author: STRINGER, Justice. LANCASTER, Justice BLATZ, Chief Justice RUSSELL A. ANDERSON, Justice

text:
    In re the Matter of Benjamin G. WITSO, Respondent, v. Mary C. OVERBY, et al., Petitioners, Appellants.
    No. C6-99-1618.
    Supreme Court of Minnesota.
    June 7, 2001.

      John Robinson Hill, Larkin, Hoffman, Daly & Lindgren, Ltd., Bloomington, for appellants.
    Susan Anne Daudelin, Walling & Berg, P.A., Minneapolis, for respondent.
   OPINION

STRINGER, Justice.

Respondent Benjamin Witso (Witso) seeks custody and visitation rights with his putative child M.R.O. and petitioned under the Minnesota Parentage Act (MPA) for a court order to compel the child’s mother, appellant Mary Overby (Overby), and M.R.O. to undergo blood or genetic testing to determine whether he is a presumed biological father of M.R.O. The district court granted Witso’s petition but, on Ov-erby’s motion, certified as important and doubtful the following question as recast by the court of appeals:

Must a paternity action be dismissed for lack of standing when the petitioning putative father shows the requisite sexual contact but has not had genetic testing, which might establish the genetic basis for standing that arises from a positive genetic test?

The court of appeals answered the question in the negative and affirmed the district court. We now affirm the court of appeals.

Overby gave birth to M.R.O. on April 27, 1998. At the time of M.R.O.’s birth Over-by was married to James Overby, and therefore, by statute, James Overby is M.R.O.’s presumed biological father. Minn.Stat. § 257.55, subd. 1(a) (2000). Witso alleges however, that he and Overby became involved in a two-year extra-marital affair that included frequent sexual contact during the period in which M.R.O. was conceived and that he is M.R.O.’s biological father. He supports his claim with an affidavit asserting that he and Overby had an intimate relationship over the time period alleged and that Overby admitted that he was M.R.O.’s biological father. Overby’s responsive affidavit denies the two-year affair but admits that she and Witso had one sexual encounter that could have resulted in the conception of M.R.O. Overby denies that she told Witso that M.R.O. was his child and contends that she and her husband were trying to have a second child and had frequent sexual contact during the period in which M.R.O. was conceived. Overby maintains that James Overby is M.R.O.’s biological father.

The issue in the certified question is one of statutory interpretation and is therefore a question of law that this court reviews de novo. In re Welfare of G.L.H., 614 N.W.2d 718, 720 (Minn.2000).

The right to bring a proceeding to establish paternity is totally a creature of the MPA. In the MPA the legislature adopted, with some modifications, the Uniform Parentage Act, a comprehensive set of laws designed to provide “substantive legal equality for all children regardless of the marital status of their parents * * ⅞ [including] the sine qua non of equal rights— the identification of the person against whom these rights may be asserted.” The MPA establishes that the father and child relationship may exist regardless of the marital status of the parents. Minn. Stat. §§ 257.52, 257.53 (2000).

The MPA provides the exclusive bases for standing to bring an action to determine paternity. Morey v. Peppin, 375 N.W.2d 19, 22 (Minn.1985). Whether and when a person may bring a paternity action depends on which presumptions of paternity, if any, apply. See Minn.Stat. § 257.57 (2000). Nine presumptions of paternity are set forth in section 257.55, generally divided between those based on marriage, Minn.Stat. § 257.55, subd. 1(a)-(c) (2000), and those based on circumstances other than marriage, Minn.Stat. § 257.55, subd. l(d)-(i) (2000). Standing to bring a paternity action with respect to these presumptions is also based on statute.

The issue here is whether Witso, a putative father who is not a presumed father under section 257.55, can bring an action to require Overby, the mother, and M.R.O., the putative child, to submit to blood or genetic testing to establish whether he is a presumed father under section 257.55, subd. 1(f) when M.R.O. already has a presumed father. Section 257.55, subd. 1(f) provides that if “blood or genetic testing establishes the likelihood that he is the father of the child, calculated with a prior probability of no more than 0.5 (50 percent), is 99 percent or greater” then Witso is presumed to be the biological father. Witso thus seeks to establish a presumption of paternity in himself, and if successful, to proceed -in district court to seek custody and visitation rights with M.R.O. as provided in Minn.Stat. § 257.541, subd. 2(b) (2000). Whether he is ultimately granted any such rights is not before us.

The court of appeals held that Wit-so is a party to this paternity action under Minn.Stat. § 257.57, subd. 2(1) (2000), and as a party has the right to compel Overby and M.R.O. to submit to blood or genetic testing under Minn.Stat. § 257.62 (2000) by alleging by affidavit sufficient bases for the requisite sexual contact. Witso v. Overby, 609 N.W.2d at 621-23. The court expressed concern that its ruling might open the door to casual assertions of paternity but concluded that the affidavit requirement in section 257.62, subdivision 1(a) provided the district court with adequate discretion to determine whether a factual basis exists to reasonably conclude that there was sexual contact sufficient for conception to occur. 609 N.W.2d at 621-23.

The Overbys argue that Witso does not have standing because the phrase “declaring the existence of the father and child relationship presumed” in section 257.57, subdivision 2 requires that Witso have evidence of blood or genetic tests establishing that he is a presumed biological father before he is permitted to commence a paternity action. In effect, the Overbys argue that Witso is foreclosed from bringing an action to conduct blood or genetic tests to determine whether he is a presumed father because he does not possess test results that show he is a presumed father. We disagree, as we do not believe that the legislative scheme posits such a chicken- or-egg dilemma. If a putative father were required to be a presumed father under Minn.Stat. § 257.55, subd. 1(f), the mother could foreclose the putative father from obtaining the test results to prove paternity. Further, the terms “alleged” or “alleging” in section 257.57, subd. 2 providing for who may bring an action would have no meaning independent from the term “presumed,” clearly ignoring the important statutory distinction between the terms “alleged” or “alleging” and “presumed.”

The structure and terminology of section 257.57 also evidence a clear legislative purpose to give putative fathers, in contrast to those already presumed to be fathers under Minn.Stat. § 257.55, subd. 1 (2000), a cause of action to establish a presumption of paternity. On the one hand subdivision 1 protects marriage-based presumptions by strictly limiting those who may directly challenge the existence of a presumption of paternity based on marriage to the child, the biological mother and a man presumed, to be the child’s father by virtue of Minn.Stat. § 257.55, subd. 1(a), (b) or (c). Minn.Stat. § 257.57, subd. I. On the other hand subdivision 2 of section 257.57 expands the category of those eligible to bring an action to declare the existence or nonexistence of the father and child relationship based on evidence outside of a marriage to mothers who are not necessarily biological mothers, a personal representative of the child, public authorities charged with support of the child, a personal representative or parent of the mother or an alleged father if the mother or alleged father has died or is a minor and men alleged or alleging themselves to be the father. Minn.Stat. § 257.57, subd. 2. Importantly subdivision 2 is not limited to the class of men who can bring an action under Minn. Stat. § 257.57, subd. 1. Putative fathers alleged and alleging themselves to be fathers, but not necessarily presumed fathers — e.g., Witso — are specifically authorized to bring an action under Minn.Stat. § 257.57, subd. 2 to establish their paternity.

That an alleging father need not also be a presumed father is further evident from section 257.60, relating to who may and who must be made a party to a paternity action. The section distinguishes those presumed to be fathers from those alleging themselves to be fathers when it provides that a “man presumed to be a father under section 257.55, or a man who alleges himself to be the father” may bring an action to “declare” the existence of the father-child relationship. Minn.Stat. § 257.60(3) (2000). If a putative father brings a paternity action and the mother denies the existence of the father and child relationship, the section requires the court to make the child a party to the action. Id.

Judicial opinions from other jurisdictions have held that putative fathers of children born to women married to other men have protectable interests in establishing their paternity. In Colorado, even before it legislatively adopted a presumption of paternity based on blood or genetic testing similar to Minnesota law, the supreme court held that a putative father was denied his right to equal protection when he was prevented from proving his paternity through blood or genetic tests under the state’s parentage act. R. McG. v. J.W., 200 Colo. 345, 615 P.2d 666, 672 (1980). After the presumption was adopted, the Colorado Court of Appeals, citing R. McG. v. J.W., construed its parentage act to give a putative father standing to compel a mother and child to submit to blood or genetic testing. See In re S.R.H., 981 P.2d 199, 202 (Colo.Ct.App.1998), rev’d on other grounds sub mm., N.A.H. v. S.L.S., 9 P.3d 354, 366 (Colo.2000). Five members of the U.S. Supreme Court agreed that a biological father might have “a constitutionally protected interest in his relationship with a child whose mother is married to, and cohabiting with, another man at the time of the child’s conception and birth.” Michael H. v. Gerald D., 491 U.S. 110, 133, 136, 157, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989) (Stevens, J., concurring in the judgment; Brennan, J., with Marshall and Blackmun, JJ., dissenting; White, J., with Brennan, J., dissenting). Justice Stevens concurred in the judgment denying the putative father an opportunity to establish his paternity only after concluding that under the California statute at issue the putative father “was given a fair opportunity to show that he is [the child’s] natural father, that he developed a relationship with her, and that her interests would be served by granting him visitation rights.” Id. at 135-36, 109 S.Ct. 2333.

We conclude that a party alleging he is a child’s father has standing to bring a paternity action under section 257.57, subdivision 2 to compel blood or genetic testing as provided in section 257.62, subdivision 1 even though he does not at the time the action is commenced possess blood or genetic tests that establish he is the child’s presumed father under section 257.55, subdivision 1(f). Witso thus has standing to bring this paternity action.

Our conclusion does not open the door to unfettered challenges to the sanctity of marriages, family unity and parent-child relationships. By vesting in the courts the safeguard of a judicial determination that a putative father has asserted by affidavit sufficient grounds to determine that sexual contact occurred between him and the child’s mother that could reasonably have resulted in the child’s conception as provided in Minn.Stat. § 257.62, subd. 1 (2000) additional protection is provided against frivolous claims of paternity and a balance is achieved between the interests in the preservation and protection of familial relationships and the interests of the putative father to establish his paternity. In any event, here Overby has admitted that she had sexual contact with Witso that could have resulted in the conception of M.R.O. — thus there is no question that Witso’s affidavit alleges sufficient facts establishing requisite sexual contact.

Finally, we note again that even if blood or genetic tests show that Witso is M.R.O.’s presumed biological father under section 257.55, subd. 1(f), James Overby is also a presumed biological father based on his marriage to Overby at the time of M.R.O.’s birth. Section 257.55, subdivision 2 requires the court to weigh the conflicting presumptions, and “the presumption which on the facts is founded on the weightier considerations of policy and logic controls.” Minn.Stat. § 257.55, subd. 2 (2000). Thus, even though Witso may establish a presumption of biological fatherhood, whether he should be granted custodial or visitation rights with respect to M.R.O. is for an independent determination later to be made by the district court. We affirm the court of appeals and answer the certified question in the negative.

Affirmed.

LANCASTER, Justice

(dissenting).

Because the majority has fundamentally misconstrued the Minnesota Parentage Act and reached a result not contemplated by the statute, I respectfully dissent. As I read Minn.Stat. § 257.57, subd. 1(a) (2000), Benjamin Witso has no standing to bring a cause of action to challenge James Over-by’s marital presumption of paternity. Furthermore, absent a presumption in Witso’s favor, he cannot bring suit to declare his own paternity under Minn.Stat. § 257.57, subd. 2(1) (2000). Neither Minn. Stat. § 257.60 (2000) (discussing who may be party to an action but not addressing who has standing to bring an action) nor Minn.Stat. § 257.62 (2000) (allowing a party to a paternity suit to request blood testing) changes the fact that Witso does not have standing to bring an action to establish a father and child relationship between himself and M.R.O.

Although Witso allegedly seeks only to declare the existence of his paternity under Minn.Stat. § 257.57, subd. 2, as opposed to challenging Overby’s presumption of paternity under section 257.57, subdivision 1, it is necessary to consider both subdivisions to clarify the error in the majority’s reading of the statute. Section 257.57, subdivision 1, reads in relevant part:

A child, the child’s biological mother, or a man presumed to be the child’s father under section 257.55, subdivision 1, paragraph (a), (b), or (c) may bring an action:
(b) For the purpose of declaring the nonexistence of the father and child relationship presumed under section 257.55, subdivision 1, paragraph (a), (b), or (c) [only within certain time limitations].

As described by the majority, Minn.Stat. § 257.55, subd. l(a)-(c), discusses the presumptions of paternity based on marriage. Thus, section 257.57, subdivision 1, allows only “a man presumed to be the father” under a marital presumption to bring suit to declare the nonexistence of his own or another man’s marital presumption of paternity. Because Witso has no marital presumption in his favor, he has no standing under subdivision 1 to challenge James Overby’s marital presumption.

There is a very clear policy reason for this limitation on the ability to challenge a marital presumption; once a family unit has been established, it is very often in the best interests of the child to leave it undisturbed. See Michael H. v. Gerald D., 491 U.S. 110, 124, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989) (“[T]he institution of the family is deeply rooted in this Nation’s history and tradition.”); see also In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331, 335 (1989) (recognizing, in a UPA state, “the ancient presumption of the legitimacy of a child born in wedlock is one of the strongest presumptions known to the law”); B.H. v. K.D., 506 N.W.2d 368, 376 (N.D.1993) (“[PJarenting and the family unit are important considerations worthy of constitutional protection.”). Even if, as the majority implies, an unmarried man like Witso could have a due process interest in a father-child relationship where there is already a presumed father in place, that interest would not arise when he has nothing more than a biological relationship. See generally Michael H., 491 U.S. at 133, 136, 157-58, 109 S.Ct. 2333 (Stevens, J., concurring in judgment; Brennan, J., with Marshall and Blackmun, JJ., dissenting; White, J., dissenting) (agreeing that a biological father might have a constitutionally-protected interest in his relationship with a child whose mother was married to another man at the time the child was born). Rather, “an unwed father’s biological link to his child does not, in and of itself, guarantee him a constitutional stake in his relationship with that child, [but] such a link combined with a substantial parent-child relationship will do so.” 491 U.S. at 142-43, 109 S.Ct. 2333 (Brennan, J., with Marshall and Blackmun, JJ., dissenting). Here, the record contains no evidence demonstrating the existence of a “substantial parent-child” relationship. In any event, Witso never raised a due process or equal protection argument and therefore conjecture like that engaged in by the majority today is fruitless.

Minnesota Statutes § 257.57, subd. 2, also does not give Witso standing to bring suit to declare the existence of his own father and child relationship with M.R.O. Subdivision 2 states:

The child, the mother, or ⅜ * * a man alleged or alleging himself to be the father * * * may bring an action:
(1) at any time for the purpose of declaring the existence of the father and child relationship presumed under section 257.55, subdivision 1, paragraph (d), (e),(f),(g),or(h)* * *.

Witso and the majority would have us believe that section 257.57, subdivision 2(1), gives Witso, a man “alleging himself to be the father,” standing to obtain blood tests and establish a section 257.55, subdivision 1(f), genetic testing presumption of paternity in himself. But this interpretation ignores the explicit language of section 257.57, subdivision 2, which allows any putative father to bring an action to declare the existence of “the father and child relationship presumed under section 257.55.” Minn.Stat. § 257.57, subd. 2(1) (emphasis added). The use of “the father and child relationship” instead of “a father and child relationship” indicates that the statute is referring to a specific preexisting presumed relationship. Section 257.57, subdivision 2, thereby requires that Wit-so’s genetic testing presumption must have existed before he could have standing to declare the existence of a father and child relationship based on that presumption. Because Witso does not have that preexisting presumption, he has no standing to bring the instant suit.

The majority’s characterization of this plain reading interpretation as creating a “chicken-or-egg dilemma” not only glosses over the statutory significance of each section, but also usurps the legislature’s rightful role in setting public policy. The majority is wrong, I believe, in failing to acknowledge that important public policies are advanced by Minnesota’s legislative adaptation of the UPA. The North Dakota Supreme Court recognized those policies when interpreting North Dakota’s parentage statute, which is also based on the UPA and recognizes a paternity presumption based on genetic testing. B.H. v. K.D., 506 N.W.2d at 373-75. Like the present case, B.H. v. KD. involved a man who had no presumptions in his favor but alleged to be the father of a child who already had a presumed father based on a marital presumption. Id. at 370. The alleging father moved the district court to order blood tests in order to aid him in proving his paternity. Id. Interpreting statutory provisions strikingly similar to those now before this court, the North Dakota Supreme Court held:

There must be genetic tests already in existence which satisfy the statistical qualifications of the statute. Without the requisite test results, an individual like [the alleging father] cannot bring such an intrusive action, disrupting an established family, hoping that tests ordered by the court will subsequently vest him with standing to proceed. Too much irreparable damage will have occurred to the family in the meantime; the potential for abuse is too great.

Id. at 375.

The error of the majority’s decision is further shown by Minn.Stat. § 257.57, subd. 3 (2000). Subdivision three permits an action to determine the existence of a father and child relationship when the child has no presumed father. Under subdivision 3, a putative father would not attempt to “dedar [e ] the existence of the father and child relationship presumed under section 257.55” as in subdivisions one or two,. but would bring “[a]n action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 257.55.” Minn.Stat. § 257.57, subd. 3 (emphasis added). While making much of the difference between “presumed” and “alleged” in the MPA, the majority ignores the differences between “determine” and “declare” as used within section 257.57. A party bringing an action to “declare” the existence of a father and child relationship presumed in section 275.55 seeks to “make known clearly or officially” the preexisting factual presumption. Roget’s 21st Century Thesaurus 201 (2d ed.1999). In contrast, an action to “determine” the existence of a father and child relationship suggests a process of discovering whether such a relationship; and thus a presumption, exists. See id. at 222 (listing “discover” as synonym to “determine,” but not listing “declare”). In any event, Witso can bring neither action because in the first instance (under section 257.57, subd. 2(1)) he has no preexisting presumption in his favor, and in the second instance (under section 257.57, subd. 3) a presumed father already exists.

Although the majority attempts to interpret sections 257.60 and 257.62 to support its holding, the majority’s reading is again in error. The Overbys accurately point out that the carefully constructed MPA sets forth in section 257.57 when a putative father has standing to bring suit; then in section 257.60 when a putative father maybe made party to a suit; and, finally, in section 257.62 when a party to a suit may seek genetic testing. The court looks to statutory sections as a whole in construing each part of the statute. See Lenz v. Coon Creek Watershed Dist., 278 Minn. 1, 11-12, 153 N.W.2d 209, 217-18 (1967) (noting that when construing a provision of a statute, courts should look beyond the words of the provision and look to section as a whole); In re J.A.V., 547 N.W.2d at 376 (stating that the adoption, parentage, and termination of parental rights statutes involve a common thread and must be interpreted consistently in conjunction with one another). Minnesota Statutes § 257.60, which states that “each man presumed to be the father under section 257.55, and each man alleged to be the biological father, shall be made parties,” does not independently enable putative fathers to single-handedly disrupt the family relationship. Rather, it must be read in conjunction with section 257.57, which limits the situations in which a man without any .presumptions in his favor has standing to bring a paternity suit in the first place. Taking sections 257.57 and 257.60 together, it is clear that a putative father, like Witso, could be a party to a suit under section 257.60 without having any presumptions of paternity in his favor, but it does not follow that the putative father automatically has standing to bring suit under section 257.57, subd. 2. As the MPA is written, a putative father must satisfy certain conditions before bringing suit that are not prerequisites for becoming a party to a suit.

Ignoring this distinction, the majority concludes that because Witso is a proper party under its reading of section 257.57, subdivision 2(1), he can seek genetic testing under section 257.62. Section 257.62 states in pertinent part: “The court or public authority may, and upon request of a party shall, require the child, mother, or alleged father to submit to blood or genetic tests.” Minn. Stat § 257.62, subd. 1(a) (emphasis added). I agree with the majority that only a party to a suit may seek genetic tests, but I cannot agree that Witso is a proper party to the instant suit. Because Witso did not have standing under section 257.57 to bring this suit and because he has not been made a party to a suit brought by another, section 257.62 does not give Witso the right to seek blood testing.

Furthermore, the majority denies that its holding creates the potential for abuse by “open[ing] the door to unfettered challenges to the sanctity of marriage” and asserts that baseless and intrusive paternity challenges will not follow from its holding because section 257.62, subdivision 1, requires a putative father who is requesting genetic tests to file an affidavit alleging facts regarding sexual contact with the mother at the relevant time. Contrary to the majority’s assertions, section 257.62 does not provide an adequate safeguard against the very real potential for abuse of today’s holding. Any man with an affidavit claiming that he had sexual contact with the mother during the period of conception may, after today’s opinion, intrude upon an established family unit. Minn. Stat. § 257.62, subd. 1(a) (“A mother or alleged father requesting the tests shall file with the court an affidavit either alleging or denying paternity and setting forth facts that establish the reasonable possibility that there was, or was not, the requisite sexual contact between the parties.”). Although the majority emphasizes that in this case Mary Overby admitted the sexual contact, it is irrelevant under section 257.62 whether the mother admits or denies the contact. Id.

Finally, even if the mother admits the sexual contact, the majority’s reading, taken to its logical conclusion, would give any man who raped the mother standing to obtain blood tests and therefore assert his paternity of the resulting child. See Minn.Stat. § 257.62, subd. 1(a). If the legislature had meant for this statute to create such an intrusive and extreme result, surely it would have stated so explicitly. See In re J.A.V., 547 N.W.2d at 377 (stating that, if the legislature had intended to radically change the parent-child relationship, “it surely would have done so in language of greater clarity than we find here.”). See generally Michael H., 491 U.S. at 124 n. 4, 109 S.Ct. 2333 (recognizing the grave problems with giving a rapist a liberty interest in establishing a father and child relationship with a child potentially begotten by rape). Because I cannot see that the legislature intended the result at which the majority arrives, I must dissent.

BLATZ, Chief Justice

(dissenting).

I join in the dissent of Justice Lancaster.

RUSSELL A. ANDERSON, Justice

(dissenting).

I join in the dissent of Justice Lancaster.

      . The MPA is codified in Minn.Stat. §§ 257.51-.74 (2000).

      . Unif. Parentage Act, 1973 Prefatory Note, 9B U.L.A. 289 (1987).

      . Standing to bring a paternity action is provided in Minn.Stat. § 257.57, subds. 1-3 (2000). Subdivision 1 provides standing with respect to presumptions based on marriage, subdivision 2 provides standing with respect to presumptions based on evidence other than marriage and subdivision 3 provides standing when there is no presumption.

      . Minnesota Statutes § 257.57, subd. 2 (2000) provides:
      The child, the mother, or * * * a man alleged or alleging himself to be the father, ⅜ ⅞ ⅛ may br;ng an action; at any time for the purpose of declaring the existence of the father and child relationship presumed under section 257.55, subdivision 1, paragraph (d), (e), (0, (g), or (h), or the nonexistence of the father and child relationship presumed under clause (d) of that subdivision ⅜ * *.
      The court of appeals states that Minn.Stat. § 257.57, subd. 1(b) limits the time one can use blood or genetic tests to challenge a marriage-based presumption to no more than three years after the child is born. Witso v. Overby, 609 N.W.2d 618, 622-23 (Minn.App.2000). The court is correct in so far as a child, biological mother or presumed father under Minn.Stat. § 257.55, subd. 1(a), (b), or (c) may not use blood or genetic tests to declare the nonexistence of the presumed father’s paternity after three years have passed since the child's birth. But that section would not prevent a putative father from bringing an action to declare his competing presumption of paternity.

      .Minnesota Statutes § 257.62, subd. 1(a) provides:
      The court or public authority may, and upon request of a party shall, require the child, mother, or alleged father to submit to blood or genetic tests. A mother or alleged father requesting the tests shall file with the court an affidavit either alleging or denying paternity and setting forth facts that establish the reasonable possibility that there was, or was not, the requisite sexual contact between the parties.

      . Minnesota Statutes § 257.57, subd. 1 provides:
      A child, the child's biological mother, or a man presumed to be the child's father under section 257.55, subdivision 1, paragraph (a), (b), or (c) may bring an action: (a) At any time for the purpose of declaring the existence of the father and child relationship presumed under section 257.55, subdivision 1, paragraph (a), (b), or (c);

      . The dissent contends that the use of the word “the” in “the father and son relationship” in section 257.57, subd. 2(1) instead of the word “a” indicates that the statute refers to a specific preexisting presumed relationship. The use of "the” rather than "a” establishes nothing of the kind, as the use of the term “a” would suggest multiple fathers.
      The dissent also seeks to support its position by suggesting that “declare” in “declare the existence of the father and child relationship presumed under section 257.55” in section 257.57, subd. 2(1) must imply the preexistence of a presumption of fatherhood because subdivision 3 uses the word "determine” rather than "declare” in "determine the existence of the father and child relationship with respect to a child who has no presumed father under section 257.55 * * Minn.Stat. § 257.57, subd. 3 (2000). The difference in meaning between "declare” and “determine” in this context is de minimis — certainly insufficient to support the dissent's posilion. First, the definitions of the terms overlap making a distinction based on the dictionary or thesaurus tenuous at best. "Declare” can mean to "make evident or give evidence of”; "determine” can mean "to fix conclusively or authoritatively.” Webster’s Third New International Dictionary 586, 616. (1961). Second, even assuming that the terms differ in meaning, they are not necessarily mutually exclusive. A determination may be made as part of a declaration of legal rights and status. Finally, unlike the terms "alleged/alleging” and "presumed”, the terms "declare” and "determine” are not used in contradistinction to each other in the Parentage Act.

      . Minnesota Statutes § 257.60 (2000) provides: "The child shall be made a party whenever: * * * (3) an action to declare the existence of the father and child relationship is brought by a man presumed to be the father under section 257.55, or a man who alleges to be the father, and the mother of the child denies the existence of the father and child relationship.”

      . Section 257.62 as originally enacted required the court to order a mother or child to submit to blood or genetic testing upon the request of a party to the action. Minn.Stat. § 257.62, subd. 1 (1980). In 1997 the legislature amended section 257.62, subd. 1 by adding: "A mother or alleged father requesting the tests shall file with the court an affidavit either alleging or denying paternity and setting forth facts that establish the reasonable possibility that there was, or was not, the requisite sexual contact between the parties.” Act of May 29, 1997, ch. 203, art. 6, § 21, 1997 Minn. Laws 1587, 1766.

      . The dissent's concern that the court's holding may be abused by a rapist or any man armed with an affidavit is overstated. The trial court clearly has discretion to determine whether the affidavit meets the statutory requirement in section 257.62, subd. 1. In any event however, it is not for this court to interpret a statute to mean something different than what the legislature clearly intended in order to avoid a potential abuse in a hypothetical circumstance not before the court. As noted above, the statutory framework establishes the putative father’s right to obtain blood and genetic testing subject to statutory preconditions, and those preconditions are met in the matter before the court.

      . This is not to say that a putative father would never have standing to declare the existence of his, or another’s, paternity. Section 257.57, subdivision 2, gives any putative father standing to declare the existence or nonexistence of his own paternity if there are preexisting facts — such as a signed recognition of parentage or evidence that the putative father received the child into his home and held the child out as his biological child— indicating the putative father was a presumed father. A putative father without a presumption in his favor could also bring suit if he were seeking to declare the nonexistence of another man’s presumption of paternity based on that man’s blood tests or recognition of parentage. Other portions of the MPA also confirm that a putative father will have standing to bring a paternity suit in certain circumstances. Minn.Stat. § 257.60 (2000) ("The child shall be made a party whenever * * * (3) an action to declare the existence of the father and child relationship is brought by a man presumed to be the father under section 257.55, or a man who alleges to be the father * ⅝ The facts 0f ⅛⅛ case (j0 not present one of those circumstances.

      . This distinction is highlighted in other states’ parentage acts. In Colorado, tor instance, "[ajny interested party ⅜ * ⅜ may bring an action at any time for the purpose of determining the existence or nonexistence of the father and child relationship” under the nonmarital presumptions. Colo.Rev.Slat. § 19-4-107, subd. 2 (2000) (emphasis added). However, only the mother, child, or presumed father may bring an action to “deciar [e ] the existence” or nonexistence of a father-child relationship under the marital presumptions. Id., subd. l(a)-(b) (2000).

      . Another Daw in the majority’s analysis is that it finds no difference between section 257.57, subd. 2(1), and subd. 3; a putative father with no presumpLions in his favor and facing no presumptions in another could, without limitation on time or circumstance, bring an action to obtain genetic testing under either subdivision. The problem with this interpretation is, of course, that it renders either subdivision 2(1) or subdivision 3 superfluous in this circumstance despite this court’s well-settled practice of assuming that statutes are not extraneous. See In re Paternity of J.A.V., 547 N.W.2d 374, 376 (Minn.1996) ("We are guided by the principle that [statutes governing the parent and child relationship] must be applied in a manner that is internally consistent * * ⅜ and assuming that each statutory provision has a purpose.”).

      . The statute could not be otherwise, of course; if men alleged to be the father could not be parties, no mother or child could ever seek to prove the alleged father's paternity or ensure that, upon determination of a biological relationship, the responsibilities of fatherhood were enforced.

      . This point was conceded at oral argument.


source: Caselaw Access Project

author: BLATZ, Chief Justice.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Thomas Daniel RHODES, Appellant.
    No. C3-98-1839.
    Supreme Court of Minnesota.
    June 7, 2001.

      Douglas W. Thomson, Melissa M. Fraser, Lisa Lodin Peralta, St. Paul, for appellant.
    Michael Hatch, Minn. Atty. Gen, Thomas R. Ragatz, Asst. atty. Gen., St. Paul, Boyd Beccue, Kandiyohi County Atty., Willmar, for respondent.
   OPINION

BLATZ, Chief Justice.

This case comes before us on appeal from appellant Thomas Rhodes’ conviction for the first- and second-degree murder of his wife and the postconviction court’s subsequent denial of postconviction relief. Appellant argues that he received ineffective assistance of counsel at trial, that the district court erroneously admitted certain prejudicial evidence, and that the district court improperly denied appellant’s request for a new trial based on newly discovered evidence. Appellant further contends that the evidence was insufficient to support his conviction and that the post-conviction court improperly denied his request for an evidentiary hearing and a new trial based on his ineffective assistance of counsel claim. We conclude that the district court did not err in admitting the disputed evidence, but remand for an evi-dentiary hearing on two of appellant’s three postconviction ineffective assistance of counsel claims. Because we deem the record incomplete at this time, we decline to decide the other issues appellant has raised.

On the night of August 2, 1996, appellant and his wife Jane were vacationing with their two sons at the Northern Inn near Spicer, Minnesota. The inn is located at the southwest corner of Green Lake. Between approximately 11:15 and 11:30 p.m., the Rhodes left their sons in the inn room and drove the family jet boat onto the lake. Appellant told investigators that he drove the boat in a northerly direction from the dock by the inn, then stopped the boat and began watching the stars and “necking” with his wife. At some point, he and Jane allegedly saw a boat with no lights driving wildly to their south. To escape the boat and “take a spin” before heading back, appellant drove further north at about 40 miles per hour.

As he was driving, appellant glanced to the left and saw Jane get up from her seat. She appeared to be looking for something, which appellant believed to be an earring. A clip-on earring was later found in the boat. Continuing north on the lake, appellant looked back again and “saw [Jane’s] leg or her tennis shoes go over” the edge of the boat. It is undisputed that Jane was not wearing a life jacket and was not a good swimmer.

In a police interview 2 weeks after the drowning, authorities asked appellant what he did when Jane fell in the water. Appellant responded:

I went to grab for the throttle and— and missed it the first time. And then I pulled it back, started to turn, and then accelerated and went right back to where I thought — thought she was, and I couldn’t see her. I stood up on the— the — the deck. And she’s not by any means a good swimmer, so I got in the water to see if I could rescue her, and I couldn’t find her.

According to appellant, he then got back in the boat and began zigzagging toward the south, then back to the north, searching for his wife. Not finding her or getting any response when calling her name, appellant drove toward shore. He parked his boat facing toward the lake, tied the boat to the dock, and grabbed a sweatshirt from the boat. Because Little Melvin’s, a bar located in the budding closest to the dock, appeared to be closing, appellant went back to the Northern Inn for help. However, the bouncer at Little Melvin’s who saw appellant dock his boat and walk past Little Melvin’s testified at trial that light was coming from the bar and a band was playing. In the bouncer’s view, appellant did not seem agitated as he walked toward the inn.

At the inn, a desk clerk who described appellant as “emotionally distressed,” incoherent, and “wet from head to toe,” tried to understand appellant’s story and eventually called 911. When Kandiyohi County Deputy Randall Kveene arrived, appellant told him, as he repeatedly told deputies in the following weeks, that he had been about 1,000 yards north of Little Melvin’s when Jane went overboard. Despite this statement, appellant directed Kveene only 400-500 yards northeast of the dock after they boarded appellant’s boat. When Kveene asked if the location was correct, appellant responded that the search should move a little farther north. Kveene and appellant searched the area within about 100 yards of the location appellant first identified until others joined the search 20 to 25 minutes later. At that time, another deputy asked appellant if they were in the right spot. After appellant responded affirmatively, the deputy marked a last-seen point.

After the unsuccessful search was called off for the night, appellant talked with Pastor Perry Wieland, a member of the local volunteer ambulance service who had been participating in the rescue efforts. Appellant’s narrative to Wieland was consistent with what he had told law enforcement authorities, except Wieland believed that appellant said he was driving slowly, rather than quickly, when Jane went overboard.

The search resumed the next morning, August 3. Appellant again told the sheriff that the search party should move north. This time the search moved approximately 2,000-3,000 feet north. At about 1:00 p.m., fishermen found Jane’s body in an area nine-tenths of a mile northwest of the last-seen point appellant had identified.

The recovery location was four-tenths of a mile or less from the locations where seven different shore witnesses had watched a person driving his boat in fast, erratic, figure-eight patterns at about the time Jane allegedly went overboard. Although none of the witnesses could identify the parties in the boat and five of the witnesses testified that they heard voices from the boat that sounded like people having fun, one of the witnesses heard a woman’s voice say “Stop. No. It hurts.” more than once. None of the witnesses recalled seeing more than one boat on the lake at the relevant times. Two witnesses identified the boat as a light-colored two-tone boat with an inboard motor, which matches the description of appellant’s boat. Those two witnesses later saw a male driver circling the same boat, and one commented to the other that “[h]e acts like he’s looking for something.” After watching for a while, the two observed the boat head south down the shoreline at a slow pace.

To support a theory that appellant intentionally misdirected authorities so they would not discover Jane’s body or any evidence that appellant intentionally drowned her, the state offered the testimony of Patrol Captain William Chandler of the Hennepin County Sheriffs Office.

Chandler found it improbable that a body could sink in Green Lake, resurface, and then float nine-tenths of a mile in thirteen hours. He also thought it unlikely that the body could have remained afloat without a life jacket or, even if it did, that trained observers would overlook a body floating on the water. Chandler therefore identified a point near the location where the shore witnesses watched a boat being driven erratically as the likely place Jane went overboard. In response to Chandler’s testimony, Dale Morry, a boating accident reconstructionist and former state boating administrator, testified for the defense that a body floating just beneath the water’s surface could easily elude searchers, especially if wind and wake action caused the body to float a long distance.

Some of the most critical evidence supporting the state’s theory was testimony from medical experts indicating that Jane’s death was not accidental. The first medical expert who examined Jane’s body was Dr. Lyle Munneke, a Kandiyohi County medical examiner. Upon examination, Dr. Munneke noted that bruising covered Jane’s forehead and nose, left and right sides of her face, and the underside of her hairline to the top of her head. Dr. Mun-neke also observed a cut on the right side of her mouth.

In addition to the injuries Dr. Munneke observed, Dr. Michael McGee, the forensic pathologist who performed the autopsy, found hemorrhaging beneath the facial injuries. Dr. McGee believed that these injuries occurred while Jane was alive, and used a life-sized clay model of Jane’s head to demonstrate that “a single blow” probably did not cause the damage to both sides of Jane’s face. Dr. McGee answered in the affirmative when asked whether multiple strikes from a boat hull — possibly appellant’s — could have caused the injuries.

Dr. McGee also testified about Jane’s other injuries. He stated that the laceration on the side of her mouth was premor-tem and could have occurred when a boat hit her mouth and stretched it to the point of tearing. Furthermore, he explained that postmortem abrasions on the backs of her hands and forehead may have been caused by her body sinking and scraping the bottom of the lake while floating face down.

Dr. McGee’s testimony undercut appellant’s theory that the drowning was accidental. Specifically, Dr. McGee noted paired injuries to the upper forearms that he classified as defensive wounds and soft tissue hemorrhages inside the neck region that did not have corresponding external marks. When asked about the neck trauma, Dr. McGee testified:

Q. Could that have been done by the hull of a boat?
A. I think not.
Q. Could that have been done with a hand, in particular a hand used thus in the V position?
A. I believe that is possible, yes.

Taken as a whole, Dr. McGee’s testimony reinforced the state’s theory that appellant forced his wife overboard. His testimony was also consistent with Chandler’s testimony that because Jane’s body resurfaced nine-tenths of a mile from the last-seen point, she probably sank to the lake bottom after drowning at a location different than appellant identified.

For the defense, Dr. Lindsey Thomas, an assistant coroner and assistant medical examiner, agreed that the head injuries were premortem. However, she testified that Jane’s face had internal hemorrhaging on both sides because the blood from the forehead injury drained into her face, not because multiple blows followed the contour of her head as Dr. McGee suggested. Dr. Thomas also testified that a bruise on Jane’s leg and the neck injuries were consistent with Jane hitting the side of the boat and water as she fell overboard. Lastly, Dr. Thomas stated that the forearm bruises were unlikely defensive wounds, but, like the forehead injury, may have been caused by bumping into the underside of the boat.

The state also sought to prove motive. The state first introduced evidence of an alleged extramarital affair in order to show that the Rhodes’ marriage was unstable. Kathy Mason admitted to having a nonsexual relationship with appellant from approximately January to July of 1995, or about 1 year before Jane’s death. Mason testified that she and appellant met once a week or three times a month and that she and appellant once went to a motel, where they hugged and kissed, talked, played cards, and drank champagne. Mason claimed that appellant ended the relationship in mid 1995 because he wanted to work on his marriage.

In addition, attorney C. Andrew Johnson testified that he met with appellant and Jane in May 1995 about a possible divorce, and that he calculated the amount of child support each spouse would have to pay the other if only one had custody of the children. Johnson testified that he told the Rhodes that appellant would have to pay $650 or $742 in child support out of his $2400 net monthly income. After this meeting, the Rhodes never again met with Johnson about a divorce.

Finally, a certified public accountant and director of investigations in the Minnesota Attorney General’s Office testified regarding the Rhodes’ recently increased debt accumulation and their newly acquired life insurance policies covering Jane’s death. The accountant testified that the Rhodes’ debt load nearly doubled between November 1995 and July 1996, largely because the Rhodes bought a new house and upgraded their car and boat. He further testified that the Rhodes had $233,135 in life insurance payable in the event of Jane’s accidental death. Of that total, approximately $102,000, which consisted of credit life insurance on the Rhodes’ new mortgage, boat, and automobile, were purchased in the 4 months preceding Jane’s death. On July 26, 1996, the Rhodes applied for $50,000 in additional term life insurance on Jane, but that policy never took effect because the insurance company received the application after her death. Taking all this evidence together, the state theorized that appellant planned his wife’s death because he could not afford the divorce he desired and would obtain substantial insurance benefits if she died.

After a 12-day trial, the jury convicted appellant of murder in the first and second degree. Alleging insufficient evidence and newly discovered evidence, appellant brought a motion for a new trial. Appellant’s newly discovered evidence claim was based on the affidavit of Brian Hunter, a guest at the Northern Inn on the night of August 2, 1996. In his affidavit, Hunter claimed that he was walking on the beach with his girlfriend when he observed a boat circling before approaching shore at a high rate of speed, and then saw appellant running from his boat to the inn. Hunter also stated that he and his girlfriend walked to the Northern Inn where, as they walked through the lobby, he saw appellant talking to the inn clerk in a “hysterical” manner that was hard to understand. He claimed that he learned the next day that a body had been found, but did not discover until a visit to the Northern Inn nearly 2 years later that appellant had been charged with a crime.

In denying appellant’s motion for a new trial, the district court concluded that Hunter’s information was “inherently doubtful” because: (1) No trial testimony indicated the presence of other people while appellant was explaining his wife’s disappearance to the Northern Inn clerk; (2) Hunter “never followed up as to the status of the overboard person”; (3) Hunter did not come forward with information the day after the drowning, even though a “command post” had been set up on the beach for this purpose; and (4) Hunter’s recollection was dubious because 2 years had passed since he witnessed these events. The court also concluded that even if Hunter’s testimony was credible, it was “not likely to produce a more favorable outcome” if a new trial was granted because the testimony “covers only the time where he allegedly viewed a boat driving on Green Lake until he saw Thomas Rhodes in the hotel lobby.” Upon denial of his motion for a new trial, appellant filed a notice of appeal with our court, but moved for a stay of appeal and remand so he could bring a petition for postconviction relief. The motion was granted.

In his petition for postconviction relief, appellant argued that his attorney erred in failing to seek a change of venue. In support of this claim, appellant pointed out that many of the potential jurors had heard something about an August 1996 drowning on Green Lake. Appended to his petition were numerous newspaper articles and transcripts of radio clips regarding the drowning and trial, as well as appellant’s own affidavit stating that he had repeatedly asked his attorney to seek a change of venue. Appellant also submitted an affidavit from his mother, stating that appellant’s attorney told her just before the jury’s verdict was returned that “this was probably one of the rare cases in which he should have requested a change of venue.”

Appellant also presented an affidavit and supporting medical articles from Dr. John Plunkett, a certified forensic pathologist, to show that Dr. McGee’s testimony was “contrary to accepted medical authority.” Appellant further argued that defense counsel’s lack of cross-examination of Dr. McGee and failure to object to his “speculative” testimony constituted ineffective assistance of counsel. First, contrary to Dr. McGee’s affirmative response to the question whether Jane’s neck injuries may have been caused by a hand in “the V position,” Dr. Plunkett stated that “[t]he injuries to Jane Rhodes [sic] neck musculature probably occurred as a result of the hyperextension and overexertion of the neck muscles which occurs during the process of drowning and the struggle for survival.” Dr. Plunkett further concluded:

The injuries to Jane Rhodes’ neck musculature may also be attributed to one or more of the following causes: hypostatic change, post-mortem leakage of venous blood, post-mortem traumatization and breaking of the cadaveric rigidity during recovery or transport of the corpse, extravasation of blood into the tissue spaces as a result of the handling of organs and the incision of vessels during routine post-mortem examinations.

(Footnote added.)

Several law and medicine journal articles submitted to the postconviction court along with Dr. Plunkett’s affidavit supported this conclusion. In one article studying cases involving hemorrhage to the neck musculature that, like Jane’s, showed no obvious neck compression or trauma, the authors concluded that victims’ efforts to save themselves may well result in such injuries and stated that “[i]n the absence of direct trauma to the neck, most cases of anterior neck hemorrhage appear to result from either hypostatic change” or dissection procedures. N. Carter et al., Problems in the Interpretation of Hemorrhage Into Neck Musculature in Cases of Drowning, 19(3) Am. J. of Forensic Med. & Pathology 223, 225 (1998).

Several other articles were submitted in support of the possibility that breaking rigor mortis during the recovery or transport of a corpse may cause hemorrhages in neck musculature. In one article, the authors concluded that such hemorrhage occurred in a case involving a suicide by drowning. Thomas Sigrist & Walter Ra-bie, Hemorrhages in Skeletal Muscle — Vital or Post Mortem?, 3 Rechtsmedizin 94, 95 (1993).

Dr. Plunkett also concluded that the injuries to Jane’s forearms and face, which Dr. McGee characterized as “defensive wounds” and the result of “multiple blows,” respectively, were consistent with floating along the lake bottom face down. Although part of one of the articles attached to Dr. Plunkett’s affidavit was produced by the prosecution in discovery, the defense never introduced at trial the portion of the article stating that injuries resulting from floating in this manner should not be confused with defensive wounds.

Finally, appellant resubmitted Brian Hunter’s earlier affidavit in support of his claim that trial counsel was ineffective in failing to conduct an adequate pretrial investigation. Specifically, appellant argued that his counsel should have taken the reasonable steps of obtaining the list of guests registered at the Northern Inn on August 2 or 3, 1996, and contacting them. Appellant suggested that had this been done, counsel would have discovered that Hunter had relevant information rebutting the state’s theory while supporting appellant’s theory.

The postconviction court dismissed appellant’s petition for postconviction relief without holding an evidentiary hearing. In the memorandum accompanying its order for dismissal, the court concluded that appellant’s complaints about trial counsel’s failure to make evidentiary objections and seek a change of venue were matters of trial strategy. As to the venue claim, the court noted that it was “purely speculative” to say whether a jury in a different county might have reached a different result, especially when each member of the jury panel was carefully examined during voir dire. The court also noted that Dr. Plunkett’s testimony would be “cumulative” to those opinions offered by Drs. McGee and Thomas and was not newly discovered evidence. Because Dr. Plunk-ett was a co-worker of the defense’s medical expert, the court concluded that his opinions were discoverable at the time of trial. While the court did not separately address appellant’s claim regarding his trial counsel’s failure to investigate, it did state that the “advocacy demonstrated in this case on each side was vigorous, thorough, and effective.”

Appellant subsequently brought a motion for reconsideration, claiming that the postconviction court’s failure to conduct an evidentiary hearing on his ineffective assistance of counsel claim was erroneous. In support of this motion, appellant produced additional affidavits. First, appellant submitted a second affidavit from Hunter that supplemented his affidavit submitted in support of the motion for a new trial. For the first time, appellant also submitted a corroborating affidavit from Nichole Bau-man, Hunter’s girlfriend who accompanied him to the Northern Inn in August 1996. Lastly, appellant offered affidavits from two defense attorneys who supported appellant’s ineffective assistance of counsel claim. One of the defense attorneys emphasized the importance of the Hunter and Bauman testimony:

Their testimony * * * presented a stark alternative to the prosecution witnesses. Ms. Bauman and Mr. Hunter indicated they observed five or six boats on the lake during the critical time period, and also observed Mr. Rhodes come straight into the dock and run to the Northern Inn, where shortly thereafter they noticed him explaining that his wife had fallen in the lake. His emotion bordered on the hysterical, consistent with someone who has been in an accident and who has lost a loved one. This testimony would have countered ⅜ ⅜ * the State’s theory that Mr. Rhodes remained rather clinical and abstract not only in his walk to the hotel but in his explanation of what occurred. The number of boats on Green Lake is also critical in that the testimony of the state’s witnesses indicated a sole boat on what is a large lake, in the middle of the summer.
The testimony * * * would have also undercut the prosecution’s main witness, and only witness, who said she heard a voice screaming, “Stop. No. It hurts.”

In addition to recounting what they had witnessed, the Hunter and Bauman affidavits addressed the district court’s question, raised in its memorandum denying the motion for a new trial, as to why Hunter did not come forward earlier. Both Hunter and Bauman stated that they thought the drowning was accidental and that they were unaware of the ensuing murder charges.

The expert defense attorneys’ affidavits also supported appellant’s claim that an objectively reasonable level of representation at trial would have involved the introduction of other, medically-sound explanations for the injuries Dr. McGee believed were the result of “blows.” Among other things, one attorney expressly stated that trial counsel’s failure to show through examination that Jane may have been injured in one of the many ways Dr. Plunkett’s affidavit and supporting articles suggested constituted ineffective assistance of counsel. Without addressing the supplemental affidavits, the postconviction court summarily denied the motion to reconsider and appellant moved to reinstate his appeal.

I.

Appellant first challenges five of the district court’s evidentiary rulings. Specifically, he challenges the admission of two of the state’s visual aids and the admission of testimony regarding appellant’s alleged extramarital relationship with Kathy Mason and his conversations with Pastor Wieland and his attorney, C. Andrew Johnson.

A defendant claiming the district court erred in admitting evidence bears the burden of proving the admission was erroneous and prejudicial. State v. Greenleaf, 591 N.W.2d 488, 504 (Minn.1999). Evidentiary rulings will not be reversed absent a clear abuse of discretion. State v. Kelly, 485 N.W.2d 807, 813 (Minn.1989). At a minimum, evidence must be relevant to be admissible. State v. Harris 521 N.W.2d 348, 351 (Minn.1994). Relevant evidence may still be inadmissible if its probative value is substantially outweighed by its likelihood of creating prejudice. Id. at 352; Minn. R. Evid. 403.

First, appellant argues that admission of a clay model of Jane’s head was unfairly prejudicial because it was life-sized, realistic, bruise-covered, and generally grotesque. However, “[t]he use of visual aids is an issue within the discretion of the trial court. Such aids are admissible if they will assist the jury in understanding the witness’ testimony.” State v. Walen, 563 N.W.2d 742, 748 (Minn.1997) (internal citations omitted). Here, the location of the injuries and whether they could have resulted from appellant’s intentional violence were central issues in the case. The trial court, in its discretion, admitted the model solely for illustrative purposes so Dr. McGee could explain the injuries from a three-dimensional perspective, and cautioned the jury about the model’s limited function. We cannot say this was an abuse of the trial court’s broad discretion.

Appellant also argues that the daytime video of areas of Green Lake was irrelevant and misleading because it made locations on the lake clear to the jury though they were not clear to appellant when searching for his wife during the night. However, “[n]o event can be perfectly reenacted.” State v. Ritt, 599 N.W.2d 802, 812 (Minn.1999). Moreover, it is not disputed that the evidence aided the jury in placing the location of the alleged crime in context. See State v. Friend, 493 N.W.2d 540, 544 (Minn.1992). The locations and distances discussed in this case were relevant independent of appellant’s observations on the night in question.

Third, appellant asserts that evidence of his relationship with Mason was irrelevant and more prejudicial than probative because the relationship ended more than a year before Jane’s death. We have said that “[ejvidence that pertains to the relationship between a defendant and a homicide victim ⅜ * * is admissible in criminal prosecutions * * * for the purpose of showing motive and the history of the relationship with the victim * * State v. Langley, 354 N.W.2d 389, 397 (Minn.1984). Appellant’s alleged affair with Mason is relevant to the status of appellant’s relationship with his wife and was not so remote as to lack probative value regarding appellant’s motive. Furthermore, Mason’s explanation that appellant ended the relationship to work on his marriage minimized the testimony’s prejudicial effect.

Fourth, appellant claims that the district court erroneously allowed Johnson to violate the attorney-client privilege by testifying about the meeting in which Johnson, appellant, and Jane discussed the financial aspects of divorce. The attorney-client privilege does not apply to confidences given in the presence of third parties. See Kobluk v. Univ. of Minn., 574 N.W.2d 436, 443 (Minn.1998) (noting that disclosure to a third party may waive the confidentiality element of the attorney-client privilege). Although appellant argues that he and his wife were joint clients, Johnson testified and the district court determined that appellant alone was the client. Because Jane was a nonelient third party, her presence prevented the attorney-client privilege from attaching.

Finally, appellant argues that the district court erroneously allowed Pastor Wieland to testify about the conversation he had with appellant upon returning to shore with the volunteer ambulance team. The burden is on the party asserting the clergy privilege to show he was seeking spiritual aid in a confidential conversation when he spoke with a member of the clergy. See State v. Lender, 266 Minn. 561, 564, 124 N.W.2d 355, 358 (1963). The privilege does not apply where a member of the clergy receives nothing more than an ordinary description of the events. State v. Black, 291 N.W.2d 208, 216 (Minn.1980).

In the instant case, the record does not conclusively show that appellant knew on the night in question that Wieland was a pastor. Although Wieland agreed that the conversation took place while Wieland “talked * ⅝ ⅜ as a pastor,” and that appellant “fell on his hands and knees” during a separate conversation the next morning, these statements do not indicate that appellant fell on his knees in the religious sense or that he knew Wieland was speaking as a pastor. Nor does the record show that appellant, standing in the lobby of the inn, gave Wieland anything more than a general description of the night’s events. Thus, appellant has not satisfied his burden of proving that the conversation was both ministerial and confidential.

Having considered the trial court’s evi-dentiary rulings, we hold that the court did not abuse its discretion in admitting the clay model, lake video, and testimony regarding appellant’s alleged relationship with Mason. Additionally, we hold that the court used proper discretion in concluding that the attorney-client privilege did not attach to the Rhodes’ joint conversation with the attorney and that the clergy privilege did not attach to appellant’s conversation with Wieland.

II.

Appellant also claims that the postconviction court erred in denying his petition for postconviction relief without conducting an evidentiary hearing on his ineffective assistance of counsel claim. We review a postconviction proceeding to determine if there is sufficient evidence to sustain the postconviction court’s findings, and we will not disturb the court’s decision absent an abuse of discretion. Scruggs v. State, 484 N.W.2d 21, 25 (Minn.1992).

A postconviction court properly dismisses a petition for postconviction relief without conducting an evidentiary hearing when the petition and record “conclusively show that the petitioner is entitled to no relief.” Minn.Stat. § 590.04, subd. 1 (2000). Conversely, an evidentiary hearing is necessary “whenever material facts are in dispute that * * ⅜ must be resolved in order to determine the issues raised on the merits.” Hodgson v. State, 540 N.W.2d 515, 517 (Minn.1995). Thus, appellant must allege facts that would, if proven by a fair preponderance of the evidence, entitle him to relief. Roby v. State, 531 N.W.2d 482, 483 (Minn.1995). Any doubts as to whether to conduct an evidentiary hearing should be resolved in favor of the party requesting the hearing. State ex rel. Roy v. Tahash, 277 Minn. 238, 244, 152 N.W.2d 301, 305 (1967).

Appellant claims that his trial counsel was ineffective because counsel did not move for a change of venue, failed to properly counter Dr. McGee’s testimony, and conducted an insufficient investigation that deprived appellant of relevant testimony from at least two potential defense witnesses. To prevail on an ineffective assistance of counsel claim, an appellant must show that trial counsel’s representation “fell below an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsel’s errors.” State v. Lahue, 585 N.W.2d 785, 789 (Minn.1998) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). There is a strong presumption that counsel’s performance was reasonable. State v. Jones, 392 N.W.2d 224, 236 (Minn.1986).

We first address appellant’s argument that trial counsel’s failure to seek a change of venue before trial was objectively unreasonable and affected the outcome of the trial. With his petition for postcon-viction relief, appellant provided numerous copies of newspaper articles and transcripts of radio segments discussing the drowning investigation and trial, and an affidavit by his mother alleging that trial counsel told her that he should have sought a change of venue. Appellant also later provided the affidavit of an attorney who explained why a change of venue was necessary.

Even if true, appellant’s allegations do not cast doubt on the jury’s fairness and impartiality. As the postconviction court noted, “the court and counsel at trial scrupulously examined prospective jurors concerning their awareness of pretrial publicity.” The record indicates that several jurors remembered nothing about the events in question and that the rest had minimal information about the drowning. Consequently, regardless of pretrial and trial publicity, appellant does not allege facts sufficient to show that the postcon-viction court abused its discretion in concluding that trial counsel’s decision not to seek a change of venue was reasonable and probably did not affect the outcome of the trial.

We next turn to appellant’s argument that his trial counsel was ineffective in failing to zealously challenge Dr. McGee’s testimony through the presentation of Dr. Plunkett’s theories, and in failing to conduct a reasonable investigation, which appellant claims would have led to the discovery of Northern Inn guests Brian Hunter and Nichole Bauman and the inclusion of their testimony at trial. The state argues that these claims should be dismissed for the same reasons the court denied appellant’s posttrial motion for a new trial based on newly discovered evidence. In essence, the state claims that the district court resolved the prejudice prong of appellant’s ineffective assistance claim by ruling that the result was not likely to be different if a new trial were granted on the basis of “cumulative” newly discovered testimony.

For several reasons, we reject the state’s argument. First, the United States Supreme Court stated in Strickland:

[T]he newly discovered evidence standard [requiring a showing that the evidence would “more likely than not” have affected the trial’s outcome] is not an apt source from which to draw a prejudice standard for ineffectiveness claims [because t]he high standard for newly discovered evidence claims presupposes that all the essential elements of a presumptively accurate and fair proceeding were present in the proceeding whose result is challenged. An ineffective assistance claim asserts the absence of one of the crucial assurances that the result of the proceeding is reliable * * *.

466 U.S. at 694, 104 S.Ct. 2052 (citations omitted). The postconviction court was asked to but did not address whether there was a “reasonable probability that, but for counsel’s ⅜ * * errors, the result of the proceeding would have been different,” a standard different than that applied on a newly discovered evidence claim. Id. (“A reasonable probability is a probability sufficient to undermine confidence in the outcome.”). The court’s rulings regarding new evidence cannot substitute for the requested analysis on the ineffective assistance of counsel claim.

Second, because the district court’s denials of appellant’s new trial motion and the postconviction petition were based on a record more limited than the one before the court after the motion for reconsideration, we cannot rely on the district court’s findings and conclusions made prior to that point. Although appellant’s failure to provide the postconviction court with the supplemental affidavits until after the original petition unnecessarily complicated the court’s responsibilities, the court ultimately had the current record before it.

We must determine, then, whether an evidentiary hearing was required on appellant’s remaining ineffective assistance of counsel claims. An evidentia-ry hearing is not necessary if the petition, files, and record “conclusively show that the petitioner is entitled to no relief.” Minn.Stat. § 590.04, subd. 1. To determine whether this standard has been met, the postconviction court must consider the nature of the evidence presented at trial. See, e.g., Sutherlin v. State, 574 N.W.2d 428, 436 (Minn.1998); Hodgson, 540 N.W.2d at 518. In this case, the state’s evidence was entirely circumstantial, focusing on the physical condition of Jane’s body, possible motive, and appellant’s demeanor when he pulled the boat up to the dock and reported the incident. The testimony of the shore witnesses was also important to the state’s case, as none of them noticed more than one boat on Green Lake at the time of the incident and one testified to hearing a voice saying “Stop. No. It hurts.”

It is against this backdrop that we review the postconviction court’s denial of postconviction relief. First, we conclude that the affidavits submitted by Dr. Plunk-ett and the two expert defense lawyers, which go to the effectiveness of trial counsel’s representation, raise material questions. Specifically, important issues exist regarding trial counsel’s alleged failure to thoroughly challenge the state’s expert, Dr. McGee, or to provide thorough countering medical testimony as suggested by Dr. Plunkett. An evidentiary hearing is necessary to determine whether the level of trial counsel’s advocacy was unreasonable and may have affected the outcome of the trial.

Second, as asserted in the expert attorneys’ affidavits, the Hunter and Bauman affidavits raise material fact questions as to the scope of trial counsel’s investigation because their affidavits establish at least the possibility of contradicting the state’s important evidence regarding appellant’s demeanor. We note that only Hunter and Bauman contradict the shore witnesses’ testimony that the boat approached the inn at a slow rate of speed and the bouncer’s testimony that appellant did not seem agitated as he walked toward the inn. Hunter and Bauman also claim to have seen five or six boats on the lake, contrary to the shore witnesses’ claims that there was just one boat. Lastly, their affidavits corroborate appellant’s statements that there were several boats on the lake and that he drove fast to avoid a particularly boisterous party. Given the state’s theory of the case, we conclude that the affidavits submitted with the motion for reconsideration raise material fact issues regarding the reasonableness of trial counsel’s investigation and the probability that the outcome at trial may have been different. Because we cannot say that the record conclusively shows that appellant is not entitled to relief, a postconviction hearing is required. See Minn.Stat. § 590.04, subd. 1.

While an evidentiary hearing is necessary in this case, we note that not every ineffective assistance of counsel claim will require an evidentiary hearing at the postconviction court. A petitioner’s allegations in a postconviction petition must be “more than argumentative assertions without factual support.” Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971). However, neither should evidentiary hearings be presumptively denied. A postconviction court must evaluate whether, in light of the significance of the claimed error and the evidence presented at trial, a petitioner has raised and factually supported material matters that must be resolved in order to decide the postconviction issues on their merits. Hodgson, 540 N.W.2d at 517-18. As we have said, doubts concerning whether to conduct an evidentiary hearing should be resolved in favor of the party requesting the hearing. Roy, 277 Minn. at 244, 152 N.W.2d at 305. A hearing is particularly appropriate in this case because the evidence regarding appellant’s demeanor, the testimony of the shore witnesses, and Dr. McGee’s medical opinions were so important to the state’s wholly circumstantial case.

In summary, we hold that the district court did not abuse its discretion in admitting into evidence the videotape, clay model, and testimony of Mason, Wieland, and Johnson. We further hold that with the exception of the change of venue issue, material questions of fact remain regarding appellant’s ineffective assistance of counsel claim and remand so that these questions may be resolved after an evi-dentiary hearing. Specifically, the post-conviction court must determine whether counsel’s conduct “fell below an objective standard of reasonableness” and whether “there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 688, 695, 104 S.Ct. 2052. This hearing will serve the limited purposes of eliciting testimony from Hunter, Bauman, Dr. Plunkett, and other witnesses necessary to a determination of the reasonableness of trial counsel’s actions and whether there is a reasonable probability of a different outcome absent trial counsel’s alleged errors.

We retain jurisdiction of this case and order that this appeal is stayed so that the postconviction court may conduct an evi-dentiary hearing and issue findings and conclusions on the issues herein described. Appellant shall, within 60 days of entry of the resulting order from the postconviction court, move this court to dismiss or vacate the stay of the appeal. If either party wishes to appeal the decision of the post-conviction court, that party shall file and serve in this court a supplemental brief not to exceed 20 pages within 60 days after the order dismissing or vacating the stay. The other party shall file and serve its brief, similarly limited in length, in this court 45 days thereafter.

Appeal stayed and remanded for post-conviction proceedings.

      . Although appellant was represented by two attorneys at trial, we will refer to them collectively because appellant does not distinguish between them for purposes of his ineffective assistance of trial counsel claim.

      . Although appellant did not testify at trial, much of his version of events was introduced through the testimony of other witnesses and the transcript of appellant’s August 15, 1996 interview with law enforcement authorities.

      . In his postconviction petition, appellant claimed that false testimony by the state's medical expert, ineffective assistance of counsel, prosecutorial misconduct, and the erroneous admission of prejudicial evidence warranted an evidentiary hearing and ultimately a new trial. In this direct and postconviction •appeal, appellant's only postconviction claim is that he was entitled to an evidentiary hearing because he presented facts sufficient to show that his trial counsel was ineffective.

      . In a later brief to the postconviction court, appellant also alleged that trial counsel provided ineffective assistance in failing to object to the state’s leading questions of Dr. McGee.

      . In lay terms, hypostasis is defined as "the settling of blood in the dependent parts of an organ or body.” Merriam Webster's Collegiate Dictionary 572 (10th ed.1996).

      . The same judge who presided over appellant's trial heard both his motion for a new trial and his petition for postconviction relief.

      . Appellant asserts for the first time in his pro se brief that Wieland gave him a business card before their conversation on the night of Jane’s drowning, and that the card clearly indicated that Wieland was a Methodist minister. We cannot rely on this assertion, however, because it is not in the record. Further, as it is unrelated to appellant's postconviction claims, it will not become part of the record in the evidentiary hearing for which we remand this case.


author: PAUL H. ANDERSON, Justice. GILBERT, Justice PAGE, Justice

text:
    James PELOWSKI, Relator, v. K-MART CORPORATION, Self-Insured/IHDS of Michigan, Ltd., Respondents.
    No. C8-00-1644.
    Supreme Court of Minnesota.
    June 7, 2001.

      Timothy J. McCoy, McCoy, Peterson, Jorstad & Brabbit, Ltd., Minneapolis, for Employee-Relator.
    Lee J. Keller, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, for Employer-Respondents.
   OPINION

PAUL H. ANDERSON, Justice.

The relator, James A. Pelowski, challenges a compensation judge’s denial of his claim for medical benefits for back surgery and the Workers’ Compensation Court of Appeals’ affirmance of that denial. We affirm.

On January 7, 1997, Pelowski sustained a low back injury while employed by respondent K-Mart Corporation. He injured his back when he lifted a pallet off the floor and then turned and threw the pallet into a return bin. At the time, he had been working for K-Mart for nearly 14 years.

Pelowski first sought medical care from his family physician, who diagnosed a lower back strain and prescribed physical therapy and pain medication. Pelowski’s back pain persisted, and he was referred to an orthopedic surgeon, who diagnosed Pelowski’s injury as a lumbosacral sprain. The orthopedic surgeon did not believe Pelowski was a candidate for back surgery, so he treated Pelowski with a series of epidural steroid injections. Pelowski subsequently was referred to another surgeon who diagnosed nonradicular low back pain and this surgeon similarly saw “no surgical indication.” During a follow-up exam on March 24, 1997, Pelowski’s family physician noted that he did not believe Pelowski had a “surgically treatable problem currently.”

In April 1997, Pelowski saw a neurologist who thought Pelowski might have a lumbar radiculopathy related to an L4-5 abnormality, but the neurologist stated he did not have “solid evidence” of this diagnosis. The neurologist recommended conservative care and referred Pelowski to a physical medicine and rehabilitation specialist. This specialist noted that prior diagnostic testing, including a recent MRI, indicated degenerative disc disease, but the specialist found no “surgical indication on [Pelowski’s] examination or symptoms.” In November 1997, following a flare-up of lower back pain, Pelowski made a return visit to the neurologist. The neurologist again did not believe Pelowski was a candidate for surgery unless he developed “more constant pain or numbness or weakness in the legs.”

In early 1998, the neurologist referred Pelowski to another orthopedic surgeon for a surgical evaluation. At this time, Pelowski described himself as being “basically just miserable.” The orthopedic surgeon recommended surgery only as a “last option” and only if “after trying conservative treatment [Pelowski] feels the quality of his life is so badly affected that he wants to proceed with surgery ⅜ ⅜ During a follow-up visit in June 1998 with the same orthopedic surgeon, Pelowski reported a worsening of symptoms, but the surgeon still recommended conservative care. In September 1998, Pelowski told the surgeon he was unable to sleep or sit due to back-related symptoms and that he wanted to pursue a surgical option. Following a “positive diseogram,” in October 1998, the surgeon recommended a two-level arthrodesis. A neurologist later concurred with this recommendation.

Meanwhile, Pelowski was examined by K-Mart’s medical examiner, also a neurosurgeon, who diagnosed chronic lower back pain syndrome. K-Mart’s medical examiner did not believe that surgery would be necessary unless conservative measures failed to alleviate Pelowski’s low back symptoms and diagnostic testing showed lumbar instability. Following the orthopedic surgeon’s subsequent recommendation for surgery, K-Mart’s medical examiner reviewed the various medical records relied on by Pelowski’s orthopedic surgeon who recommended surgery and again concluded that surgery was not appropriate. K-Mart then refused to authorize payment for the surgical procedure.

In March 1999, Pelowski filed a claim petition with the Department of Labor and Industry seeking approval for his back surgery. While the claim was still pending, he made arrangements for the surgery through his health insurer and obtained a second opinion from an orthopedic surgeon for that purpose. On September 22, 1999, he had an anterior interbody lumbar fusion at L3^4 and L4-5. In a follow-up visit on October 28, 1999, Pelow-ski told his surgeon that his back-related symptoms had improved.

Pelowski’s medical benefits dispute came on for hearing before a compensation judge of the Office of Administrative Hearings in November 1999. The compensation judge found that the treatment parameter of Minn. R. 5221.6500, subp. 2C(l)(d), applied to Pelowski’s claim; that the requirements of degenerative disc disease with a positive discogram at one or two levels had been met, but that Pelowski “did not have consistent symptoms which would indicate the need for fusion surgery.” The judge then went on to find that Pelowski had failed to meet his burden of proving that the surgery was com-pensable and thus denied the claim. On appeal, the Workers’ Compensation Court of Appeals (WCCA) affirmed on the grounds that the record supported the compensation judge’s choice between conflicting expert opinions. By writ of certio-rari, Pelowski has sought review of that decision.

When reviewing the findings of a compensation judge, the WCCA may not disregard the compensation judge’s findings, but must affirm the findings unless they are “clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.” Minn.Stat. § 176.421, subd. 1 (2000). Substantial evidence is evidence that a reasonable mind might accept as adequate. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59 (Minn.1984). Although the WCCA is required to look at all the evidence in performing its review function, it must give due weight to the compensation judge’s opportunity to evaluate the credibility of the witnesses and must uphold findings based on conflicting evidence or evidence from which more than one inference might reasonably be drawn. Id. at 59-60. When we review a matter on certiorari, we will not disturb findings affirmed by the WCCA unless the findings are manifestly contrary to the evidence or unless the evidence clearly requires reasonable minds to adopt a contrary conclusion. Id. at 61.

Minnesota Statutes § 176.135, subd. 1(a) (2000), states that an employer is to furnish “any medical, psychological, chiropractic, podiatric, surgical and hospital treatment ⅝ * ⅜ as may reasonably be required at the time of the injury and any time thereafter to cure and relieve from the effects of the injury.” Under legislation enacted to control medical costs in the workers’ compensation system, the Department of Labor and Industry promulgated treatment parameter rules for health care provider treatment. Hirsch v. Barbley-Lindsay Co., 537 N.W.2d 480, 483 (Minn.1995). The rules “provide the yardstick by which the treatment offered by the health care provider is measured” and aid the trier of fact “in identifying reasonable and appropriate medical treatment.” Jacka v. Coca-Cola Bottling Co., 580 N.W.2d 27, 35 (Minn.1998). The rules endeavor to provide “a large measure of uniformity and certainty as to compensa-ble treatment.” Id.

The applicable parameter in this case, Minn. R. 5221.6500, subp. 2C(l)(d) (2000), provides that lumbar arthrodesis surgery is reasonably required if the employee has incapacitating low back pain for more than 3 months and degenerative disc disease with a positive discogram at one or two levels of the spine. Here, the compensation judge found that although Pelowski had degenerative disc disease with a positive discogram at one or two levels, he had not had incapacitating low back pain. The WCCA stated the compensation judge’s finding that Pelowski did not satisfy the treatment parameters was “questionable,” but it affirmed the denial of benefits on alternate grounds — that the compensation judge’s choice between expert opinions had the requisite evidentiary support.

As a general rule, the trier of fact’s choice between experts whose testimony conflicts is upheld unless the facts assumed by the expert in rendering his or her opinion are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 342-43 (Minn.1985), distinguished by Dille v. Knox Lumber/Division of Southwest Forest, 452 N.W.2d 679, 681 (Minn.1990). But the treatment parameter rules provide the “yardstick” by which the propriety of treatment is measured and contemplate a “large measure” of “certainty

as to compensable treatment.” Jacka, 580 N.W.2d at 35. In the context of claims for medical treatment outside the rules, we have said that a compensation judge may depart from the rules only “in those rare cases in which departure is necessary to obtain proper treatment.” Asti v. Northwest Airlines, 588 N.W.2d 737, 740 (Minn. 1999) (quoting Jacka, 580 N.W.2d at 35-36) (emphasis in original). With the exception of the “rare case,” when the treatment parameter criteria have been satisfied, a claim for such treatment ought not to be defeated by the opinion of an expert who generally does not accept the treatment parameter criteria. In the absence of circumstances warranting a departure from treatment parameter rules, treatment in compliance with the parameter rules should be compensable. Having said this, we nevertheless affirm.

The compensation judge’s decision, which was, in essence, a credibility determination, was premised on the inconsistencies in the employee’s sworn testimony and medical records as well as the deposition testimony of the independent medical consultant whose testimony contradicted the employee’s claims. The assessment of a witness’ credibility is the unique function of the trier of fact. Tolzmann v. McCombs-Knutson Assocs., 447 N.W.2d 196, 198 (Minn.1989). It is not the function of a reviewing court to evaluate “the credibility and probative value of witness testimony and to choose different inferences from the evidence than the compensation judge.” Redgate v. Sroga’s Stan dard Sem, 421 N.W.2d 729, 734 (Minn.1988); see Luthens v. Glencoe Red & White Store, 264 Minn. 26, 31, 117 N.W.2d 386, 389 (1962). In his decision, the compensation judge noted the inconsistencies in the employee’s testimony as they related to material issues in his claim for medical benefits. The judge also found that there was a “real lack of objective findings which suggest such incapacity and the need for the surgery * * ⅜.” We hold that the compensation judge’s findings were supported by evidence that “a reasonable mind might accept as adequate.” Redgate, 421 N.W.2d at 734; cf. Hengemuhle, 358 N.W.2d at 60-61. Therefore, we affirm the Workers’ Compensation Court of Appeals’ decision affirming the compensation judge’s decision to deny benefits.

Affirmed.

GILBERT, Justice

(dissenting).

I respectfully dissent from the majority opinion. I would reverse the Workers’ Compensation Court of Appeals and remand to the compensation judge for a finding on the treatment parameters at issue: “incapacitating low back pain for longer than 3 months.” Minn. R. 5221.6500, subp. 2C(l)(d). The Workers’ Compensation Court of Appeals stated that “it is questionable whether the record supports a finding that the employee did not satisfy the treatment parameters.” I agree. The WCCA committed reversible error at this point.

In affirming the comp judge, the WCCA digressed into a choice of experts’ analysis based on a credibility determination. The WCCA thus avoided deciding this case on the merits, ie., the treatment parameters. The majority opinion affirms this digression and misstates the record relating to a finding of the compensation judge that relator “had not had incapacitating lower back pain.” In fact, the compensation judge analyzed the case in terms of left leg pain and instability rather than low back pain. This was clearly erroneous and ignored substantial evidence of lower back pain. The employee testified to constant pain in the low back all the time “and that basically I was just miserable.” As the Workers’ Compensation Court of Appeals pointed out, the compensation judge failed to analyze the case in terms of or even mention the required low back pain in his findings and spent four pages in its decision analyzing the employee’s complaint of left leg pain and instability.

Obviously, an error was made in the compensation judge’s analysis. This error goes beyond simply a choice between experts. The treatment parameter regulations were designed to remove this uncertainty and to provide the needed health care treatment once the parameters were met. Here, the compensation judge found that there was the required degenerative disc disease with a positive discogram at one or two levels of the spine, but then skipped over the second part of the treatment parameters and decided the case based on the need for treatment rather than determine if there was low back pain. The compensation judge framed the question as follows: “does the employee have the type of ‘pain’ that is ‘incapacitating’ and requires surgery.” First of all, that is not the question to be answered. The proper question relates to whether there was incapacitating lower back pain. If there was, surgery was reasonable and proper pursuant to Minn. R. 5221.6500, subp. 2C(1). Furthermore, as the WCCA pointed out, the term incapacitating lower back pain as used in the treatment parameters does not require total disability. Here, the uncontradicted record is that the employee had experienced constant pain in his low back from 1998 up to the time of the surgery, as well as numbness in his left upper thigh with giving out of his left leg. He was not able to keep up normal recreational activities and was unable to sleep or sit secondary to the pain.

The compensation judge based .his decision on the belief that relator did not have consistent symptoms, which would indicate the need for a fusion surgery. The compensation judge then wrote in his findings “having thus made numerous circuits of the proverbial barn it appears that the final dispute comes down to what it essentially always comes down to, a credibility judgment by the Compensation Judge.” The compensation judge then digressed to analyze only the left leg pain and concluded that “the employee did not have consistent symptoms which would indicate the need for a fusion surgery,” and adopted the opinions of Dr. Daniel Ahlberg as set forth in his report as to why he did not believe surgery was reasonable and necessary.

These findings do not address the treatment parameter of incapacitating back pain nor did the compensation judge make any credibility determination based on the relator’s testimony about low back pain. Rather, the compensation judge converted his decision into a dispute between the two experts as to whether or not this type of surgery would be recommended. The credibility determination related solely to the leg pain with no findings or discussion on low back pain. Indeed, Dr. Ahlberg does not even opine on the ultimate issue of whether or not there is a history of incapacitating back pain, but uses an incorrect analysis. The WCCA also erred when it based its decision on a choice of experts rather than the low back treatment parameter. The findings are to be directed to the treatment parameters, not the treatment.

Accordingly, I would reverse and remand to the compensation judge for appropriate findings on the treatment parameter at issue whether relator had incapacitating low back pain for longer than 3 months.

PAGE, Justice

(dissenting).

I join in the dissent of Justice James H. Gilbert.

      . The phrase “cure and relieve” has been . construed to mean "cure or relieve.” Castle v. City of Stillwater, 235 Minn. 502, 508, 51 N.W.2d 370, 373 (1952); Eberle v. Miller, 170 Minn. 207, 210, 212 N.W. 190, 191 (1927), overruled in part by Johnson v. Iverson, 175 Minn. 319, 222 N.W. 508 (Minn.1928).

      . Minn. R. 5221.6500 provides in relevant part:
      Subp. 2. Spinal surgery.
      C. Lumbar arthrodesis with or without instrumentation.
      (1) Indications: one of the following conditions must be satisfied to indicate that the surgery is reasonably required:

      (d) incapacitating low back pain ⅞ * * for longer than three months, and one of the following conditions involving lumbar segments L-3 and below is present:
      i. for the first surgery only, degenerative disc disease * * * with postoperative documentation of instability created or found at the time of surgery, or positive discogram at one or two levels ⅜ * *.