Penelope J. Phillips, Katherine A. Jones, Felhaber, Larson, Fenlon & Vogt, P.A., Suite 4200, 601 Second Avenue South, Minneapolis, MN 55402-4302 (for relator)

Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)

Considered and decided by Kalitowski, Presiding Judge, Crippen, Judge, and Parker, Judge.[*]

Respondent Janice Grimsgard was employed as a live-in home health care worker through relator Compassionate Home Care, Inc. After her client died, she refused a new placement with Compassionate Care. The Department of Economic Security initially disqualified Grimsgard from benefits, concluding that she had failed without good cause to accept suitable employment. Respondent appealed. A reemployment insurance judge reversed the department's determination, finding the offered position unsuitable. This result was affirmed in a decision of the commissioner's representative, which we affirm.

In October 1998, Compassionate Care contacted the department because it had an offer of work for respondent. The offer was for a full-time position in Minneapolis but was not a live-in position. When the department telephoned respondent to discuss the position on October 22, 1998, she refused it. On October 23, 1998, the department sent a determination of disqualification to respondent.

The reemployment insurance judge deemed the offered position to be unsuitable in light of its distance from respondent's home in Litchfield and the fact that the position was not a live-in one. The commissioner's representative agreed.

The disqualification provisions of Minnesota reemployment insurance law are contained within Minn. Stat. § 268.095 (1998). Subdivision 8, which deals with offers of employment, disqualifies from benefits claimants who, without good cause, fail to seek or accept offers of suitable employment. Minn. Stat. § 268.095, subd. 8(a). Suitable employment is "employment in the claimant's labor market area that is reasonably related to the claimant's qualifications." Minn. Stat. § 268.095, subd. 9. Among other considerations, "the distance of the employment from the claimant's residence shall be considered." Id. Further guidance concerning factors to be considered in determining whether distance makes a position unsuitable are contained in Minn. R. 3305.0800, subpt. 11 (1997). They include "distance, proximity to transportation, cost of transportation, type of transportation, transportation schedules, and time required for transportation." Id.

The initial burden of proving that an offer of suitable employment was made is on the employer. LaSalle Cartage Co. v. Hampton, 362 N.W.2d 337, 341 (Minn. App. 1985). The commissioner has wide discretion to determine whether given work is suitable. Preiss v. Commissioner of Econ. Sec., 347 N.W.2d 74, 76 (Minn. App. 1984).

Both the reemployment insurance judge and the commissioner's representative concluded that a position in Minneapolis that did not allow respondent to live-in was not suitable because it was an unacceptable distance from her home in Litchfield. The work was more than 65 miles from respondent's home. Although there are no established guidelines of what distance will make a position unsuitable, but see id. (drive of 22 miles does not, in itself, render a position unsuitable), we conclude that, because of the long distance from appellant's home for a position without a live-in arrangement, the commissioner's representative did not abuse his discretion in making a determination that the position was not suitable.

We note that this is not a case in which respondent has moved from a good job market into a poorer one. See Paine v. Beek's Pizza, 323 N.W.2d 812, 816 (Minn. 1982) (worker's compensation claimant who had moved out of the metropolitan area to a less populated area had effectively and voluntarily withdrawn from the labor market, making himself ineligible for benefits). Respondent had her home in Litchfield before accepting her previous live-in position in Minneapolis.

Relator also argues that respondent should be disqualified because she returned to Litchfield without furnishing relator a forwarding address or a new telephone number. The case on which relator relies, Christensen v. Fiberite Corp., 269 N.W.2d 20 (Minn. 1978), is inapposite. That case involved a worker who knew that he needed to provide address information upon a layoff, and because of that failure to provide information, his former employer was unable to contact him to rehire him. Id. Here, respondent's failure to provide her previous employer information was immaterial, because the department was able to contact her and offer her the available position in a timely manner.

Affirmed.

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.