dissenting.
[¶ 13] After having reviewed the convoluted factual and procedural histories of this case, I find it impossible to concur with the temporary administrative law judge’s (TALJ) opinion that by accepting and remaining in the PST III position, Sharon Vogel voluntarily and unjustifiably limited her income. The challenged findings of fact are not supported by a preponderance of the evidence and the challenged conclusions of law cannot be supported by these erroneous findings of fact.
[¶ 14] The majority’s reasoning hinges on two often-used rules of construction. The first states “we decide only whether a reasoning mind reasonably could have decided the agency’s findings were proven by the weight of the evidence from the entire record.” Barnes v. Workforce Safety and Insurance, 2003 ND 141, ¶ 9, 668 N.W.2d 290. The second states, generally, that because the TALJ hears the witnesses and sees their demeanor, it is in a better position to ascertain the true facts. See State v. Guthmiller, 2004 ND 100, ¶ 7, 680 N.W.2d 236. The Court relies upon these rules on a regular basis, however, the strict and unwavering adherence to these rules in this circumstance denies Sharon Vogel the meaningful review she deserves from this Court. The TALJ’s findings of fact and conclusions of law simply cannot be reconciled with the evidence in this case, regardless of who observes the testimony. Logic and common sense demand a different conclusion when one views Sharon Vogel’s situation as a whole; beginning from the time she originally contracted Hepatitis. For this reason, I must respectfully dissent.
[¶ 15] Clearly, Ms. Vogel was, and is, intimidated, downtrodden, and suffering from depression; and for good reason. She contracted Hepatitis while checking the blood sugar of an inmate during the regular course of her employment. She incurred medical expenses and was required to change positions due to this injury. This new position was coupled with a surprising reduction in pay. Her complaints and requests were met with staunch opposition from her employer. Although she was ultimately successful, she struggled mightily to be compensated for this life-threatening disease and for the loss of income associated with it.
[¶ 16] Ms. Vogel then requested another change due to her continued unhappiness with the modified detention center position. After everything that had transpired between Ms. Vogel, the WSI, and her employer, it is reasonable to assume she believed her position would not, again, be coupled with a decrease in pay for which she would have to go through more litigation to remedy. But to her chagrin, the job did have lower pay. She complained to her superior officer, Sheriff Harvey, about the reduction in pay. He did nothing, and recommended nothing, to remedy the situation. She did not contact the HR director, Ms. Schatz-Jennings at this point, and instead commenced these proceedings. She has been denied benefits by the North Dakota WSI and now the temporary administrative law judge has concluded that her alternative employment and decreased compensation were voluntary, unjustified and therefore, do not warrant compensation. I cannot agree.
[¶ 17] What one must remember is that Sharon Vogel was content in her original job and that she was injured while doing it, forcing her into this seemingly unending struggle for compensation. Every problem that has arisen since the injury (the changes in jobs and their accompanying reduction in pay) is directly correlated to that injury. Despite this, the TALJ concluded that this final decision to change her employment was, somehow, voluntary. *14Reality would show quite the contrary. If Sharon Vogel had not been injured during her employment, she would not have been forced to alter her employment in the first place. Her subsequent search for comparative, fulfilling employment was not only involuntary, but completely justified considering the circumstances.
[¶ 18] Also, it is illogical to conclude that because Sharon Vogel did not contact her HR director she had, somehow, ratified the reduction in pay and was estopped from demanding compensation. She had already complained to her superior officer, Sheriff Harvey, and was told there was nothing that could be done. Puzzling, is why the TALJ places so much credence in the advice of the HR director, while completely discounting the futile discussion Ms. Vogel had already had with her own commanding officer. Similarly perplexing, is why Sharon Vogel would be required to entertain any advice from Ms. Schatz-Jen-nings, considering the scurrilous nature of a letter written by Ms. Schatz-Jennings, in which she condemned Ms. Vogel for her association with known drug users and motorcycle riders. (Gasp!) A complaint to this person, considering the parties’ history, would have been meaningless.
[¶ 19] It is apparent from the evidence that Sharon Vogel was a person' forced from her job by an employment related injury. She has been searching, with considerable opposition, for a substitute position with comparable pay and personal satisfaction. The TALJ’s finding that Ms. Vogel “voluntarily” limited her income by seeking a change from a position she was not happy with and by not contacting the HR director when she learned of the lower pay scale, is not supported by the preponderance of the evidence. The majority’s affirmation of such a decision, based superficially upon a rule of construction, denies Sharon Vogel a meaningful review.
[¶ 20] I would reverse and remand to the agency for calculations of the benefits to which she is entitled.
[¶ 21] RONALD L. HILDEN, D.J.