ 20] The evidence of corroboration as to Christopher Fraser is not as strong, but, viewed in totality, was sufficient to allow the accomplice testimony to go to the jury. There was testimony placing Christopher with the accomplices until shortly before the burglary occurred. There was also testimony that, while police were transporting Lee back to the crime scene to attempt to locate stolen items “stashed” nearby, Lee identified the occupants of a passing vehicle as the other participants in the burglary. At the time, they were within a block of the Lundeen house. When police stopped the vehicle all of the occupants, including Christopher Fraser, jumped out of the car and ran. The car contained items stolen from the Lundeen house.

[¶ 21] Relying upon State v. Hogie, 454 N.W.2d 501 (N.D.1990), Christopher Fraser argues the evidence of corroboration was insufficient because there was no showing he exercised dominion and control over the stolen property found in Matthew’s car when it was stopped by police. Christopher has misinterpreted Hogie and our standard for applying the corroboration requirement. We do not look to a single factor, but examine the combined and cumulative weight of the corroborating evidence. Nor must the corroborating evidence be direct evidence of the defendant’s participation in the crime.

[¶ 22] In this case there are several pieces of evidence which, when viewed together, sufficiently corroborate the testimony of Lee and Skarhus. The evidence shows Christopher was with Lee and Ska-rhus in the early morning hours shortly before the burglary, and with Skarhus a few hours after the crime. See Zimmerman, 524 N.W.2d at 114 (the fact the defendant and accomplice were together late at night before an early-morning burglary and a few hours after the burglary creates an inference they were together during the intervening hours). Christopher was near the Lundeen home with the other perpetrators of the crime a few hours after the burglary, and fled when police stopped the car. See Garcia, 1997 ND 60, ¶ 39, 561 N.W.2d 599 (flight from police may be a corroborating factor). Finally, when Matthew Fraser’s vehicle was stopped near the crime scene within a few hours of the burglary, with Christopher as a passenger, the trunk of the car was full of items stolen from the Lundeen house. The cumulative and combined weight of this evidence is sufficient to corroborate the accomplices’ testimony under N.D.C.C. § 29-21-14.

B. Ineffective Assistance Of Counsel

[¶ 23] Christopher and Matthew Fraser assert they received ineffective assistance of counsel on the burglary charges. We have often stated claims of ineffective assistance of counsel should be raised through a petition for post-conviction relief, rather than upon direct appeal:

A claim of ineffective assistance of counsel at trial should not be brought on direct appeal, but rather through a petition for post-conviction relief. A post-conviction relief proceeding enables the parties to fully develop a record on the issue of counsel’s performance and its impact on the defendant’s case. Claims of ineffective assistance of counsel are ordinarily unsuited to summary disposition without an evidentiary hearing. However, when an ineffective assistance of counsel claim is asserted on direct appeal, we will examine the record to determine if the assistance of counsel was plainly defective. If we cannot readily determine assistance of counsel was plainly defective and there are no other grounds for reversal, then the defendant can later pursue the claim at a post-conviction proceeding where an adequate record can be developed.

State v. Burke, 606 N.W.2d 108, 2000 ND 25, ¶ 35 (citations omitted); see also State v. Strutz, 2000 ND 22, ¶ 26.

[¶ 24] After reviewing the record on appeal, we cannot readily determine counsel’s assistance was plainly defective. The Frasers may pursue these claims in post-conviction proceedings, wherein an adequate record can be developed.

III. CONCLUSION

[¶ 25] The convictions in these cases are supported by sufficient evidence. We have considered other issues raised by the parties and find them to be without merit. The judgments of conviction are affirmed.

[¶ 26] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN, DALE V. SANDSTROM, JJ., concur.


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2000 ND 51
    Raymond SMITH, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Nabors Drilling, USA, Inc., Respondent.
    No. 990299.
    Supreme Court of North Dakota.
    March 21, 2000.

      Thomas F. Murtha, Murtha & Murtha, Dickinson, for claimant and appellant.
    Lawrence A. Dopson, Special Assistant Attorney General, Bismarck, for appellee.
   MARING, Justice.

[¶.1] Raymond Smith appeals from the trial court’s judgment affirming the North Dakota Workers Compensation Bureau’s dismissal of his claim. We also affirm.

I.

[¶ 2] Smith worked as a motor hand on an oil rig owned and operated by Nabors Drilling USA, Inc. (“Nabors”). On January 8, 1998, while working on the rig, Smith suffered severe frostbite to his hands, which required amputation of portions of eight of his fingers. Smith filed an injury claim with the Bureau on January 10, 1998, when he first sought medical treatment for the frostbite. That same day, Smith underwent a drug test which showed a positive result for amphetamine, methamphetamine, and opiates.

[¶ 3] When questioned by a Bureau investigator, Smith explained, due to the pain caused by the frostbite, he had taken every medication in his medicine cabinet, including a Vicks inhaler and Tylenol with Codeine. Smith also revealed he had taken a capsule given to him by a friend on January 7, 1998. Initially, Smith said he did not know what the capsule was, but later admitted it was methamphetamine, saying “[i]t was in a capsule, but I’m sure, I understood it was methamphetamine, ok? It was in a capsule, easier way to pack it or something, I don’t know.” Smith’s medical records, indicated he was a suspected professional patient with drug seeking behavior. .

[¶ 4] The Bureau dismissed Smith’s claim. The Bureau found Smith’s test showed levels of amphetamine and methamphetamine above the concentration levels set by the U.S. Secretary of Transportation in 49 C.F.R. § 40, which created a rebuttable presumption the injury was due to impairment caused by the illegal use of a controlled substance under N.D.C.C. § 65-01-11. The Bureau concluded Smith failed to rebut the presumption and that, under N.D.C.C. § 65-01-02, an injury caused by the illegal use of controlled substances is not a compensable injury.

[¶ 5] Smith requested a hearing, denying drugs caused his injury and further denying he ever admitted using methamphetamine the day before his injury. A hearing was held on September 14, 1998. At the hearing, the Bureau abandoned its reliance upon the presumption created by the presence of illegal substances in Smith’s body on January 10,1998, because the test was too remote from the injury in time. Rather, the Bureau claimed the injury was noncompensable under N.D.C.C. § 65-01-02(ll)(b)(3), because it was caused by the illegal use of controlled substances.

[¶ 6] At the hearing, Smith admitted he had taken a capsule on January 7, 1998, but believed it was an over the counter “caffeine-type pill ... like the truck drivers use.” Accounting for his test results, Smith stated that the day after his injury he took Disoxin, a methamphetamine, which a physician had prescribed for him a decade before; however, he denied having methamphetamine in his system on January 8, 1998. Smith testified he had eaten the cotton from a Vicks inhaler because it was an old family remedy for a cold and also said he had taken Tylenol with Codeine, which had been prescribed by a dentist six months before his injury. On cross-examination, Smith recanted his admission he had taken methamphetamine on January 7, 1998, stating “[wjell, it’s kind of hard to look inside a capsule to see what you’re taking. It was not my opinion that’s what it was entirely, no.” Smith said his testimony changed because he thought back and became unsure about what he had taken.

[¶ 7] Terry Boyd, a drilling supervisor with Nabors, testified about rig operations. He stated he had never known anyone to be frostbitten as badly as Smith and no other worker on any of Nabors’ North Dakota rigs was frostbitten during that winter.

[¶ 8] Dr. Rodney Bobbitt, who examined Smith’s drug test, testified about the positive results. He stated a Vicks inhaler could produce positive amphetamine results, but the proportions of amphetamine and methamphetamine on the test were not consistent with Vicks. Smith’s test showed much higher concentrations of methamphetamine than amphetamine; Vicks produces the opposite result. Eating the cotton from an inhaler creates a higher amphetamine result than would proper use of an inhaler; however, the proportions of each substance would be the same.

[¶ 9] Bobbitt stated Smith reported taking Dilaudid, which would account for the positive opiate result; however, Smith never sent him a prescription for Dilaudid. Smith did send a prescription for Tylenol with Codeine, but that drug would not produce the type of positive found in the test result. Bobbitt also stated Smith received Demerol during treatment on January 10, 1998, which could account for the opiate result.

[¶ 10] According to Bobbitt, Smith never reported he had taken Disoxin, which could have accounted for the positive methamphetamine result; Smith also never sent a copy of a Disoxin prescription. Bobbitt testified, at the outside, Disoxin remains in the body for 36 hours. Bobbitt explained methamphetamine affects the distal vascular system by constricting the blood vessels, thus reducing blood flow, so that a person under the influence of methamphetamine is more susceptible to cold. Bobbitt admitted the test result did not reliably indicate what might have been in Smith’s system on January 8, 1998, because the test was too remote in time from the injury.

[¶ 11] Finally, the deposition testimony of Robin Mize, a physician’s assistant, was also admitted into evidence at the hearing. Mize testified Smith admitted a problem with recreational methamphetamine use during a discussion she had with him about the positive test result. Mize said she believed Smith had an ongoing problem.

[¶ 12] On November 23, 1998, the Administrative Law Judge (“ALJ”) released his recommended findings of fact, conclusions of law and order. In determining whether Smith had methamphetamine in his system when he sustained his frostbite injury on January 8, 1998, the ALJ considered Smith’s admission he had taken methamphetamine the day before his injury, his statement he had taken methamphetamine the day after his injury, and his conversation about his drug problem with Mize, as “persuasive evidence of a high probability” Smith had methamphetamine in his system on January 8, 1998. The ALJ determined Smith’s evasiveness and lack of honesty tipped the scale toward that finding. Though the ALJ acknowledged there was no hard evidence Smith ingested methamphetamine on the date of his injury, that was the only logical conclusion to be drawn from the evidence. The ALJ concluded methamphetamine was responsible for Smith’s frostbite injuries because it made him more susceptible to cold weather. The weight of the evidence established self-induced reduction of blood flow to Smith’s fingers was the cause of his frostbite, and thus Smith’s injury was noncom-pensable. The Bureau adopted the ALJ’s recommended findings of fact, conclusions of law and order, and the trial court affirmed the Bureau’s decision.

II.

[¶ 13] On appeal, this Court reviews the Bureau’s decision, rather than the decision of the district court. Loberg v. North Dakota Workers Compensation Bureau, 1998 ND 64, ¶ 5, 575 N.W.2d 221. 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, or its decision is not in accordance with the law. Dean v. North Dakota Workers Compensation Bureau, 1997 ND 165, ¶ 14, 567 N.W.2d 626. In evaluating the findings of fact, we do not make independent findings or substitute our judgment for that of the Bureau, id., but ask only whether a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record. Loberg, at ¶ 5.

III.

[¶ 14] Smith argues the Bureau failed to establish he took methamphetamine and also failed to show the illegal use of a controlled substance caused his injury. Thus, he contends the Bureau’s decision was not supported by the evidence. We disagree.

[¶ 15] Smith admitted to a Bureau investigator that, on the day before his injury, he took a capsule he knew to contain methamphetamine; Dr. Bobbitt testified methamphetamine remains in the body for up to 36 hours. Smith also admitted ingesting Disoxin, a methamphetamine for which he could not produce a prescription, on the day after his injury. Smith told his treating physician’s assistant he was a recreational methamphetamine user, and she testified she believed his drug problem was ongoing. Further, when later denying his use of metham-phetamines, Smith provided evasive answers and changed stories several times. The ALJ considered it incredible that someone with an ongoing recreational methamphetamine habit would have ten-year-old Disoxin in his medicine cabinet. The ALJ also was unpersuaded by Smith’s explanation that eating the cotton from the Vicks inhaler accounted for his positive drug test results. It is the Bureau’s responsibility to assess the credibility of witnesses and resolve conflicts in the evidence. Stewart v. North Dakota Workers Compensation Bureau, 1999 ND 174, ¶ 7, 599 N.W.2d 280. We conclude a reasoning mind reasonably could have determined Smith had nonprescribed, and thus illegal, methamphetamine in his system on January 8, 1998, based on the testimony at the hearing and on an analysis of Smith’s credibility.

[¶ 16] We also determine the Bureau’s findings support its conclusion that the methamphetamine in Smith’s system caused his frostbite injury. In Hust v. North Dakota Workers Compensation Bureau, it was unnecessary for us to decide whether the Bureau had the burden of proving a claimant’s impairment was a proximate cause of, or a substantial contributing factor to, his injury because, under either standard, the Bureau’s decision was supported by the record. 1998 ND 20, ¶ 13, 574 N.W.2d 808. The same is true in this case.

[¶ 17] Dr. Bobbitt testified methamphetamine causes constriction of the blood vessels and reduces blood flow, making someone who takes it more susceptible to cold. Bobbitt also testified fingers and toes are particularly vulnerable in this situation. Given that methamphetamine may remain in the body for up to 36 hours, the capsule Smith took the day before his injury could have been affecting his vascular system on January 8,1998, reducing the blood flow to his fingers. Though temperatures were extreme that day, no other employee suffered from frostbite. Thus, a reasoning mind reasonably could have determined from the weight of the evidence that methamphetamine caused Smith’s injury.

IV.

[¶ 18] The Bureau’s determination that the illegal use of methamphetamine caused Smith’s frostbite injury is supported by the evidence in the record. Under N.D.C.C. § 65 — 01—02(ll)(b)(3), an injury caused by the illegal use of a controlled substance is noncompensable. We, therefore, affirm the Bureau’s dismissal of Smith’s workers compensation claim.

[¶ 19] GERALD W. VANDE WALLE, C.J., and WILLIAM A. NEUMANN, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.


author: MARING, Justice. WILLIAM A. NEUMANN, J. SANDSTROM, Justice,

text:
    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 appel-lee. 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] Nau-gle & 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 ex parte 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, 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:
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)® and (k) then in effect prohibited the Bureau’s outside litigation counsel from making those ex parte contacts with the Bureau’s director of claims and rehabilitation. Scott, 1998 ND 221, ¶¶ 9-10, 587 N.W.2d 153. We decided the clear intent of those statutes was to prohibit ex parte contacts between the decision maker and persons who participated in the hearing or otherwise had an interest in the case. Id. at ¶ 10. We concluded the Bureau’s ex parte contacts with its outside counsel in that case clearly violated those statutory proscriptions. Id. We also concluded N.D.C.C. § 28-32-12.1(2), which allows an agency head or hearing officer to communicate with and receive aid from staff assistants if those assistants do not furnish, augment, diminish, or modify the evidence in the record, was intended to ensure staff assistance is available for the decision maker and was not intended to supersede the protections afforded by the specific provisions of N.D.C.C. § 28-32-12.1, prohibiting ex parte communications from persons who participated in an administrative hearing. Scott, at ¶ 11.

[¶ 16] In Scott, 1998 ND 221, ¶ 12, 587 N.W.2d 153, we warned the Bureau about the due process implications of these types of ex parte communications:

There are strong policy reasons for prohibiting ex parte communications between the attorney who represented the agency at an adversarial hearing and the agency decision maker. In Camero v. United States, 179 Ct.Cl. 520, 375 F.2d 777 (Ct.Cl.1967), the court held an agency decision was invalid where the attorney representing the agency communicated with the decision maker, advised him to reject the recommendation of a grievance committee, and participated in preparing the final decision. The court reasoned:
[0 ]ne of the fundamental premises inherent in the concept of an adversary hearing, particularly if it is of the evidentiary type, is that neither adversary be permitted to engage in an ex parte■ communication concerning the merits of the case with those responsible for the decision.... It is difficult to imagine a more serious incursion on fairness than to permit the representative of one of the parties to privately communicate his recommendations to the decision makers. To allow such activity would be to render the hearing virtually meaningless.
Camero, 375 F.2d at 780-81 (citations omitted); see also, e.g., Sullivan v. Department of the Navy, 720 F.2d 1266, 1271 (Fed.Cir.1983); Koster v. United States, 231 Ct.Cl. 301, 685 F.2d 407, 412 (Ct.Cl.1982); Ryder v. United States, 218 Ct.Cl. 289, 585 F.2d 482, 487 (Ct.Cl.1978); New York State Inspection, Security and Law Enforcement Employees v. New York State Public Employment Relations Board, 629 F.Supp. 33, 44-45 (N.D.N.Y.1984); Louisiana Pacific Corp. v. Koons, 816 P.2d 1379, 1382 (Alaska 1991); 4 Jacob A. Stein et ah, Administrative Law § 32.01[2][a][i] (1998). •

[¶ 17] In Scott, 1998 ND 221, ¶ 13, 587 N.W.2d 153, we also decided N.D.C.C. § 65-01-16(8), was not applicable to that case, because the injured worker’s claim was filed before July 31, 1997. In Scott, we were not asked to construe N.D.C.C. § 65-01-16(8); rather, we referred to the Bureau’s characterization of the statute, and we rejected the Bureau’s argument the legislative history should be considered to support its position the provision was intended to clarify existing law to allow the ex parte contacts in that case. Scott, at ¶ 14.

[¶ 18] Here, Lawrence’s claim was filed after the effective date of N.D.C.C. § 65-01-16(8), and that provision applies to his claim. In support of his motion to supplement the record in the district court, Lawrence argued “nothing in [N.D.C.C. § 65-01-16(8) ] allows the consultations to be ex parte or exempts the bureau from N.D.C.C. ch. 28-32 certified record filing requirement.” In denying Lawrence’s motion, the district court cited our decision in Scott and effectively construed N.D.C.C. § 65-01-16(8) to authorize ex parte contacts between the Bureau and its outside counsel about a pending ALJ recommendation. Although the Bureau now argues there is no claim it deviated from the statutory mandates in N.D.C.C. § 65-01-16(8) or N.D.C.C. ch. 28-32, the district court effectively construed N.D.C.C. § 65-01-16(8) to allow ex parte contacts in this situation, and our analysis begins with the interpretation of that statute.

[¶ 19] Our primary objective in construing statutes is to ascertain the legislature’s intent, and we look first at the words used in the statute, giving them their plain, ordinary, and commonly understood meaning. Witcher v. North Dakota Workers Comp. Bur., 1999 ND. 225, ¶ 11, 602 N.W.2d 704. If the plain language of a statute is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit because the legislative intent is presumed clear from the face of the statute. County of Stutsman v. State Hist. Soc., 371 N.W.2d 321, 325 (N.D.1985). See N.D.C.C. § 1-02-05. We construe related statutes as a whole to harmonize and give meaning to each word and phrase. Witcher, at ¶ 11. We construe statutes to avoid constitutional infirmities. State ex rel. Sprynczynatyk v. Mills, 523 N.W.2d 537, 540 (N.D.1994); Froysland v. North Dakota Workers Comp. Bur., 432 N.W.2d 883, 889 (N.D.1988). See N.D.C.C. § 1-02-38(1).

[¶ 20] Section 65-01-16(8), N.D.C.C., says when “reviewing recommended findings, conclusions, and orders, the bureau may consult with its legal counsel representing it in the proceeding.” Nothing in that language authorizes those consultations to be ex parte, and N.D.C.C. § 28-32-12.1 generally prohibits ex parte communications between an agency and persons allowed to participate in the proceedings. The introductory language of N.D.C.C. § 65-01-16 says “[t]he following procedures must be followed in claims for benefits, notwithstanding any provisions to the contrary in chapter 28-32.” The language in N.D.C.C. § 65-01-16(8) authorizing consultations when reviewing a pending ALJ recommendation is not contrary to the provisions in chapter 28-32 prohibiting ex parte communications. Under our rules of construction, we harmonize those provisions to allow the Bureau to consult with its outside legal counsel in reviewing a pending ALJ recommendation as long as those communications are not ex parte. If N.D.C.C. § 65-01-16(8) is construed to permit ex parte contacts between the Bureau and its outside litigation counsel in these circumstances, a potential due process violation exists. See, e.g., Camero v. United States, 179 Ct.Cl. 520, 375 F.2d 777, 780-81 (1967) and other authorities cited in Scott, 1998 ND 221, ¶ 12, 587 N.W.2d 153. We construe statutes to avoid constitutional infirmities. Mills, 523 N.W.2d at 540; Froysland, 432 N.W.2d at 889. We harmonize N.D.C.C. § 65-01-16(8) with N.D.C.C. ch. 28-32 to allow the Bureau to consult with its outside litigation counsel when reviewing a pending ALJ recommendation, but to preclude those consultations from being ex parte. We conclude the Bureau’s ex parte contacts with its outside legal counsel about the pending ALJ recommendation violated N.D.C.C. § 65-01-16(8) and N.D.C.C. ch. 28-32.

IV

[¶ 21] Having concluded the Bureau’s ex parte contacts violated N.D.C.C. § 65-01-16(8) and N.D.C.C. ch. 28-32, we consider the appropriate remedy for this case. In Scott, 1998 ND 221, ¶ 19, 587 N.W.2d 153, a majority of this Court recognized N.D.C.C. § 28-32-12.1(6), now codified at N.D.C.C. § 28-32-12.1(7), ordinarily requires disqualification of an agency head or hearing officer who receives improper ex parte communications, but that remedy was inappropriate there because the communications came to light after the final agency decision had been issued and the cat was out of the bag. We decided the Bureau’s ex parte contacts in that case demonstrated a systemic disregard of the law because the record established widespread institutional noncompliance with the requirements of law, rather than a single miscue or improper act, and we concluded the proper remedy was reinstatement of the ALJ’s recommended decision. Scott, at ¶¶ 20-22.

[¶ 22] Here, the district court decided the Bureau’s ex parte contacts with outside litigation counsel established a systemic disregard of the law and ordered reinstatement of the ALJ’s decision. The Bureau primarily relies on legislative history for N.D.C.C. § 65-01-16(8) to support its position that these ex parte contacts are authorized by statute. Although we have harmonized N.D.C.C. § 65-01-16(8) and N.D.C.C. ch. 28-32 in a manner contrary to the Bureau’s position, under these circumstances, we are not persuaded the Bureau’s actions establish a systemic disregard of the law warranting reinstatement of the ALJ’s recommended decision.

[¶ 23] Lawrence nevertheless argues he is entitled to reinstatement of disability benefits. We conclude, however, a remand for a rehearing is necessary for application of the correct legal standard for justification under N.D.C.C. § 65-05-08(7).

[¶ 24] 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:
7. 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.

[¶ 25] 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.

[¶ 26] In Pulver v. Dundee Cement Co., 445 Mich. 68, 515 N.W.2d 728, 730 (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 Kachinski v. Workmen’s Comp. Appeal Bd., 516 Pa. 240, 532 A.2d 374, 379 (1987) (stating injured employee’s place of residence is a relevant consideration in determining whether an offer is actually available to the employee).

[¶ 27] 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).

[¶ 28] 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.

[¶ 29] 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),

[¶ 30] 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).

[¶ 31] We reverse the district court judgment and remand with instructions to remand to the Bureau for proceedings consistent with this opinion.

[¶ 32] GERALD W. VANDE WALLE, C.J., MAURICE R. HUNKE, D.J., concur.

WILLIAM A. NEUMANN, J.

I concur in the result.

[¶ 33] MAURICE R. HUNKE, D. J., sitting in place of KAPSNER, J., disqualified.

SANDSTROM, Justice,

dissenting.

[¶ 34] I agree with the majority that the statutes can be harmonized, and I would harmonize them. I do not agree with majority’s assertion that the Bureau improperly analyzed the worker’s justification for refusal of the job offer. I, therefore, dissent.

I

[¶ 35] Although I would harmonize N.D.C.C. §§ 28-32-12.1 and 65-01-16, the Bureau’s interpretation of N.D.C.C. § 65-01-16(8) is not unreasonable. Indeed, the Bureau’s interpretation is consistent with the clear legislative history, see Hearing on H.B. 1270 Before the House Industry, Business, and Labor Comm., 55th N.D. Legis. Sess. (Feb. 3, 1997), and consistent ™th this Court’s own interpretation of the statute in Scott v. North Dakota Workers Comp. Bureau, 1998 ND 221, ¶¶ 13-17, 587 N.W.2d 153 (emphasis added).

[¶ 13] The Bureau nevertheless asserts the ex parte communications in this case were not improper, citing N.D.C.C. § 65-01-16(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.
This provision was enacted by the 1997 Legislative Assembly, and applies only to claims filed after July 31, 1997. See 1997 N.D. Sess. Laws Ch. 532, §§ 1, 7. It clearly does not apply in this case.
[¶ 14] The Bureau asserts we may nevertheless look to the legislative history of N.D.C.C. § 65-01-16(8) to determine it was intended to clarify existing law, and demonstrates the legislature’s intent to allow the ex parte contacts which occurred in this case. We disagree.
[¶ 15] It is presumed the legislature acts with a purpose and does not perform useless acts. State v. Beilke, 489 N.W.2d 589, 592 (N.D.1992); State Bank of Towner v. Edwards, 484 N.W.2d 281, 282 (N.D.1992). Thus, it is presumed a legislative enactment is intended to change existing law. Heck v. Reed, 529 N.W.2d 155, 161 (N.D.1995); Beilke, 489 N.W.2d at 592; State Bank, 484 N.W.2d at 282. However, when the clear purpose of an amendment to a statute is to merely clarify existing law, the policy expressed in the amendment may be considered when construing rights under the original statute. Effertz v. North Dakota Workers Compensation Bureau, 525 N.W.2d 691, 698 (N.D.1994).
[¶ 16] The principle allowing consideration of a subsequent clarifying amendment does not apply under the facts in this case. The 1997 Legislature did not amend an existing statute with the express intent of clarifying that statute. Here, the legislature enacted a new statute in a different title of the Century Code. The existing statute remains in its original form. Under these circumstances, the 1997 enactment is not a “clarifying amendment,” but is a new enactment which attempts to carve out an exception to the general rule of N.D.C.C. § 28-82-12.1(3).
[¶ 17] Prior to the 1997 amendment, the Bureau was clearly governed by the general rule of N.D.C.C. § 28-32-12.1(3), which prohibited the ex parte contacts in this case. The 1997 Legislature created a new provision in the Workers Compensation title of the Code, intended to allow the Bureau to consult with its attorneys when reviewing an ALJ’s recommended decision. However, all other agencies remain subject to the proscriptions in N.D.C.C. § 28-32-12.1, which remains in effect. Under these circumstances, the 1997 enactment is not a clarifying amendment, but represents a clear intended change in the law. Accordingly, we do not consider the 1997 enactment or its legislative history when construing the Bureau’s obligations under N.D.C.C. § 28-32-12.1 prior to the effective date of N.D.C.C. § 65-01-16(8). (Footnote omitted).

II

[¶ 36] The majority says at ¶ 28: “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.” The majority, however, focuses on only one sentence out of context. The Bureau’s Findings of Fact, Conclusions of Law and Final Order specifically states: “The Bureau adopts that portion of the Administrative Law Judge’s rationale which sets forth that the question to be answered in this case is whether the Claimant was justified in refusing the various job offers made to him by the employer, and whether he voluntarily limited his income by declining said job offers.” The Bureau’s decision taken as a whole belies the majority’s characterization and reflects the appropriate focus on the worker:

The evidence of record having been considered and appraised by the Administrative Law Judge, and the Administrative Law Judge having issued his Recommended Findings of Fact and Conclusions of Law on October 22, 1998, and the Bureau having carefully reviewed the transcript of the administrative hearing which took place on August 21, 1998, and the exhibits made a part of the record at that hearing,
SUMMARY OF EVIDENCE
The Bureau adopts the Administrative Law Judge’s summary of the evidence with the following clarifications and/or additions:
1. The January 30, 1998 medical note made by Dr. Naugle’s office (Exhibit C — 49) reiterated Dr. Naugle’s “opinion” regarding the Claimant’s release to work abilities; the Administrative Law Judge’s summary at page 8 stating that Dr. Naugle was simply “made aware” of the modified job offer is herein clarified and corrected;
2. On or about July 28, 1997, the Claimant was hired by Jobbers; within two days thereafter, the Claimant had flown to Bismarck, North Dakota, to start work on July 30,1997;
3. Between August 1, 1997 and September 13, 1997, the date of injury, the Claimant only returned to California on one occasion, to pick his then girlfriend up;
4. At no time prior to the Bureau issuing its February 10, 1998 Notice of Intention to Discontinue Benefits did the Claimant ever allege to either the Bureau, or the employer, that he could not financially afford to return to Bismarck to accept the transitional modified job offer; in three separate written job declinations that he provided to Jobbers, not once did the Claimant allege he was financially unable to return to Bismarck;
5. By the time the Claimant turned the third modified job offer down on or about February 4, 1998 (Exhibit C — 54), Claimant was aware that Jobbers would provide him with a company vehicle for his use, that he would only need to work 20 hours a week (four hours per day), and that he would be paid a full-time wage ($507 per week). In addition, while Claimant never requested an advance from Jobbers, he was well aware and had in the past received advances from Jobbers and was also aware that Jobbers was willing to fly the Claimant to Bismarck, at their own expense;
6. Despite being released to work in January of 1998, the Claimant has never at any time since his release date ever sought any employment, in any city, anywhere in the United States;
7. The facility referenced by the Administrative Law Judge at page 11 of his “Summary of Evidence” which Kathy Dewald testified to included a full kitchenette for the use by the Claimant;
8. The Claimant presented absolutely no evidence to the Bureau of,any fixed expenses, such as, for example, a home mortgage or monthly rent pursuant to a contractual lease, which he would have continued to incur in California had he returned to Bismarck to accept the modified job offer;
9.The Claimant presented absolutely no evidence or proof to the Bureau to substantiate his allegations that he cannot financially afford to return to Bismarck to accept the transitional job offer.
RATIONALE
The Bureau adopts that portion of the Administrative Law Judge’s rationale which sets forth that the question to be answered in this case is whether the Claimant was justified in refusing the various job offers made to him by the employer, and whether he voluntarily limited his income by declining said job offers.
The Bureau further adopts that portion of the ALJ’s rationale that the Claimant’s argument regarding “personal vehicle” is without merit, that portion which states the Claimant would have greater access to medical providers including physical therapy in Bismarck as opposed to the remote area in which he lives, and that portion which states that the Claimant should be expected to attempt the modified job offer of Jobbers.
The Bureau specifically rejects that portion of the ALJ’s “Rationale” that states that “Claimant’s refusal to accept the job without some provision for payment of his living expenses is justified.”
FINDINGS OF FACT
Recommended Findings of Fact 2, 3, 5, 6 and 7 are hereby adopted as part of the Bureau’s Findings of Fact;
The first sentence of Recommended Finding of Fact I is likewise hereby adopted as part of the Bureau’s Findings of Fact;
Recommended Finding of Fact 4 is modified to reflect that Dr. Naugle released the Claimant to work four hours a day for four weeks, increasing to six hours per day for two weeks, and then eight hours per day thereafter;

Recommended Finding of Fact 8 is not adopted by the Bureau; to the contrary, the greater weight of the evidence shows that the Claimant was not justified in rejecting the employer’s job offer, and because of his lack of justification, he voluntarily limited his income and remains uneligible [sic] for disability benefits during the period of his continuation or refusal to accept employment.

The employer, by providing the Claimant 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 pursuant to North Dakota law.

CONCLUSIONS OF LAW

1. Recommended Conclusion of Law 1 is hereby adopted as part of the Bureau’s Conclusions of Law; Recommended Conclusions of Law 2 and 3 are specifically not adopted by the Bureau.

2. Section 65-05-08(7) of the North Dakota Century Code provides 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.”

3. Pursuant to North Dakota law, it is for the Bureau to determine whether the refusal to accept employment suitable to the employee’s capacity is justified. Under the facts and circumstances of this case, the Bureau does not find that the Claimant was justified in refusing the job offer made by Jobbers.

4. The modified job offer was within the Claimant’s physical restrictions as well as his ability to learn. The job was to initially entail sedentary work at four hours per day (20 hours per week) at a full-time wage, $507 per week. The employer offered the Claimant the personal use of a company vehicle, and offered to pay the Claimant’s airfare to return to Bismarck.

5.There exists no requirement, under North Dakota law, requiring an employer to pay a Claimant’s “meal and living expenses” in order to validate a good faith modified transitional job offer.

ORDER

1. The Bureau’s Amended Order dated May 7,1998, which clarifies by reference and includes the Bureau’s Order of March 10, 1998, is affirmed in all respects.

The Bureau’s order as a whole reflects a proper focus on the worker.

[¶ 37] Whether an action is justified is ordinarily a question of fact:

Ordinarily, justification is an issue of fact. Kjesbo [v. Ricks], 517 N.W.2d [585,] 588 [ (Minn.1994) ] (citing Bennett v. Storz Broadcasting Co., 270 Minn. 525, 134 N.W.2d 892, 900 (1965)). The test for proving justification is what is reasonable conduct under all the circumstances of the case. Id.

Fankhanel v. M & H Constr. Co., 1997 ND 20, ¶ 10, 559 N.W.2d 229. See also CAP Partners v. Cameron, 1999 ND 178, ¶¶ 10-11, 599 N.W.2d 309; Greenwood v. Greenwood, 1999 ND 126, ¶ 17, 596 N.W.2d 317; Larsen v. Commission on Med. Competency, 1998 ND 193, ¶32, 585 N.W.2d 801. The Bureau made the appropriate analysis.

Ill

[¶ 38] I would reverse the district court and reinstate the Bureau’s order.

[¶ 39] Dale V. Sandstrom

      . In 1999 N.D. Sess. Laws ch. 553, § 2, the legislature enacted language making N.D.C.C. § 65-01-16 "effective for all orders and decisions on all claims regardless of the date of injury or the date the claim was filed.” N.D.C.C. § 65-01-16(12).

      . As relevant to this case, the 1997 Legislature amended those statutes to reflect that "contested cases” are now called "adjudicated proceedings.” 1997 N.D. Sess. Laws ch. 277, §§ 14, 17. See Scott, 1998 ND 221, ¶9 n. 1, 587 N.W.2d 153. The proceedings in this case were conducted under the 1997 version of the statutes.
      In 1999 N.D. Sess. Laws ch. 290, § 1, the Legislature further amended N.D.C.C. § 28-32-12.1 to include a new subsection which provides:
      4. In an adjudicative proceeding conducted by a hearing officer other than the agency head, counsel for the administrative agency and the agency head, without notice and opportunity for all parties to participate, may communicate and consult regarding the status of the adjudicative proceeding, discovery, settlement, litigation decisions, and other matters commonly communicated between attorney and client, to permit the agency head to make informed decisions. This subsection does not apply after recommended findings of fact, conclusions of law, and orders have been issued, except counsel for the administrative agency and the agency head may communicate regarding settlement and negotiation after recommended findings of fact, conclusions of law, and orders have been issued.

      . Section 65-05-08(7), N.D.C.C., was enacted in its present form in 1997 N.D. Sess. Laws ch. 542, § 1. Similar language was initially enacted in 1989 N.D. Sess. Laws ch. 770, § 3, and was formerly codified at N.D.C.C. § 65-05-10(2).