author: SANDSTROM, Justice.

text:
    2000 ND 116
    Rachel M. KAUTZMAN, n/k/a Rachel M. Dietz, Plaintiff and Appellee, v. Robert A. KAUTZMAN, Defendant and Appellant.
    Nos. 990328, 990386.
    Supreme Court of North Dakota.
    May 30, 2000.
    Jerilynn Brantner Adams, Vogel, Weir, Hunke & McCormick, Ltd., Fargo, for plaintiff and appellee.
    Jonathan T. Garaas, Garaas Law Firm, and Mark R. Fraase (on brief), Wegner, Fraase, Nordeng, Johnson & Ramstad, Fargo, for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Robert Kautzman has filed two appeals from district court judgments and orders made after our remand in Kautzman v. Kautzman, 1998 ND 192, 585 N.W.2d 561, arising out of the parties’ divorce action. We affirm.

I

[¶ 2] In the original judgment, the trial court ordered Robert Kautzman to pay Rachel Kautzman (now known as Rachel Dietz) spousal support of $4,000 per month until December 2002, and $2,000 per month thereafter; valued the parties’ construction company, KCI, at $301,001.58, and awarded property valued at $850,160 to Rachel Kautzman and $851,962 to Robert Kautzman. Kautzman, 1998 ND 192, ¶ 4, 585 N.W.2d 561. Rachel Kautzman appealed the property distribution, contending the trial court’s valuation of KCI was clearly erroneous because it did not include $84,859 for work in progress, prepaid expenses, and receivables, and should have been increased by an additional $196,000 for 1997 retained earnings. We concluded the valuation of KCI was clearly erroneous because it did not include the $84,859 sought to be added by Rachel Kautzman, and “the trial court made a mistake in valuing KCI by not including retained earnings from 1997 revenue.” Id. at ¶¶ 26, 28. We reversed and remanded:

The judgment is reversed to the extent it fails to explicitly address the issue of an award of attorney fees to Rachel based on Robert’s actions increasing the time spent on the dispute, and to the extent it distributes the parties’ marital property based upon an improper valuation of KCI without retained earnings from 1997 revenue up to the end of the trial, and without including work in progress, prepaid expenses, and receivables not available to the special master in valuing KCI. The judgment and orders are otherwise affirmed. The matter is remanded for a redetermi-nation of the value of KCI and a rede-termination of the property distribution in light of the revaluation of KCI, for consideration of an award of attorney fees to Rachel for Robert’s actions increasing the time spent on this dispute, and for a determination on Rachel’s request for attorney fees on appeal.

Kautzman, 1998 ND 192, ¶ 38, 585 N.W.2d 561.

[¶ 3] On remand, the district court, among other things, increased the valuation of KCI by $280,859 and ordered Robert Kautzman to pay Rachel Kautzman an additional $140,429 as a property distribution. After a number of hearings, the trial court awarded Rachel Kautzman trial attorney fees of $50,000 because Robert Kautzman substantially increased the cost of litigation; awarded Rachel Kautzman $10,000 for attorney fees in the initial appeal; found Robert Kautzman in contempt of court; ordered the entry of money judgments against Robert Kautzman; and denied Robert Kautzman’s request to eliminate or reduce his spousal support obligation. Robert Kautzman appealed.

[¶ 4] In appeal No. 990328, Robert Kautzman appealed the district court’s third amended judgment, dated May 24, 1999; a memorandum opinion dated August 26, 1999; a September 30, 1999, order finding Robert Kautzman in contempt of court, denying Robert Kautzman’s motion to amend the third amended judgment or grant an evidentiary hearing, denying Robert Kautzman’s motion for relief from the judgment, and directing the entry of money judgments; and money judgments entered on October 15 and 18, 1999, and January 3, 2000, in the amounts of: $1,500 for household goods and personal effects; $50,000 for money withdrawn from a bank account awarded to Rachel Kautzman; $322,139.18 for unpaid property distribution payments and interest; $41,893.88 for past-due spousal support; and $60,000 for attorney fees. In appeal No. 990386, Robert Kautzman appealed from the district court’s November 3, 1999, order denying his motion to vacate paragraph 3 of the second amended judgment or to amend it to provide a reduced amount of spousal support or an earlier termination date, and from the district court’s December 9, 1999, order denying Robert Kautzman’s motion for reconsideration. In appeal No. 990328, Robert Kautzman argues the district court: 1) failed to properly value KCI and properly redetermine the property distribution; 2) failed to properly address the issue of an attorney fee award for increasing the time spent on the dispute; 3) failed to properly address the issue of an attorney fee award for the initial appeal; 4) erred in finding him in contempt of court; and 5) erred in not granting relief he requested, because the court erred in speculating Robert Kautzman’s noncompliance with the second and third amended judgments was voluntary, there was no basis for the money judgments, and Robert Kautzman did not get credit for all the spousal support he paid. In appeal No. 990386, Robert Kautzman argues the district court failed to provide him appropriate relief with respect to spousal support, erred in finding him in contempt of court, and erred in determining the contempt was relevant to Robert Kautzman’s request to modify the spousal support award.

[¶ 5] The trial court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II

[¶ 6] Robert Kautzman argues the district court on remand “refused to allow any further testimony on the issue of the valuation of KCI” and “[a] factual hearing should have been granted to determine the true value of the corporation as of the trial date.”

[¶ 7] When this Court specifies a defect to be cured and remands for rede-termination of an issue without specifying the procedure to be followed, the trial court need only rectify the defect in a manner consistent with our opinion and conformable to law and justice. See Moch v. Moch, 1998 ND 95, ¶ 9, 578 N.W.2d 129 (when this Court’s mandate makes clear the defects which need to be cured by the district court, the district court need do no more than rectify those defects and proceed in a manner consistent with this Court’s opinion); Kern v. Kelner, 75 N.D. 703, 713-14, 32 N.W.2d 169,174 (N.D.1948) (when this Court does not give specific directions in remanding for further proceedings, the trial court is “free to make any order or direction in the further progress of the case not inconsistent with the decision and opinion of this court and conformable to law and justice”). Thus, when we reverse and remand for a trial court to address an issue or to redetermine a matter, unless otherwise specified, the trial court may decide based on the evidence already before it or may take additional evidence. See Moch; Kern. The decision on taking additional evidence will be reversed only if the trial court abused its discretion. Bruner v. Hager, 547 N.W.2d 551, 554 (N.D.1996).

[¶ 8] Here, “[t]he trial court concluded that it could make an adequate amended finding to conform with its original intent on the basis of the record before it without seeking or permitting the introduction of additional evidence.” All Seasons Water Users Ass’n v. Northern Improvement Co., 417 N.W,2d 831, 832-33 (N.D.1988). As in Hendrickson v. Hendrickson, 2000 ND 1, ¶ 10, 603 N.W.2d 896, “no additional evi-dentiary hearing was necessary for the trial court to comply with our decision” on redetermining the value of KCI and the property distribution. We conclude the trial court did not abuse its discretion in failing to conduct an evidentiary hearing or receive further evidence on this issue.

III

[¶ 9] Robert Kautzman contends he did not receive credit for all of the spousal support he paid. Rachel Kautzman has agreed Robert Kautzman should receive a credit for spousal support payments made through income withholding. In light of the parties’ positions on this issue, they may submit the proper amount to the trial court.

IV

[¶ 10] With regard to the other issues Robert Kautzman has raised in these appeals, we affirm under N.D.R.App.P. 35.1(a)(2),(4). The judgments and orders are affirmed.

[¶ 11] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN and MARY MUEHLEN MARING, JJ., and RICHARD W. GROSZ, D.J., concur.

[¶ 12] RICHARD W. GROSZ, D.J., sitting in place of KAPSNER, J., disqualified.


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2000 ND 115
    Paul BUCHHOLZ d/b/a Helmer’s Corner Bar, Plaintiff and Appellant, v. CITY OF ORISKA, a North Dakota Municipal Corporation, Defendant and Appellee.
    No. 990364.
    Supreme Court of North Dakota.
    May 30, 2000.
    Mark T. Blumer (submitted on brief), Nelson, Blumer & Johnson, PLLP, Fargo, for plaintiff and appellant.
    Angela E. Lord (submitted on brief), Vogel, Weir, Bye, Hunke & McCormick, Ltd., Fargo, for defendant and appellee.
   MARING, Justice.

[¶ 1] Paul Buchholz appeals from a judgment dismissing his action against the City of Oriska (“the City”). In the trial court, Buchholz challenged the substantive and procedural validity of an ordinance adopted by the City. On appeal, he raises only one issue: whether under N.D.C.C. § 40-05-01(1) the City was required to file a copy of the proposed ordinance in the office of the city auditor prior to its adoption. We conclude the statute contains no such mandate and, therefore, we affirm.

[¶ 2] The interpretation of a statute is a question of law, fully reviewable by this Court on appeal. Kuntz v. Muehler, 1999 ND 215, ¶ 9, 603 N.W.2d 43. Our primary objective in interpreting a statute is to ascertain the intent of the legislature by looking at the language of the statute itself and giving it its plain, ordinary, and commonly understood meaning. Peterson v. Traill Co., 1999 ND 197, ¶ 10, 601 N.W.2d 268; N.D.C.C. §§ 1-02-02 and 1-02-03. If a statute’s language is ambiguous, we look to extrinsic aids to determine the legislature’s intent. Werlinger v. Champion Healthcare Corp., 1999 ND 173, ¶ 44, 598 N.W.2d 820. A statute is ambiguous when it is susceptible to differing, but rational, meanings. Id.

[¶ 3] Buchholz argues N.D.C.C. § 40-05-01(1) requires that a copy of any proposed ordinance be filed in the office of the city auditor and that the City’s failure to comply with this mandate invalidates the challenged ordinance. Section 40-05-01(1), N.D.C.C., states that the governing body of a municipality has the power:

[t]o enact or adopt all such ordinances, resolutions, and regulations, not repugnant to the constitution and laws of this state, as may be proper and necessary to carry into effect the powers granted to such municipality or as the general welfare of the municipality may require, and to repeal, alter, or amend the same. The governing body of a municipality may adopt by ordinance the conditions, provisions, and terms of a building code, a fire prevention code, a plumbing code, an electrical code, a sanitary code, vehicle traffic code, or any other standard code which contains rules and regulations printed as a code in book or pamphlet form by reference to such code or portions thereof alone without setting forth in said ordinance the conditions, provisions, limitations, and terms of such code. When any such code or portion thereof shall have been incorporated by reference into any ordinance as aforesaid, it shall have the same force and effect as . though it had been spread at large in such ordinance without further or additional posting or publication thereof. A copy of such standard code or portion thereof shall be filed for use and examination by the public in the office of the city auditor of such municipality prior to the adoption thereof. The adoption of any such standard code by reference shall be construed to incorporate such amendments thereto as may be made therein from time to time, and such copy of such standard code so filed shall at all times be kept current in the office of the city auditor of such municipality. The adoption of any such code or codes heretofore by any municipality is hereby validated. Fines, penalties, and forfeitures for the violation thereof may be provided within the limits specified in this chapter notwithstanding that such offense may be punishable also as a public offense under the laws of this state.

(Emphasis added.)

[¶ 4] We conclude the statute is unambiguous. The plain language of the statute grants municipalities the power to adopt, by reference, the terms of an existing code. When doing so, a municipality must file a copy of the code which is to be adopted by reference in the office of the city auditor for public use and examination. In the present case, the ordinance Buchholz challenges is self-contained; it does not adopt an existing code by reference. Therefore, the filing requirement of N.D.C.C. § 40-05-01(1) does not apply to this ordinance.

[¶ 5] Though Buchholz raised other issues before the trial court, he did not brief those issues on appeal. Therefore, we do not address them. See Olmstead v. First Interstate Bank of Fargo, N.A., 449 N.W.2d 804, 807 (N.D.1989) (issues not briefed or argued are deemed abandoned).

[¶ 6] We affirm the judgment dismissing Buchholz’s action against the City.

[¶ 7] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM, JJ., MICHAEL 0. McGUIRE, District Judge, concur.

[¶ 8] MICHAEL 0. McGUIRE, District Judge, sitting in place of KAPSNER, J., disqualified.


author: VANDE WALLE, Chief Justice. KAPSNER, Justice,

text:
    2000 ND 119
    STATE of North Dakota, Plaintiff and Appellee, v. Larry Gene RUBEY, Defendant and Appellant.
    No. 990189.
    Supreme Court of North Dakota.
    June 8, 2000.

      Merle Ann Torkelson, State’s Attorney, Washburn, ND, for plaintiff and appellee.
    Gregory Ian Runge, Bismarck, ND, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] A jury convicted Larry Gene Ru-bey of violating the sex offender registration requirement. He appealed from the conviction and from an order denying his motion to dismiss. We affirm.

[¶ 2] On May 17,1988, Rubey pled guilty to two counts of Gross Sexual Imposition, a Class B Felony, for offenses committed in 1985 and 1986 against a child under the age of 15. Imposition of the sentence was deferred and Rubey was placed on supervised probation. In October 1990, Rubey’s probation was revoked and he was sentenced to five years imprisonment. Rubey was released in April 1994.

[¶ 3] In June 1996, Rubey moved to McLean County, specifically 321 Main Avenue in Washburn, N.D. The McLean County Sheriffs Office advised Rubey to register as a sex offender. Rubey registered on August 3, 1996. At that time, Rubey signed a form acknowledging, among other things, he understood: “if I should make any change at all in my address, I must notify this same law enforcement agency of my intended new address within ten days of moving to that new address.”

[¶ 4] In March 1997, Rubey was ordered to remove himself from the Washburn residence at the Washburn address under a permanent protection order. He left Washburn and did not return. He lived for a few days at the Ruth Meiers Hospitality House in Bismarck and then helped with volunteer flood relief in Fargo for a few days. Thereafter, Rubey began work as a trucker for Piper John Express Trucking Company of Mandan, N.D. Ru-bey asserts he lived out of his truck thereafter and did not stay at any one place for more than three or four days. In May or June of 1997 Rubey obtained a new address, P.O. Box 356, Mandan, N.D. Rubey did not notify the McLean County Sheriffs Office of any change in his address after he left Washburn.

[¶ 5] Rubey was charged with violating the sex offender registration requirement in McLean County. Rubey moved to dismiss the charge against him because the allegation against him failed to state a claim for which he could be convicted. A jury found Rubey guilty of violating the sex offender registration requirement.

I

[¶6] Rubey argues the district court should have dismissed the charges against him because the district court in which Rubey was convicted in 1988 failed to provide Rubey with notice of his duty to register. The issues on this appeal require us to interpret section 12.1-32-15, N.D.C.C., and determine its proper application. The interpretation of a statute is a question of law, which we fully review on appeal. Anderson v. Hensrud, 548 N.W.2d 410, 412 (N.D.1996).

[¶ 7] Rubey cites N.D.C.C. § 12.1-32-15(3), which provides,

After a person has pled guilty to or been found guilty of a crime against a child or an attempted crime against a child, or after a person has pled guilty or been found guilty as a sexual offender, the court shall impose ... a requirement that the person register, within ten days of coming into a county in which the person resides or is temporarily domiciled ....

(emphasis added).

[¶8] The registration requirement did not exist when Rubey pled guilty in 1988 or when his probation was revoked and he was sentenced in 1990. Consequently, the Wells County District Court did not notify Rubey or require him to register. The sex offender registration law was enacted in 1991, but has significantly evolved since then. See 1991 N.D. Sess. Laws ch. 136. Originally, registration was only required if a court ordered it. Id. Amendments in 1993 required courts to impose the registration requirement if a person was convicted as a sex offender. 1993 N.D. Sess. Laws ch. 129, § 3. The legislature amended the law in 1995 and 1997; the 1997 law applies here. Under that law, persons were required to register not only if they had been required to by a court, but if that person:

a. Is incarcerated or is on probation or parole on August 1, 1995, for a crime against a child or as a sexual offender;
b. Has pled guilty or nolo contendere to, or been found guilty of, an offense in a court of another state or the federal government equivalent to those offenses set forth in subdivisions a and c of subsection 1; or
c.Has pled guilty to or been found guilty of a crime against a child or as a sexual offender within ten years prior to August 1,1995.

N.D.C.C. § 12.1-32-15(3) (1997).

[¶ 9] Rubey was required to register under subsection c above because he pled guilty to a crime against a child and as a sex offender within ten years prior to August 1, 1995. Thus, the statute applicable to Rubey’s conviction in 1988 did not require him to register only if required to do so by a court. The statute specifically required him to register.

[¶ 10] In State v. Burr, 1999 ND 143, ¶ 26, 598 N.W.2d 147, a majority of this court upheld the conviction of James Burr. He had been convicted of failing to register, although Burr was never advised by a court of the registration requirement. The majority said:

North Dakota Century Code section 12.1-32-15(3) clearly sets forth three situations under which sex offenders would still be required to register even though they had not been advised by the district court of the requirement to register, distinguishing this case from [State v.] Breiner [1997 ND 71, 562 N.W.2d 565].
A nonregistered offender within any of the three categories added in 1995 would not have been advised by any North Dakota judge of the duty to register. Those offenders on probation or parole would have already been sentenced. Offenders convicted in other states would not have been advised by judges in those states about North Dakota’s registration requirements. An offender like Burr could not have been told of the duty to register, because he had no duty until August 1, 1995....
[Burr’s] conviction stands, and the criminal conduct he is charged with in this case is failing to comply with registration provisions in light of the earlier conviction.

[¶ 11] Under the statute, the fact the Wells County District Court did not inform Rubey he was required to register does not relieve him of the obligation to register.

II

[¶ 12] Rubey argues the conviction fails because the State did not prove Ru-bey changed his residence. That is, Ru-bey lived out of his truck and only stayed in one place for three or four days. He never had a “home,” a place where he was habitually present, and which he intended to return to after being away for business or pleasure. See Dietz v. City of Medora, 333 N.W.2d 702, 705 (N.D.1983) (applying N.D.C.C. § 54-01-26 in defining legal residence as “the place where an individual has established his home, where he is habitually present, and which he intends to return to when he is away for business or pleasure”).

[¶ 13] Rubey was convicted under N.D.C.C. § 12.1-32-15(6), which says, in relevant part: “If a person required to register pursuant to this section has a change in name or address, that person shall inform in writing, within ten days, the law enforcement agency with whom that person last registered of the person’s new name or address.” Section 12.1-32-15, N.D.C.C., uses several terms relating to address and residence, including: “address where the person expects to reside,” the “county in which the person resides or is temporarily domiciled,” and merely “address.” In subsection six, the legislature uses “address,” but does not define the term.

[¶ 14] Words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears. N.D.C.C. § 1-02-02. The dictionary defines “address” as “[t]he written directions on mail indicating destination” and “[t]he location at which a person or organization may be found or reached.” American Heritage College Dictionary p. 15 (1997). The legislature’s use of “address” rather than “residence” indicates an intent to include both mailing addresses and residential addresses.

[¶ 15] Moreover, the following analysis counsels the legislature’s use of the broad term “address” was conscious, not an act without thought. North Dakota’s registration statute was patterned after California’s sex offender registration legislation. Hearing on S.B. 2574 Before the House Human Services and Veterans Affairs Comm., 52nd N.D. Legis. Sess. (March 21, 1991) (testimony of Sen. Robinson). However, California’s provision regarding change of address reads, “If any person who is required to register pursuant to this section changes his or her residence address or location ... the person shall inform ... the law enforcement agency or agencies with which he or she last registered of the new address or location.” CaLPenal Code § 290(f)(1). Significantly, N.D.C.C. § 12.1-32-15(6) does not copy the “residence address or location” language that California’s provision uses, but simply uses “address.”

[¶ 16] It is true we construe ambiguous criminal statutes in favor of the defendant. State v. Larson, 479 N.W.2d 472, 473 (N.D.1992). We also construe statutes to avoid a ludicrous result, id., and we endeavor to effectuate the legislative purposes which prompted a law’s enactment. State v. Jelliff, 251 N.W.2d 1, 7 (N.D.1977).

[¶ 17] The clear intent of the legislature in requiring this registration was to enable law enforcement to keep better track of sex offenders and those who commit crimes against children. In Burr we quoted the testimony of Assistant Attorney General Robert Bennett that stated the law’s purpose was “for regulation of the offenders required to register. The registration information provided by the listed offenders is necessary to aid in the investigation and apprehension of offenders and to protect the health, safety, and welfare of the members of the local community and citizens of this state.” Burr, at ¶ 13 (quoting Hearing on H.B. 1152 Before the House Judiciary Comm., 54th N.D. Legis. Sess. (Jan. 9, 1995)). See Hearing on S.B. 257⅛ Before the House Human Services & Veterans Affairs Comm., 52 nd N.D. Legis. Sess. (March 21, 1991) (testimony of Jim Vukelic stating “[t]he primary purpose for this bill is law enforcement”); Burr, at ¶ 19 (stating “[t]he legitimate public interest in having sexual offenders register with police is to notify law enforcement of the person’s presence in their community”).

[¶ 18] Using address in the broader sense rather than limiting it to residence, more clearly effects the legislature’s intent. It requires offenders who leave their registered address, but do not gain a new permanent residing address to nonetheless notify law enforcement of this change. Allowing sex offenders to circumvent the registration process by physically leaving one residence without technically acquiring a new residence would permit the offender to “slip through the cracks,” disappear from law enforcement view and thus thwart the purpose for which this law was enacted.

[¶ 19] If an offender registered at a particular residing address permanently abandons the address, the offender must register the subsequent residing address if there is one. However, if the offender, as in this case, has no new residing address, but has a new mailing address, the offender must notify authorities of the new address. By concluding address includes mailing addresses and residential addresses, our interpretation effects the purpose of this law without unduly burdening the offender.

[¶ 20] Rubey left 321 Main Avenue in Washburn and did not return. He did not continue to use the address as a residence or a place to receive mail. Rubey further demonstrated his intent by obtaining a new mailing address in Mandan. Because we conclude the term “address” used in N.D.C.C. § 12.1-32-15(6) includes mailing addresses like Rubey’s post office box address in Mandan, we affirm.

[¶ 21] DALE V. SANDSTROM and WILLIAM A. NEUMANN, JJ., concur.

KAPSNER, Justice,

dissenting.

[¶ 22] If I believed N.D.C.C. § 12.1-32-15, could be constitutionally applied to Ru-bey, I would join in the majority’s analysis and interpretation of the statutory reference to “address” set forth in Part B of the majority opinion. However, Rubey committed the felony offenses of gross sexual imposition in 1985 and 1986. Those offenses are the basis for the obligation to register as a sex offender under a statute which did not exist at the time of his offenses. For the reasons set forth in my dissent in State v. Burr, 1999 ND 143, 598 N.W.2d 147,1 would hold the application of N.D.C.C. § 12.1-32-15 to Rubey is a violation of the ex post facto provisions of the federal and state constitutions. For this reason, I respectfully dissent.

[¶ 23] MARY MUEHLEN MARING, J., concurs.

      . Rubey has not mounted a constitutional attack to the statute under which he was convicted.


author: NEUMANN, Justice.

text:
    2000 ND 120
    Mark Lynn OLSON, Plaintiff and Appellant, v. Lisa Ann OLSON, n/k/a Lisa Ann Michels, Defendant and Appellee.
    No. 990343.
    Supreme Court of North Dakota.
    June 8, 2000.

      Patti Jo Jensen, Galstad, Jensen & McCann, P.A., East Grand Forks, MN, for plaintiff and appellant.
    Wayne K. Stenehjem, Kuchera, Ste-nehjem, Walberg & Sharp, Grand Forks, N.D., for defendant and appellee.
   NEUMANN, Justice.

[¶ 1] Mark Lynn Olson has appealed an order granting the motion of Lisa Ann Olson, now know as Lisa Ann Michels, to change the residence of the parties’ child to Texas. We affirm.

[¶ 2] Mark and Lisa married in 1995. A daughter, Faith Ashley Olson, was born on August 2, 1997. Mark sued for divorce in 1998. Among other things, Mark and Lisa stipulated:

(e) Plaintiff acknowledges that Defendant may have to leave Grand Forks to further her career chances. Defendant acknowledges that Plaintiffs business and extended support system of relatives will make it likely that he will remain in the area. Both parties recognize they will need to be flexible to accomplish these changes and to be good parents for Faith.

The trial court awarded Mark a divorce; awarded Mark and Lisa joint legal custody of Faith, with physical custody to Lisa and liberal visitation to Mark; fixed Mark’s child support obligation; and distributed the parties’ property and debts. Judgment was entered on August 5,1999.

[¶ 3] Lisa moved for an order permitting her and Faith to move to Texas. The trial court found advantages in the proposed move:

There are advantages the move will make in improving the custodial parent’s and child’s quality of life. Lisa would have about a 30 per cent increase in pay. Her benefits will remain about the same. She will be able to live with her sister in Houston while she builds up enough funds to get housing on her own.
Houston is a large metropolitan area where Lisa may better make use of her college degree. Her current job at UND is well below her educational level. The move to Houston should lead to a better job in her field. This should lead to an increase in quality of life for her and Faith. Her current job is below her educational level.

The court found “[tjhere is no evidence that Lisa is contemplating the move to defeat visitation,” and Mark “does not have any ulterior motives.” The court found “there will likely be some negative impact on the relationship between Mark and his daughter, however, balancing this with the advantages of the move for Lisa and the child, the negative impact should not be that great and can be mitigated by meaningful visitation.” The court further found: “The Court finds overall that it will be in the best interest of the child.” The trial court issued an order granting Lisa’s motion on October 20, 1999, and Mark appealed.

[¶ 4] Section 14-09-07, N.D.C.C., provides a custodial parent “may not change the residence of the child to another state except upon order of the court or with the consent of the noncustodial parent, if the noncustodial parent has been given visitation rights by the decree.” “A move must not be denied simply because visitation cannot continue in the existing pattern.” Tibor v. Tibor, 1999 ND 150, ¶ 24, 598 N.W.2d 480. “A visitation schedule which provides less frequent, but extended, visitation periods will preserve a noncustodial parent’s ability to foster and develop a relationship with the child.” Id. As we explained in Tibor, at ¶ 8:

The purpose of N.D.C.C. § 14-09-07 is to protect the noncustodial parent’s visitation rights if the custodial parent wants to move out of state. Hanson [v. Hanson], 1997 ND 151, ¶ 10, 567 N.W.2d 216. The custodial parent has the burden of proving the proposed move is in the best interests of the children. Keller v. Keller, 1998 ND 179, ¶ 10, 584 N.W.2d 509. A trial court’s decision whether the move is in the best interests of the children is a finding of fact which will not be overturned on appeal unless it is clearly erroneous. Id. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after reviewing all the evidence, we are left with a definite and firm conviction a mistake has been made. Id.

In reviewing a trial court’s findings of fact, which are presumptively correct, we view the evidence in the light most favorable to the findings. Schmaltz v. Schmaltz, 1998 ND 212, ¶ 6, 586 N.W.2d 852.

[¶ 5] In determining if moving to another state is in a child’s best interests, the trial court must analyze four factors:

1. The prospective advantages of the move in improving the custodial parent’s and child’s quality of life,
2. The integrity of the custodial parent’s motive for relocation, considering whether it is to defeat or deter visitation by the noncustodial parent,
3. The integrity of the noncustodial parent’s motives for opposing the move,
4. The potential negative impact on the relationship between the noncustodial parent and the child, including whether there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent’s relationship with the child if relocation is allowed, and the likelihood that each parent will comply with such alternate visitation.

Hawkinson v. Hawkinson, 1999 ND 58, ¶¶ 6, 9, 591 N.W.2d 144. “No one factor dominates.” State ex rel. Melting v. Ness, 1999 ND 73, ¶ 8, 592 N.W.2d 565.

[¶ 6] Lisa graduated from UND in 1996 with a degree in Textiles, Clothing and Merchandising. Lisa testified she works in a secretarial position at the University of North Dakota at a salary of $15,482, with family health insurance, retirement program, life insurance, paid vacation and sick time. She testified she lives in student housing for $285 per month, for which she qualified by taking college classes, which she has dropped. She testified she has been offered a secretarial position in a Houston, Texas, law firm, where her brother-in-law works, at a salary of $22,-000 per year, with health insurance and paid vacation and sick time after 90 days in the new job. She testified the cost of living in Grand Forks is higher than in Houston. She testified she and Faith would stay with her sister and brother-in-law in a Houston suburb for “maybe three months” rent-free, which would allow her “to save for deposits as well as rent.” She testified the job in Houston would provide “better pay while I look for something, you know, that would match with the degree that I did attain.” Thus, there is evidence supporting the trial court’s findings about the prospective advantages of the move. There also is evidence supporting the trial court’s findings on the other factors involved. We conclude the trial court’s finding the proposed move to Texas is in Faith’s best interest is not clearly erroneous.

[¶ 7] The guardian ad litem appointed in the parties’ divorce proceedings testified at the hearing on Lisa’s motion to move with Faith to Texas, and Mark contends the trial court erred in not considering his testimony and recommendations. The weight assigned to a guardian ad li-tem’s testimony is within the trial court’s discretion. Schmaltz v. Schmaltz, 1998 ND 212, ¶ 9, 586 N.W.2d 852. A trial court should not regard a guardian ad litem’s testimony as conclusive. Id. We presume the trial court considered the testimony presented by the guardian ad litem. See State v. Syvertson, 1999 ND 134, ¶ 21 n. 3, 597 N.W.2d 652, cert. denied, — U.S. —, 120 S.Ct. 380, 145 L.Ed.2d 297 (1999) (stating “a trial court is presumed to have done its duty”); In re J.A.G., 552 N.W.2d 317, 324 (N.D.1996) (stating a juvenile court is deemed to have properly considered and weighed relevant information supplied for its consideration); Overboe v. Odegaard, 496 N.W.2d 574, 578 (N.D.1993) (stating if the record is silent on the matter of proof, it will be presumed the trial court heard and considered evidence necessary to give judgment). We conclude Mark has failed to overcome the presumption the trial court properly considered the testimony presented by the guardian ad litem.

[¶ 8] Although we affirm the trial court’s order, we recognize that, because of the positions they took on the move itself, the parties may not have addressed visitation

with as much flexibility as they could have. “Children benefit from healthy relationships with both parents; divorced parents must seek to facilitate such bonds.” Hen-drickson v. Hendrickson, 2000 ND 1, ¶ 25, 603 N.W.2d 896. For Faith’s benefit, we encourage the parties to reach a visitation agreement which will accommodate their schedules and memorialize their agreement in an amended judgment.

[¶ 9] The district court’s order is affirmed.

[¶ 10] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, CAROL RONNING KAPSNER, DALE V. SANDSTROM, JJ., concur.

      . The first three factors were enunciated in Stout v. Stout, 1997 ND 61, ¶ 34, 560 N.W.2d 903. The fourth factor stated in Hawkinson is a reformulation of a fourth factor enunciated in Stout, at ¶ 34.


author: VANDE WALLE, Chief Justice.

text:
    2000 ND 121
    STATE of North Dakota, Plaintiff and Appellee, v. James E. MARTIN, Defendant and Appellant.
    No. 990255.
    Supreme Court of North Dakota.
    June 8, 2000.
    Linda L. Hickman, Williston, for plaintiff and appellee.
    Thomas K. Schoppert, Schoppert Law Firm, Minot, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] James Martin appealed from a judgment finding him guilty of driving under the influence of intoxicating liquor. Martin argues he is entitled to a new trial because the Williams County jury panel selection process was not random. We affirm.

[¶ 2] After being charged in Williams County with driving under the influence, Martin was found guilty by a jury in July 1999. Before trial, Martin objected to the ratio of men to women that constituted the jury panel and moved to reconstitute the panel or for a continuance to reconstitute the panel. Martin specifically requested ten women be randomly removed and ten men be randomly called to “cure” the gender imbalance. The district court denied Martin’s motion. Martin does not directly challenge that denial in this appeal.

[¶ 3] The Uniform Jury Selection and Service Act, found at Chapter 27-09.1, N.D.C.C., provides standards relating to jury selection. It also authorizes the “supreme court of this state” to “make and amend rules, not inconsistent with this chapter, regulating the selection and service of jurors.” N.D.C.C. § 27-09.1-18. This Court has promulgated Rule 9, N.D.Admin.R., which provides in part:

The State Court Administrator, after consultation with the Jury Standards Committee, shall file a jury selection plan with the Clerk of the North Dakota Supreme Court. The plan shall detail the procedures to be followed in selecting and managing jurors in order to implement the policies set forth in Chapter 27-09.1 N.D.C.C.

N.D.Admin.R. 9(3). All courts conducting jury trials are to obtain jury panels in the manner prescribed by this jury selection plan. N.D.Admin.R. 9(2).

[¶ 4] Williams County accomplishes jury selection by creating a randomized master list of potential jurors every two years. The County compiles a list of individuals from those who have voted and from those who have driver’s licenses. From this list, a randomized list of approximately 300 persons is created by computer. Jurors needed for service are then called sequentially starting at the top of the list and going to the bottom.

[¶ 5] Martin argues the process of jury selection used by Williams County was not random, and thus the jury’s verdict should be overturned. We review whether the Williams County jury panel selection process is random under the de novo standard of review. State v. Torgerson, 2000 ND 105, ¶ 3 (finding whether the Burleigh County jury panel selection process is random is a conclusion of law or mixed question of law and fact reviewed under the de novo standard). Martin must demonstrate a substantial failure by Williams County to comply with Chapter 27-09.1, N.D.C.C. See N.D.C.C. § 27-09.1-12(2).

[¶ 6] In arguing Williams County’s jury selection was not random, Martin cites Standard 3 of the Standards Relating to Juror Selection, which are found in the appendix to the North Dakota Jury Selection Plan. Standard 3 reads:

(a) Random selection procedures shall be used throughout the juror selection process. Any method may be used, manual or automated, that provides each eligible and available person with an equal probability of selection.
(b) Random selection procedures shall be employed in
(i) Selecting persons to be summoned for jury service;
(ii) Assigning prospective jurors to panels; and
(iii) Calling prospective jurors for voir dire.

Martin concedes the selection of the juror pool under subsection (i) was random and the calling of prospective jurors for voir dire under subsection (iii) was random. However, Martin argues random selection procedures were not employed in assigning jurors to panels as required by subsection (ii), because Williams County did not randomly pick jurors for a jury panel from the random list, but instead called jurors for service sequentially in the order of the randomized list.

[¶ 7] Standard 3, which Martin relies on, does not specifically require counties to randomize twice, i.e., randomly pick the jury panel from the already randomized jury pool list. The North Dakota Jury Selection Plan itself is more specific in its description of the juror selection process. It provides in part, “the randomized master list of prospective jurors should be used sequentially from the top of the list to the bottom.” Williams County closely followed this procedure by calling jury panels sequentially from the randomized master list by starting at the top and going to the bottom.

[¶ 8] We recently traversed similar terrain in Torgerson. Torgerson challenged whether Burleigh County’s jury selection process was random. We affirmed Tor-gerson’s conviction because no prejudice or systematic exclusion was demonstrated to establish “a substantial failure to comply with [Chapter 27-09.1].” Id. at ¶ 16; see N.D.C.C. § 27-09.1-12(2). Neither has Martin presented facts that show a cognizable group was excluded in jury selection. While Martin points to the fact significantly more women than men were on the jury panel, he offers no evidence to demonstrate a link between taking jury panels sequentially from the randomized master list and the exclusion of men from the panel. See Torgerson, at ¶ 11 (stating “ ‘appellant offered no evidence below showing a link between ownership of a telephone at one’s residence and membership in the classes appellant asserts were excluded’ ”) (quoting Singleton v. A.L. Lockhart, 871 F.2d 1395, 1399 (8th Cir.1989)).

[¶ 9] The Williams County process specifically complies with the North Dakota Jury Selection Plan; it is also numerical and there is no systematic exclusion of a protected group. See Torgerson, at ¶ 15. Martin has failed to establish “a substantial failure to comply with [Chapter 27-09.1].” See N.D.C.C. 27-09.1-12(2).

[¶ 10] We affirm.

11] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, CAROL RONNING KAPSNER, JJ., concur.

      . The Jury Selection Plan “attempts to incorporate, to the greatest degree possible, the North Dakota Jury Use and Management Standards.... ” Section 1, North Dakota Jury Selection Plan. The Standards are not made part of the plan. If the two conflict, the Plan controls.


text:
    2000 ND 122
    Barbara NEGAARD-COOLEY, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Farstad Oil, Inc., Respondent.
    No. 990341.
    Supreme Court of North Dakota.
    June 8, 2000.

      Dean J. Haas, Dietz, Little & Haas, Bismarck, for claimant and appellant.
    Lawrence A. Dopson, Special Assistant Attorney General, Bismarck, for appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Barbara Negaard-Cooley appealed from a judgment affirming a Workers Compensation Bureau order denying her medical benefits after October 23, 1997, for psychiatric treatment of clinical depression. Because the Bureau failed to explain internal discrepancies in a medical report it relied on to deny Negaard-Cooley’s claim, we reverse the judgment and remand to the Bureau for further proceedings to clarify those discrepancies.

I

[¶ 2] Negaard-Cooley filed a claim for workers compensation benefits in connection with an injury to her left upper extremity on July 16, 1993, while employed as a waitress at Perkins Restaurant in Minot. She had a ganglion cyst removed from her left wrist, a carpal tunnel release, and received physical therapy and injections for a rotator cuff syndrome. Ne-gaard-Cooley was also diagnosed with reflex sympathetic dystrophy (“RSD”) and was given a series of treatments to attempt to alleviate the pain associated with this condition. The Bureau accepted her claim and Negaard-Cooley received total disability benefits until she returned to employment in February 1994.

[¶ 3] Negaard-Cooley filed a second claim in connection with an injury to her right upper extremity on April 18, 1995, while employed as a telemarketer at the Dacotah Marketing Division of Farstad Oil, Inc., in Minot. Negaard-Cooley was diagnosed with right carpal tunnel syndrome and underwent unsuccessful treatments for chronic pain. During this period of time, Negaard-Cooley’s physician began prescribing medication for her depression. Negaard-Cooley’s physician advised her to discontinue working in September 1995. The Bureau accepted Negaard-Cooley’s claim, and reinstated her total disability benefits, which she continues to receive.

[¶ 4] Negaard-Cooley did not receive formal counseling for psychiatric problems until June 1997, following an altercation resulting in her incarceration for assault. She has been receiving psychological counseling and psychiatric treatment since then, and is currently diagnosed with clinical depression. The Bureau accepted responsibility for treatment of Negaard-Coo-ley’s depression following her work injury until October 23,1997.

[¶ 5] After Negaard-Cooley underwent an independent medical examination (“IME”) by a psychologist in March 1998, the Bureau issued an order discontinuing any benefits in connection with her depression beyond October 23,1997, because “the evidence does not indicate that claimant’s continued problem with depression is related to her April 18, 1995, work injury.” Negaard-Cooley has experienced a series of traumatic personal events since her birth in 1952, including a history of spousal abuse, divorce, loss of custody of her children, and the deaths of several loved ones. The Bureau took the position these life experiences of Negaard-Cooley caused her depression, not her work injuries. Ne-gaard-Cooley argued chronic pain from her work injuries was a substantial contributing factor to her clinical depression, for which the Bureau was responsible. Following a hearing on the issue, the administrative law judge (“ALJ”) upheld the Bureau’s order. The ALJ found:

Negaard-Cooley has failed to.prove a cause and effect relationship between her current depression condition and her work injury. Her current depression condition is due to a pre-existing condition which would have progressed similarly in the absence of her April 18, 1995 work injury.... Negaard-Cooley’s current condition is due to a natural progression of her depression condition.

The Bureau adopted the ALJ’s recommended decision, and the district court affirmed the Bureau’s decision.

II

[¶ 6] Negaard-Cooley contends the Bureau’s findings are not supported by the evidence because the Bureau faded to adequately explain the grounds for crediting the opinion of the psychologist who performed the IME, and discrediting the opinions of her treating doctors; and because the Bureau did not adequately evaluate the parts of the IME report favorable to her.

[¶ 7] On appeal, we review the Bureau’s decision. Siewert v. North Dakota Workers Compensation Bureau, 2000 ND 33, ¶ 18, 606 N.W.2d 501. Under N.D.C.C. §§ 28-32-19 and 28-32-21, we must affirm the Bureau’s decision unless its findings of fact are not supported by a preponderance of the evidence, its conclusions of law are not supported by its findings of fact, its decision is not supported by its conclusions of law, its decision is not in accordance with the law or violates the claimant’s constitutional rights, or its rules or procedure deprived the claimant of a fair hearing. Mikkelson v. North Dakota Workers Compensation Bureau, 2000 ND 67, ¶ 7, 609 N.W.2d 74. In determining whether the Bureau’s findings of fact are supported by a preponderance of the evidence, we exercise restraint and do not make independent findings or substitute our judgment for that of the Bureau, but determine only whether a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record. Renault v. North Dakota Workers Compensation Bureau, 1999 ND 187, ¶ 16, 601 N.W.2d 580.

[¶ 8] Negaard-Cooley had the burden of proving by a preponderance of the evidence her depression was causally related to her work injury. See N.D.C.C. § 65-01-11; Siewert, 2000 ND 33, ¶¶15, 20, 606 N.W.2d 501; Kackman v. North Dakota Workers Compensation Bureau, 488 N.W.2d 623, 624-26 (N.D.1992). To establish that causal connection, a claimant need not prove her employment was the sole cause of injury, and it is sufficient if the work condition is a substantial contributing factor to the injury. See Elter v. North Dakota Workers Compensation Bureau, 1999 ND 179, ¶ 15, 599 N.W.2d 315; McDaniel v. North Dakota Workers Compensation Bureau, 1997 ND 154, ¶ 12, 567 N.W.2d 833. The Bureau was presented with several medical opinions about the possible cause of Negaard-Cooley’s clinical depression. These opinions were rendered by Dr. Melissa Ray, an osteopath who treated Negaard-Cooley from 1995 until March 1998; Dr. Barry Greenspan, a psychologist who treated her from June 1997 until June 1998; Dr. John Garofalo, a psychiatrist who treated her from September 1997 until February 1998; Dr. Thomas Eick, a psychiatrist who has treated her since April 1998; and Dr. John Hung, the IME psychologist who examined Negaard-Cooley and her medical records on March 24, 1998.

[¶ 9] Dr. Ray noted that Negaard-Coo-ley’s problems with her upper extremities caused severe daily pain and were impacting her activities. On March 16, 1995, Dr. Ray reported, “[a]s a result of this injury, this patient reports that she experiences insomnia secondary to pain and depression secondary to her limitations.” Dr. Ray first prescribed an antidepressant drug for Negaard-Cooley in August 1995. Dr. Ray was unable to assist Negaard-Cooley with her physical problems, and advised her in March 1996 to enter a chronic pain program to help her live with those problems. After referring her for psychological counseling in June 1997, Dr. Ray noted Ne-gaard-Cooley’s “depression is more or less a personal condition. Her depression is, in part, relating to her physical pain as well, but there is certainly a fairly good amount of a personal component at present here.”

[¶ 10] Dr. Greenspan first saw Negaard-Cooley in June 1997, and noted one of her problems was “[depression, [a]nxiety, and pain due to RSD.” Dr. Greenspan’s notes indicate several sessions were spent focusing on her chronic pain, the limited use of her hands, and visualizing to cope with the pain. Dr. Greenspan further noted in an individual readmission assessment that Negaard-Cooley “is experiencing ongoing depression and anxiety. There are apparently some issues from her past that need to be dealt with, namely, her two previous marriages and loss of custody of her children.” In a July 15, 1997 session note, Dr. Greenspan also indicated Negaard-Cooley was “overwhelmed at [one and a half years of age], both for her own surgery [to remove a growth on her back], her father’s death, and how her mother impacted upon Barbara in dealing with her own stresses and anxieties.”

[¶ 11] Dr. Garofalo reported on September 4, 1997, that Negaard-Cooley described a “depressed mood for approximately 25 years, which has gotten increasingly worse since her injury happened four years ago.” Negaard-Cooley had seen a psychiatrist a few times nine years earlier but quit because she did not like the person. Dr. Garofalo noted several problem areas the pain program needed to address: “[ineffective individual coping, disturbed support network;” “[l]ack of post treatment support for healthy psychosocial functioning;” “[depression;” “[disturbed interpersonal relationships;” and “[a]nxiety/panie disorder.” Dr. Garofalo diagnosed Negaard-Cooley with “[d]epressive disorder, secondary to chronic pain” and suspected “a somewhat passive-dependent personality disorder.” In February 1998, Dr. Garofalo listed her diagnosis as “[d]epressive disorder, not otherwise specified, secondary to chronic pain.”

[¶ 12] In June 1998, Dr. Eick noted Ne-gaard-Cooley had “Adjustment Disorder w/Depressed and Anxious Features (chronic in nature) Secondary to her chronic illness.” In a June 1998 letter to the Bureau, Dr. Eick said “I do feel that her depression is secondary and directly related to her chronic medical and physical problems. This would also include the chronic pain that she deals with as well.”

[¶ 13] On the advice of Dr. Ray and Dr. Garofalo, the Bureau had Negaard-Cooley undergo an independent psychiatric evaluation “to document if the patient’s ongoing need for psychiatric care is relating to the work injury or not.” Dr. Hung issued a 20-page IME report, in which he diagnosed her with “a clinical depression at this time, along with anxiety features.” Dr. Hung reported “[t]here are strong indications that the difficulties with depression and anxiety dated back to age 18 when she was in a dysfunctional marriage with physical abuse by an alcoholic husband,” and “[s]ince then there has been subsequent difficulties with depression' and stress, usually associated with situational stressors such as losing custody of her children, death of significant other, and work-related physical injuries.” Dr. Hung also diagnosed Negaard-Cooley with so-matoform pain disorder, which is a pain disorder associated with both psychological factors and a general medical condition. This diagnosis was made because of Ne-gaard-Cooley’s “chronic pain focus, subjective complaints that are inconsistent with and/or disproportionate to objective findings, her self-limiting lifestyle marked disability along with a self-perception of total vocational disability, as well the role that psychological factors (her depression, anxiety, and personality disorder especially with inadequate coping mechanisms) are contributing to her physical complaints.” Dr. Hung also observed Negaard-Cooley’s “longstanding history of multiple dysfunctional relationships (including her current one) and her grossly ineffective and self-defeating coping style are consistent with the .presence of a personality disorder, with dependent, avoidant and self-defeating features.”

[¶ 14] Dr. Hung concluded:

There are indications that at the time of her 04-18-95 right arm injury, Ms. Ne-gaard-Cooley was already experiencing difficulties with depression and anxiety, related to limitations in physical activities stemming from her 07-93 work injury, grief over the sudden death of a boyfriend of four years whom she had planned on marrying, unresolved grief over loss of custody of her children, and being involved in a dysfunctional relationship with her new boyfriend who was verbally abusive. There may also have been some features of a somatoform pain disorder related to her left upper extremity difficulties from the 07-93 injury, although I cannot ascertain that within a reasonable degree of psychological certainty. Ms. Negaard-Cooley’s personality disorder and her history of multiple dysfunctional relationships, inadequate social support network, and ineffectual individual coping are all longstanding and predated her 04-95 work injury.
It is likely that Ms. Negaard-Cooley’s 04-18-95 right arm injury and ensuing physical difficulties aggravated the aforementioned depression. However, by the time that she completed the TLC pain management program around 10-97, Ms. Negaard-Cooley’s depression was primarily related to the difficulties in her dysfunctional relationship with her boyfriend, her self-perception of total vocational disability, and the consequences of her longstanding maladaptive personality style (ineffectual coping, inadequate social support network, no direction in her life). Similarly, while the 04-18-95 right arm injury may have aggravated or precipitated the somatoform pain disorder, by 10-97 Ms. Negaard-Cooley’s chronic pain focus and somato-form pain disorder was mediated by other factors including her self-perception of disability, secondary gains associated with being disabled (financial compensation, being excused from functioning in a productive and independent manner), the likely influences of other disabled role models (her stepfather since the 1970’s, her older sister for the past three years), and of course Ms. Negaard-Coo-ley’s depression related to unresolved grief over various past losses. It is my opinion, within a reasonable degree of psychological certainty, that at this time there is no significant relationship between Ms. Negaard-Cooley’s depression/pain disorder and her 04-95 injury. The personality disorder of course predated the 04-95 work injury, and was not caused by that injury although her personality disorder likely plays a contributing role in Ms. Negaard-Cooley’s maladaptive responses to her injury.
It is my opinion, within a reasonable degree of psychological certainty, that Ms. Negaard-Cooley’s personality disorder would likely have persisted or progressed in the absence of her 04-95 work injury. It is also my opinion, within' a reasonable degree of psychological certainty, that Ms. Negaard-Cooley’s depression would have persisted in the absence of her 04-95 work injury. I am unable to state within a reasonable degree of psychological certainty whether Ms. Negaard-Cooley’s somatoform pain disorder would likely have progressed in the absence of her 04-95 work injury.

[¶ 15] The Bureau forwarded a copy of Dr. Hung’s report to Dr. Garofalo, who responded “[i]t is my opinion that Ms. Negaard did, indeed, suffer with depression prior to her industrial accident. The industrial accident, however, has worsened said depression.” Dr. Garofalo would not comment on the ultimate question of the Bureau’s liability for Negaard-Cooley’s treatment, stating he “has chosen to practice clinical psychiatry and to avoid litigation and/or adversarial situations with patients. This would be quite contra therapeutic and not contributory to the transference relationship.”

[¶ 16] Negaard-Cooley and Dr. Eick testified at the administrative hearing. Dr. Eick agreed that Negaard-Cooley’s depression is attributable to her chronic pain syndrome and characterized the chronic pain as the “main factor” causing her depression. Dr. Eick also testified he did not believe Negaard-Cooley had a personality disorder.

[¶ 17] The ALJ’s findings are essentially based on parts of Dr. Hung’s report. The ALJ found Dr. Hung’s credentials “impressive” and his opinions “most persuasive based upon the evidence as a whole.” The ALJ noted Dr. Garofalo and Dr. Hung disagreed about whether Negaard-Coo-ley’s depression had been worsened by her work injury, but reasoned “[t]his disagreement is really nothing more than a matter of degree.” The ALJ also found Dr. Hung to be “far more objective” concerning Ne-gaard-Cooley’s current condition than either Dr. Garofalo or Dr. Eick, and characterized Dr. Eick’s opinion that she did not have a personality disorder “to be near incredible.”

[¶ 18] It is the Bureau’s responsibility to weigh the credibility of medical evidence, but in resolving conflicts the Bureau must consider the entire record, clarify inconsistencies, and explain its reasons for disregarding medical evidence favorable to the claimant. Hibl v. North Dakota Workers Compensation Bureau, 1998 ND 198, ¶ 10, 586 N.W.2d 167; Geek v. North Dakota Workers Compensation Bureau, 1998 ND 158, ¶ 5, 583 N.W.2d 621; Symington v. North Dakota Workers Compensation Bureau, 545 N.W.2d 806, 808 (N.D.1996). In Otto v. North Dakota Workers Compensation Bureau, 533 N.W.2d 703, 706 (N.D.1995), this Court explained:

“Although the ultimate resolution of conflicting medical testimony falls with the agency, this Court has required the Bureau to clarify discrepancies among inconsistent medical reports.... Initially, we limited the requirement of adequate clarification of discrepancies in medical testimony to situations involving internal conflicts in the attending physician’s report.'... Later, we expanded the requirement to include situations involving two reports by the same physician which contained conflicting opinions .... Finally, in 1985, this Court remanded a decision to clarify discrepancies between two different physicians .... Although we are continuing to shape the principles which govern the Bureau’s treatment of inconsistent medical evidence, we must continually bear in mind the basic rule first articulated by Justice Sand: ‘Normally, it is within the province of the administrative agency, not the courts, to weigh conflicting medical opinions and to resolve these conflicts.’...”

(Quoting Kopp v. North Dakota Workers Compensation Bureau, 462 N.W.2d 132, 135 (N.D.1990) (citations omitted)). See also Wherry v. North Dakota State Hospital, 498 N.W.2d 136,139 (N.D.1993).

[¶ 19] Though the Bureau may resolve conflicts between medical opinions, the authority to reject medical evidence selectively does not permit the Bureau to pick and choose in an unreasoned manner. Boger v. North Dakota Workers Compensation Bureau, 1999 ND 192, ¶ 11, 600 N.W.2d 877. Furthermore, while the Bureau may not make credibility findings in order to “sew up” the claimant’s chances for a successful appeal, those findings will be upheld if they are supported by a preponderance of the evidence. Ehli v. North Dakota Workers Compensation Bureau, 447 N.W.2d 313, 317 (N.D.1989).

[¶ 20] We reject Negaard-Cooley’s argument the Bureau failed to adequately explain and clarify the discrepancies between the reports of her treating doctors and the report of Dr. Hung. The ALJ essentially found Dr. Hung to be a more credible and unbiased witness under the circumstances of this case. We have declined to establish a presumption entitling a treating doctor’s opinion to “great weight.” Siewert, 2000 ND 33, ¶ 25, 606 N.W.2d 501. The Bureau did not fail in its duty to adequately explain its reasons for rejecting the opinions of Negaard-Cooley’s treating doctors.

[¶ 21] The Bureau, however, has failed to clarify glaring discrepancies in Dr. Hung’s IME report. Dr. Hung indicates in several parts of his report that Negaard-Cooley’s depression is causally related to her work injuries. After noting Negaard-Cooley’s depression dated back to when she was 18 years old, Dr. Hung states she has had subsequent difficulties with depression “usually associated with ... work-related physical injuries.” Dr. Hung suggested Negaard-Cooley’s “self-perception of total vocational disability” plays a role in her depression and contributes to her physical complaints. Dr. Hung also said it is “likely” Negaard-Cooley’s 1995 “right arm injury and ensuing physical difficulties aggravated” her depression. Finally, even in his conclusion that there was no significant relationship between Negaard-Cooley’s 1995 work injury and her depression, he specifically uses the phrase, “depression/pain disorder,” thus linking those conditions together. These parts of Dr. Hung’s report support Ne-gaard-Cooley’s claim that her work injuries and chronic pain were a substantial contributing factor to her clinical depression. Although the Bureau may reject certain medical evidence because it is not as credible as other medical evidence, if the rejected evidence weighs substantially in favor of the claimant, it is even more necessary for the Bureau to explain discrepancies inherent in the evidence upon which it relies in denying benefits when those discrepancies are consistent with the rejected evidence. The Bureau simply ignored the parts of Dr. Hung’s IME report which were favorable to Negaard-Cooley and relied on the parts of the report that supported its decision.

[¶ 22] Because the Bureau relied on parts of the IME report favorable to its decision and ignored parts of the report unfavorable to its decision, we conclude the Bureau’s decision is not supported by a preponderance of the evidence. See, e.g., McDaniel, 1997 ND 154, ¶¶ 17-20, 567 N.W.2d 833; Claim of Bromley, 304 N.W.2d 412, 418 (N.D.1981).

Ill

[¶ 23] The judgment is reversed and the case is remanded to the Bureau for further proceedings to clarify the discrepancies in Dr. Hung’s IME report.

[¶ 24] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, JJ., concur.

[¶ 25] The Honorable CAROL RON-NING KAPSNER disqualified herself subsequent to oral argument and did not participate in this decision.


author: GILBERTSON, Justice.

text:
    2000 SD 68
    John GILCHRIST, Claimant and Appellee, v. TRAIL KING INDUSTRIES, INC., Employer, Self-Insurer and Appellant.
    No. 21156.
    Supreme Court of South Dakota.
    Considered on Briefs March 22, 2000.
    Decided May 24, 2000.

      J.M. Grossenburg Winner, and Rick Johnson of Johnson, Eklund, Nicholson, Peterson & Fox Gregory, for claimant and appellee.
    Susan Brunick Simons of Davenport, Evans Hurwitz & Smith, Sioux Falls, for employer, self-insurer and appellant.
   GILBERTSON, Justice.

[¶ 1.] Employer Trail King Industries, Inc., (Trail King) appeals the circuit court’s ruling that Claimant John Gilchrist (Gilchrist) is entitled to worker’s compensation benefits for his right carpal tunnel condition and the ruling that his psychological disability resulted from his work-related physical injuries. We affirm.

FACTS AND PROCEDURE

[¶ 2.] The facts of this case are set out in detail in Gilchrist v. Trail King Industries, Inc. and Rehabilitation Strategies, Inc., (Gilchrist I) 2000 SD 67, 612 N.W.2d 10. However, we will briefly highlight those facts essential to resolution of this case. Gilchrist brought this claim after he suffered an injury while working in the scope of his employment at Trail King. He was climbing off a manlift when he slipped and a ring on his right hand caught on a safety bracket, leaving him hanging from the manlift before falling to the floor. He suffered immediate injuries to a finger, his neck, back, and right rotator cuff (shoulder). Gilchrist developed carpal tunnel syndrome in his right hand and subsequently suffered from depression.

[¶ 3.] On November 15, 1995, Gilchrist filed a worker’s compensation claim for his injuries with the Department of Labor (Department). The Department issued a decision in December 1997, ruling that Gilchrist was entitled to the rotator cuff and carpal tunnel surgery on his right hand, but that his claimed total disability from severe depression was not caused by the work injury. In February 1998, Gilchrist appealed to the Sixth Judicial Circuit. The circuit court reversed the Department’s ruling on Gilchrist’s psychological disability claim and found it to be work-related and compensable. However, the circuit court remanded the case back to the Department for a determination of whether Gilchrist unreasonably refused or neglected to have surgery for his right rotator cuff damage, because the Department failed to rule on the issue. Upon remand, in its February 18, 1999 amended decision, the Department ruled Gilchrist did not unreasonably refuse or neglect to avail himself of medical or surgical treatment. After a second appeal, the circuit court affirmed. Trail King appeals, raising the following issues for our review:

1. Whether the Department’s ruling that Gilchrist’s right carpal tunnel condition was causally related to his September 1, 1994 injury was clearly erroneous.
2. Whether the circuit court’s ruling that Gilchrist’s psychological condition was causally related to his employment was clearly erroneous.
3. Whether Gilchrist unreasonably refused or neglected to avail himself of medical care.

STANDARD OF REVIEW

[¶ 4.] Our standard of review pursuant to SDCL 1-26-36 requires us to give great weight to the Department on factual questions. Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228 (citing Helms v. Lynn’s, Inc., 1996 SD 8, ¶¶ 9-10, 542 N.W.2d 764, 766; Finch v. Northwest Sch. Dist. No. 52-3, 417 N.W.2d 875, 878 (S.D.1988)). This Court reviews agency findings in the same manner as the circuit court in deciding whether they were clearly erroneous in light of all the evidence. Id. (citing Matter of Northwestern Bell Tel. Co., 382 N.W.2d 413, 415 (S.D.1986)). Only if after a review of the entire record we are definitely and firmly convinced a mistake has been committed will we reverse. Id. (citing Spitzack v. Berg Corp., 532 N.W.2d 72, 75 (S.D.1995) (citing Day v. John Morrell & Co., 490 N.W.2d 720, 723 (S.D.1992))). When the issue is a question of law, the actions of the agency are fully reviewable. Kester v. Colonial Manor of Custer, 1997 SD 127, ¶ 15, 571 N.W.2d 376, 379 (citing Loewen v. Hyman Freightways, Inc., 1997 SD 2, ¶ 6, 557 N.W.2d 764, 766 (citing Caldwell v. John Morrell & Co., 489 N.W.2d 353, 357 (S.D.1992); Egemo v. Flores, 470 N.W.2d 817, 820 (S.D.1991))). “We review the findings based on deposition testimony and documentary evidence under a de novo standard of review.” Id. ¶ 15, 571 N.W.2d at 380 (citing Hanten v. Palace Builders, Inc., 1997 SD 3, ¶ 8, 558 N.W.2d 76-78).

ANALYSIS AND DECISION

[¶ 5.] 1. Whether the Department’s ruling that Gilchrist’s right carpal tunnel condition was causally related to his September 1, 1994 injury was clearly erroneous.

[¶ 6.] Trail King argues the Department was clearly erroneous in ruling Gilchrist’s carpal tunnel syndrome in his right hand and arm was work-related. We disagree.

[¶ 7.] In order to collect worker’s compensation benefits, Gilchrist must establish a causal relationship between his injury and his employment. Kester, 1997 SD 127, ¶ 17, 571 N.W.2d at 380 (citing Caldwell, 489 N.W.2d at 357). “This causation requirement does not mean that the employee must prove that [his] employment was the proximate, direct, or sole cause of [his] injury; rather the employee must show that [his] employment was a ‘contributing factor ’ to [his] injury.” Id. (citing Caldwell, 489 N.W.2d at 358) (emphasis in original). We find the medical evidence supports the Department’s conclusion that Gilchrist’s right carpal tunnel condition was work-related.

[¶ 8.] Dr. Cho was Gilchrist’s treating doctor in December 1994, January 1995 and May 1996, when she gave an opinion that his right carpal tunnel condition was not work-related. However, these opinions were made without the benefit of the medical records of Dr. Adams and Dr. Christensen. On September 16, 1994, Dr. Adams stated in his medical records, “[n]oted the onset of neck pain, simultaneous complaints discomforts about [Gilchrist’s] hands, and in a delayed manner, numbness, numbness being noted predominantly about the ulnar borders of both sides ... describes no prior history of injury or traumatic event.” On December 20, 1994, Dr. McKenzie, for Dr. Adams, noted:

[Gilchrist] does apparently have either a partial vs. full rotator cuff tear here. He has been having more problems with numbness to both hands. An EMG study done on 12-16-94 shows a severely advanced left carpal tunnel and a moderately advanced right ... fit him with cock-up wrist splints at nite-time[sic] .... (emphasis added).

Dr. Christensen, who first treated Gilchrist, noted in a medical record dated September 8, 1994, seven days after the injury, “[t]he patient also complained of paresthesia of both arms.” Dr. Christensen also noted consistently in medical records on September 19 and 27 that Gilchrist was experiencing paresthesia of both hands and upper extremities.

[¶ 9.] In her affidavit dated January 14, 1997, Dr. Cho repudiated her earlier opinions that Gilchrist’s carpal tunnel condition was not work-related, stating she had not been furnished records from either Dr. Christensen or Dr. Adams when she made her earlier diagnosis. She stated: “Kathy Burns, rehabilitation nurse, had not kept me fully advised of John Gilchrist’s ongoing treatment by other physicians at the time work releases were requested of me and at the time that opinions were requested of me concerning Mr. Gilchrist’s wrist problems.” Dr. Cho also indicated in her affidavit that prior to his September 1, 1994 injury, Gilchrist had received a clean bill of health.

[¶ 10.] Dr. Cho also testified in her June 24, 1997 deposition that Gilchrist’s carpal tunnel condition was work-related:

The right side I think related, whatever portion, from the work injury ... [Gilchrist] probably has preexisting carpal tunnel on both hands. However, [Gilchrist] has been asymptomatic. Right hand was injured. Yes, swelling can be involved from the injuries. When swelling happened at the wrist, it can compress the nerve further, become symptomatic. That’s why I’m saying the right side seems to be related to work injury.

Thus, Dr. Cho’s opinion, based upon reasonable medical probability, was that “[Gilchrist’s] right carpal tunnel condition was ‘caused and/or triggered and aggravated by his September 1, 1994 accidental injury at work.’ ”

[¶ 11.] There is substantial evidence in the record to support Dr. Cho’s final opinion. First, the record contains the notes from the medical records of Drs. Christensen and Adams mentioned above. Further, on January 28, 1997, Dr. Adams concurred in his affidavit with Dr. Cho that Gilchrist’s carpal tunnel condition was “caused and/or triggered and aggravated by his September 1, 1994 accidental injury at work.”

[¶ 12.] Finally, even Trail King’s independent medical examiner gave the same opinion. After Gilchrist was injured, Trail King, a self-insured employer, began paying worker’s compensation benefits to him, including medical expenses. After Gilchrist participated in physical therapy for eight weeks, Trail King hired RSI to oversee his rehabilitation program. Kathy Burns, an employee of RSI, was assigned to Gilchrist’s case, although Dr. Cho continued to be Gilchrist’s primary treating physiatrist. Burns asked Dr. David Hov-ersten, a Sioux Falls orthopedic surgeon, to examine Gilchrist and give a second opinion as to his carpal tunnel syndrome. After examining Gilchrist, Dr. Hoversten testified at his deposition on May 8, 1997 that Gilchrist’s carpal tunnel condition was in some way related to his September 1994 injury:

Well, it would make me think that probably it was there beforehand, but not too bad, and that the injury made it seem a lot worse ... On both [sides] ... But certainly the right side would he aggravated more had he had a traction injury to the arm where it irritates the nerves in the neck, and then unit have an affect on the hand, because they are the same nerves. If they’re irritated and sore from the jerk injury on the right arm, then it could make the right hand have more symptoms than before. So it wouldn’t cause it, but it could make it be more symptomatic or worse, (emphasis added).

[¶ 13.] Dr. Hoversten also testified, “[t]he fact is that the nerve tests show pretty severe involvement, and if you’re trying to get him helped and fixed up, you would probably do carpal tunnel release surgery.” Finally, he testified that Gilchrist’s carpal tunnel was at the very least aggravated by the September 1st work injury:

Well, I would think there was very likely a preexisting carpal tunnel condition, and that it was aggravated or likely made worse by the jerking on the arm and the shoulder problem. I think the swelling resulting from poor use of the right shoulder would make the carpal tunnel be more symptomatic. So I think there could be a direct correlation. You would then get into, is it a major cause or is it an aggravation? I would think more in terms of significant aggravation. (emphasis added).

[¶ 14.] “The trier of fact is free to accept all of, part of, or none of, an expert’s opinion.” Kester, 1997 SD 127, ¶ 24, 571 N.W.2d at 380 (citing Hanson v. Penrod Constr. Co., 425 N.W.2d 396, 398 (S.D.1988)). We conclude the Department did not err in accepting the opinion of Dr. Cho, as well as the other medical opinions. The medical evidence establishes the requisite “causal connection” between Gilchrist’s injury and his employment. Id. ¶ 17.

[¶ 15.] Therefore, we conclude the Department’s decision was not clearly erroneous as we find there is substantial evidence in the record to support the Department’s conclusion. Affirmed.

[¶ 16.] 2. Whether the circuit court’s ruling that Gilchrist’s psychological condition was causally related to his employment was clearly erroneous.

[¶ 17.] The Department ruled that Gilchrist had not established his psychological condition was produced by his September 1, 1994 injury, thus precluding any worker’s compensation benefits for the mental disability. The circuit court reversed the Department, finding that the medical evidence established the requisite causal relationship between the work-related accident and Gilchrist’s psychological condition. We agree.

[¶ 18.] As with his physical injury, Gilchrist must establish a causal connection between his injury and his employment. Kester, 1997 SD 127, ¶ 17, 571 N.W.2d at 380 (citing Caldwell, 489 N.W.2d at 357). The causation requirement requires Gilchrist to show his employment was a “contributing factor” to his mental injury. Id. “Where there is no causal relationship the testimony of a medical expert may be necessary to establish the causal connection.” Id. ¶ 19 (citing Howe v. Farmers Coop. Creamery, 81 S.D. 207, 212, 132 N.W.2d 844, 846 (1965)). Here, the parties do not dispute that Gilchrist is totally disabled due to his psychological condition, i.e., his depression. However, Trail King contests Gilchrist’s assertion that his depression is causally related to his work-related injury. It argues Gilchrist became depressed only after his carpal tunnel/rotator cuff surgery was cancelled. Thus, Trail King asserts “[depression based upon alleged treatment due to the handling of a claim for compensation or termination from employment does not render any resulting psychological disability compensable under worker’s compensation.” Gilchrist argues that both his work-related injury and Trail King’s denial of the surgery together caused his depression. Essentially, he argues the Department erred when it found there could only be one cause of his injuries, i.e., Trail King’s denial of the surgery, because he must only prove his injury was a contributing factor to the depression. We agree with Gilchrist.

[¶ 19.] In Everingim v. Good Samaritan Center of New Underwood, 1996 SD 104, 552 N.W.2d 837, this Court held psychological disabilities can be work-related. Since Gilchrist claims his depression was in part caused by his work-related physical injury, to prove his condition is compensa-ble, he must show his depression falls within the physical-mental category as discussed in Everingim. Id. ¶ 25, 552 N.W.2d at 841. A “physical-mental” injury is defined:

When there has been a physical accident or trauma, and claimant’s disability is increased or prolonged by traumatic neurosis, conversion hysteria, or hysterical paralysis, it is now uniformly held that the full disability including the effects of the neurosis is compensable.

Id. (citing IB Larson, Workmen’s Compensation Law, §§ 42.20-42.23 at 7-813 to 7-876).

[¶ 20.] Gilchrist experienced physical trauma when he suffered a rotator-cuff tear, myofascial pain syndrome in the cervical and upper back region and right carpal tunnel syndrome. This physical trauma in turn was a contributing factor to his depression. Two psychiatrists, Dr. David Bean and Dr. Matthew Stanley, have concluded there is a significant causal relationship between Gilchrist’s work injuries and his psychological condition.

[¶ 21.] Dr. Bean, a Sioux Falls psychiatrist, was hired by Trail King to perform an independent forensic psychiatric evaluation of Gilchrist. Dr. Bean diagnosed Gilchrist with Adjustment Disorder with “Depressed and Anxious Mood, Severe,” and with major depression. He also noted physical injuries of right rotator cuff and carpal tunnel syndrome, and that Gilchrist was “significantly disabled” based on his psychological condition. Finally, Dr. Bean concluded:

[Gilchrist’s] psychological disability is in part related to his physical disability as well as an apparent need for more active treatment of his psychological symptomatology with particular considerations of the use of anti-anxiety medication, more aggressive anti-depressive medication treatment, more frequent psychiatric follow-up appointments, introduction of individual psychotherapy, and possible psychiatric hospitalization ... There does appear to be a significant causal relationship between his Workmen’s Compensation injury and his current psychological condition, ie., of an Adjustment Disorder and Major Depression ... The other problems that have flowed from his Workmen’s Compensation injury, that have contributed to his psychological disability, include termination of his work, termination of his insurance, failure to achieve a surgical correction of his medical problems, and significant economic problems ... It is my opinion that his psychological condition has been “aggravated” due to the prolongation of his physical disability due to the lack of surgical correction of his rotator cuff syndrome as well as his right carpal tunnel syndrome, (emphasis added).

[¶ 22.] In reaching his opinion, Dr. Bean, relied on the medical records of Dr. Stanley, Gilchrist’s treating psychiatrist. Dr. Stanley stated on February 4, 1997, that Gilchrist was totally disabled at that time. He also concluded:

It does appear that [Gilchrist’s] [mental] problems are specifically related to the September 1, 1994 work injury. Although I cannot state that the injury itself was the cause of the depression, it does appear that the depression ivas directly related to the injuries and the subsequent difficulties that Mr. Gilchrist encountered since September 1, 199⅛. He note appears to be in the very difficult situation of having his physical symptoms exacerbate his depression and vice versa. I believe that my opinions as stated above are based on a reasonable medical certainty, (emphasis added).

Thus, Dr. Stanley believed Gilchrist’s depression flowed from, and was causally related to, his physical injuries.

[¶ 23.] Dr. Bean also noted that Dr. Hov-ersten had recognized early on in Gilchrist’s treatment that he was depressed. Dr. Bean states “[i]t is of note that in an evaluation by David Hoversten, orthopedic surgeon, dated December 22, 1994, Dr. Hoversten noted ‘significant discouragement and depression due to the prolongation of his problems and slow recovery.’ ” Gilchrist’s surgery had been scheduled for February 24, 1995. He was told on or around February 3, 1995 that Trail King would authorize the rotator cuff surgery but not the carpal tunnel surgery. Thus, Gilchrist was experiencing depression approximately two months before his carpal tunnel/rotator cuff was denied by Trail King. We find this evidence refutes Trail King’s claim that Gilchrist’s depression was caused solely by the cancellation of the surgery and resulting financial problems.

[¶ 24.] Moreover, Gilchrist had no prior history of depression before his September 1, 1994 work injury. Gilchrist had been healthy, active and never missed a day of work. After the injury, he often complained of not feeling well, and was embarrassed about the way he looked, stood and walked, and experienced many frequent crying episodes. Gilchrist’s wife, Sheila, testified that he had “always been outgoing, worked outside, always worked, always happy ... He just loved life. He is so different now. He’s so — getting so introverted. I don’t think - I mean he feels really humiliated.” In fact, it was Sheila who sought mental health care treatment for Gilchrist. She testified that on one occasion after he received his injury, she came home from work and Gilchrist was “sitting in the living room with a shotgun beside him on the sofa ... He said we’d be better off without him. He couldn’t get any help, he couldn’t work, and he was - he was just so humiliated. He’s never been that way.”

[¶ 25.] Dr. Bean’s medical testimony is une.ontroverted. His opinion that there is a significant causal relationship between Gilchrist’s physical injury and his psychological condition establishes the requisite causal relationship, rendering Gilchrist’s depression compensable. The circuit court’s reversal of the Department is affirmed.

[¶ 26.] 3. Whether Gilchrist unreasonably refused or neglected to avail himself of medical care.

[¶ 27.] Trail King argues Gilchrist’s depression as well as his physical symptoms associated with his right shoulder condition were aggravated due to his refusal to undergo right rotator cuff surgery, which was approved as early as 1995. Gilchrist responds that his refusal of the shoulder surgery was reasonable under the circumstances and any aggravation was the fault of Trail King, for refusing to authorize the combined right rotator cuff and carpal tunnel surgeries.

[¶ 28.] SDCL 62-4-43 states, in pertinent part:

If the injured employee unreasonably refuses or neglects to avail himself of medical or surgical treatment, the employer is not liable for an aggravation of such injury due to such refusal and neglect and the department of labor may suspend, reduce or limit the compensation otherwise payable.

[¶ 29.] Gilchrist scheduled a surgery for February 24, 1995 with Dr. Hoversten for both his right rotator cuff and his right carpal tunnel. Betty Mostek, of Dr. Hov-ersten’s office contacted Sharon Crider at Risk Administration Services, Trail King’s third party administrator, to determine if pre-authorization was necessary for these surgeries. Crider informed Mostek that Trail King would only pre-authorize the shoulder surgery because it was awaiting Dr. Cho’s opinion whether the carpal tunnel condition was work-related.

[¶ 30.] Dr. Hoversten testified it would have been “good medical practice” to do both surgeries simultaneously, mostly for the patient’s convenience, although the two procedures could have been performed separately. Dr. Adams also informed Kathy Burns that he would do the rotator cuff repair on Gilchrist’s right shoulder and the carpal tunnel surgery simultaneously.

[¶ 31.] On February 3, 1995, Mostek informed Gilchrist that only the right rotator cuff surgery had been authorized, and Trail King would not fund the carpal tunnel procedure. Gilchrist told Mostek to “thank” Dr. Hoversten for “everything,” but that he could not go through with the surgery because his worker’s compensation carrier had been “jerking him around,” and he did not have the financial resources to have the carpal tunnel surgery done. Trail King did not authorize the carpal tunnel surgery until after the Department ordered it to do so in 1997. Gilchrist has since undergone the surgeries.

[¶ 32.] After a review of the record, we conclude the Department’s finding that Gilchrist did not unreasonably refuse surgical treatment in this case is not clearly erroneous. Initially, we note “[t]he reasonableness of an employee’s neglect or refusal to submit to treatment is a question of fact to be determined by [the Department].” Klein Industrial Salvage v. Dep’t. of Industry, Labor & HR, 80 Wis.2d 457, 259 N.W.2d 124, 125 (1977) (citing Chain Belt Co. v. Industrial Comm., 188 Wis. 414, 417, 206 N.W. 209 (1925)). We give deference to the Department on findings of fact. Sopko, 1998 SD 8, ¶ 6, 575 N.W.2d at 228 (citations omitted).

[¶ 33.] The circuit court found that Gilchrist was never specifically offered the isolated treatment of right rotator cuff surgery, which Trail King claims he unreasonably refused. We agree with the circuit court. Trail King offered Gilchrist a combined rotator euff/carpal tunnel surgery, which he accepted. Gilchrist made it clear that if Trail King was going to finance both surgeries, he preferred Dr. Hover-sten to perform the procedures. Trail King then refused to authorize the carpal tunnel portion. Implicit in SDCL 62-4-43 is the premise that the employer made medical or surgical treatment available. In this case, Trail King did not make the combined right rotator cuff and carpal tunnel surgery available. One cannot be found to unreasonably refuse what has never been offered in the first place. Klein, 259 N.W.2d at 126 (citing Universal Rundle Corp. v. Industrial Comm., 271 Wis. 578, 582, 74 N.W.2d 193 (1956); Banner Coffee Co. v. Billig, 170 Wis. 157, 161, 174 N.W. 544 (1919)); see also Flores v. Workmen’s Compensation Appeals Bd., 36 Cal.App.3d 388, 111 Cal.Rptr. 424, 427 (1973) (interpreting a statute similar to SDCL 62-4-43 to mean that “a tender of medical or surgical treatment by the employer [] is an essential prerequisite to any possible forfeiture.... ”).

[¶ 34.] Moreover, the Department found that Dr. Hoversten suggested to Gilchrist that he undergo the combined surgery because it was good medical practice. It was reasonable for Gilchrist to refuse to undergo rotator cuff surgery in isolation. He would have continued to experience pain from the carpal tunnel, even after a successful shoulder surgery, as his wrist condition would have gone unaddressed.- Dr. Hoversten testified, “[personally if my hands were that bad, I would probably want to have the surgical release [for carpal tunnel], too.”

[¶ 35.] Gilchrist testified he did not have the money to pay for carpal tunnel surgery, as he was unemployed by that point and had no other available form of insurance. His health insurance with Trail King had been terminated in February of 1995. It was reasonable for Gilchrist to avoid the financial burden of undergoing a costly medical procedure he could not afford. Gilchrist subsequently inquired whether Medicare would pay for the surgeries when he became eligible for Social Security Disability benefits. However, he did not become eligible for Medicare until March or April of 1997. By this time, the Department had already ordered Trail King to pay for the carpal tunnel surgery. Thus, it is apparent Gilchrist made a reasonable attempt to find available options to pay for the surgery.

[¶ 36.] We recognize that Gilchrist was not completely cooperative with Trail King after he became injured. In December 1994, Dr. Cho stated Gilchrist could perform light-duty work at Trail King, with certain restrictions. Gilchrist could operate a forklift, except when he was taking Darvocet. He met with Norm Tarbell, Loss Control Manager at Trail King, to discuss returning to work. Gilchrist informed Tarbell he did not feel he was ready to return to work and that he was not feeling well. Despite this, Trail King sent Gilchrist a letter the next day advising him he was expected to return to work within 48 hours of receipt of the letter. Gilchrist never returned to work at Trail King.

[¶ 37.] During this time, Gilchrist was also advised that due to his partial release by Dr. Cho to work four hours per day, his benefits were reduced to temporary partial disability based upon this partial ability to work. Dr. Adams agreed with Dr. Cho’s opinion regarding Gilchrist’s ability to return to work. However, Dr. Cho stated in her subsequent affidavit that at the time work releases were requested of her, she had not been fully advised of Gilchrist’s ongoing treatment and condition. Thus, Dr. Cho was not aware at the time she gave her approval for work release that Drs. Christensen and Adams had noted symptoms of carpal tunnel syndrome. She also was not aware at that time that as early as December, 1994, Dr. Hoversten had recognized symptoms of depression in Gilchrist.

[¶ 38.] The circuit court noted “[t]here was definitely a communication failure between [Trail King] and [Gilchrist].” Yet, despite this, the circuit court found the Department’s ruling that Gilchrist did not unreasonably refuse the shoulder surgery was not clearly erroneous. We agree that the Department’s decision is supported by the record. Gilchrist was beginning to experience depression. He testified at the hearing that he first began feeling depressed “[w]hen I lost everything. I was hurting, and [Trail King] took my job away, and I didn’t have any money coming in.” He also testified that after he was told he had to report to work within 48 hours, or he would be terminated:

It just built up after that, and I - all the - all the doctors I owed and - and all the expenses I was running up, I - I just figured that I could just eliminate everybody’s headache. They wouldn’t have to worry about paying for anything any more. It was always - it was a fight and a hassle from the minute Kathy [Burns] came on ... Both Norm [Tarbell] and Kathy would just beat me up....

[¶ 39.] Gilchrist admitted he was aware that temporary partial disability checks were available for him at Trail King. Despite his financial need, he made no attempt to obtain them. This further supports a finding that Gilchrist was experiencing depression and not thinking rationally.

[¶ 40.] The Department observed Gilchrist testify about his injuries, depression and the manner Trail King’s denial of the combined surgeries affected him. The Department was in the best position to judge Gilchrist’s credibility while he testified. Wagaman v. Sioux Falls Constr., 1998 SD 27, ¶ 43, 576 N.W.2d 237, 244. Given that, and after a review of the deposition testimony and medical records, we cannot say it was clearly erroneous to find that Gilchrist did not unreasonably refuse medical treatment. ‘We do not look for reasons to reverse, even if we would not have made a similar decision ... but confine our review to a determination whether the record contains substantial evidence to support the agency’s decision.” Fenner v. Trimac Transp., Inc., 1996 SD 121, ¶ 15, 554 N.W.2d 485, 489 (internal citation omitted). Such substantial evidence exists in this case.

[¶ 41.] Affirmed.

[¶ 42.] MILLER, Chief Justice, and SABERS, AMUNDSON and KONENKAMP, Justices, concur.

      . In Gilchrist I, we affirmed the circuit court's grant of summary judgment on Gilchrist's claims of bad faith, wrongful termination and intentional infliction of emotional distress in favor of defendant Rehabilitation Strategies, Inc.

      . Paresthesia is defined as "an abnormal spontaneous sensation; such as burning, pricking, tickling, or tingling." Stedman's Medical Dictionary 1032 (1976).

      . After its amendment in 1995, SDCL 62-1-1(7) now provides:
      A mental injury is compensable only if a compensable physical injury is and remains a major contributing cause of the mental injury, as shown by clear and convincing evidence. A mental injury is any psychological, psychiatric, or emotional condition for which compensation is sought.

      . Trail King claims Gilchrist failed to answer its mail and phone calls to him, refused to answer the door when a representative of Trail King attempted to personally contact him and failed to provide medical records from Dr. Leland to Dr. Christensen. Trail King further claims it was issuing compensation checks to Gilchrist but when it advised his attorney of this, Gilchrist failed to pick them up.

      . Based on our resolution of this issue, we conclude, as did the circuit court, the issue of whether Gilchrist aggravated his injuries, is moot.