concurring.
I concur in the result in this case. I do not agree that the certainty of economic injury is ever a factor to be considered in determining the suitability of offered employment.
My conclusion is easily reached by looking no further than the effect of the statute's use of the term "shall" and the rule of expressio unius est exclusio alterius. The crucial portions of Indiana's unemployment compensation legislation read as follows:
"(a) In determining whether or not any such work is suitable for an individual, the division shall consider the degree of risk involved to such individual's health, safety and morals, his physical fitness and prior training and experience, his length of unemployment and prospects for securing local work in his customary occupation, and the distance of the available work from his residence. However, work under substantially the same terms and conditions under which he was employed by a base-period employer, which is within his prior training and experience and physical capacity to perform, shall be deemed to be suitable work unless the claimant has made a bona fide change in residence which makes such offered work unsuitable to him because of the distance involved."
Ind.Code 22-4-15-2(a) (1982) (emphasis supplied) [hereinafter referred to as the suitable work subsection]. And,
"(b) Notwithstanding any other provisions of this article, no work shall be deemed suitable and benefits shall not be denied under this article to any otherwise eligible individual for refusing to accept new work under any of the following conditions:
(1) if the position offered is vacant due directly to a strike, lockout, or other labor dispute;
(2) if the remuneration, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality;
(3) if as a condition of being employed the individual would be required to join a company union or to resign from or refrain from joining a bona fide labor organization;
(4) if as a condition of being employed the individual would be required to discontinue training into which he had entered with the approval of the board."
IC 22-4-15-2(b) (1982) (emphasis supplied) [hereinafter referred to as the unsuitable work subsection].
These two subsections direct the Review Board of the Indiana Employment Security Division (the division) with great particularity as to what is meant by "suitable" employment. By use of the term "shall", the subsections serve as mandatory limitations on the administrative agency's decision-making powers. See 1A C.D. SANDS, SUTHERLAND STATUTORY CONSTRUCTION § 25.04 (1972). According to the unsuitable work subsection, there are four situations in which work can never be deemed suitable; whereas, the suitable work subsection enumerates specific factors which must be considered by the division in judging suitability of all remaining offered employment.
The majority, following the conclusion reached in Ball v. Review Bd. of the Ind. Employment Sec. Div., (1971) 149 Ind. App. 494, 273 N.E.2d 869, determines the factors listed in the suitable work section are not exelusive-a conclusion reached without reason or authority. Use of the word "shall" not only mandates the prescribed actions, but also "impl[ies] a negative of anything contrary or alternative to [its] *778requirement." 1A C.D. SANDS, supra § 24.04, at 296. And, the oft-cited maxim expressio unius est exclusio alterius dictates that, "[when the law is in the affirmative that a thing should be done by certain persons or in a certain manner, this affirmative manner contains a negative that it shall not be done by other persons or in another manner." State v. Home Brewing Co., (1914) 182 Ind. 75, 95, 105 N.E. 909, 916. See generally 2A C.D. SANDS, supra § 57.10.
These clear-cut indicators of legislative intent convince me the division may not embroider upon the intricate scheme al ready devised by the legislature to determine when offered employment is suitable. The only rationale submitted by the Ball court for its contrary conclusion is that, because the unsuitable work subsection lists several "arbitrary conditions of unsuitability", the suitable work subdivision is not an exclusive formula for judging work suitability. Ball, supra, at 500, 273 N.E.2d at 873. Rather than being merely "arbitrary" exceptions to the work suitability subsection, the unsuitable work subsection reveals the legislature's intent to specifically limit the division's discretionary power to define suitable work.
In an analogous case, it was necessary for the First District to determine whether the Center Township Trustee had the power to accumulate annual and sick leave for employees. Because the legislature had expressly granted such powers to similarly situated persons, application of expressio unius est exclusio alterius meant the legislature intended to deny the Center Township Trustee this authorization. Osborne v. State, (1982) Ind.App., 439 N.E.2d 677. Likewise here, by enumerating when the division must find that work is unsuitable and what must be considered in all other cases to determine suitability, the legislative intent is established that the division is not authorized to consider any other factors. So, certainty of economic injury cannot be considered as a work suitability factor because it is not enumerated in the suitable work subsection.