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 pur*264pose 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;
*2653. 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;
*266Recommended 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