author: SANDSTROM, Justice.

text:
    2005 ND 79
    Carla EDINGER, Petitioner and Appellant v. THE GOVERNING AUTHORITY OF the STUTSMAN COUNTY CORRECTIONAL CENTER AND LAW ENFORCEMENT CENTER, Respondent and Appellee.
    No. 20040233.
    Supreme Court of North Dakota.
    April 26, 2005.

      Michael Geiermann, Schulz Lerviek Geiermann & Bergeson Law Offices, P.C., Bismarck, ND, for petitioner and appellant.
    Gary R. Thune, Pearce & Durick, Bismarck, ND, for respondent and appellee.
   SANDSTROM, Justice.

[¶ 1] Carla E dinger appealed from a district court judgment denying her petition for a writ of mandamus. We affirm, concluding the Governing Authority of the Stutsman County Correctional Center and Law Enforcement Center (“the Governing Authority”) did not violate the open meeting law when it held a closed executive session to discuss Edinger’s complaint about changes in her pay and employment duties.

I

[¶ 2] Edinger works at the Stutsman County Correctional Center. On December 19, 2003, she was informed her employment duties would change and her pay would be reduced. The changes in duties and pay were not related to a disciplinary action, but resulted from a reorganization of positions.

[¶ 3] On January 20, 2004, Edinger’s attorney wrote a letter to the administrator of the Stutsman County Correctional Center, requesting clarification of whatever appeal rights Edinger might have and indicating that Edinger intended to appeal the employment decision. The Stutsman County State’s Attorney telephoned Ed-inger’s attorney and advised him there was no substantive appeal available to Edinger, but indicated Edinger could seek an “audience” with the personnel committee or the county board.

[If 4] A few days after this telephone conversation, the Governing Authority held an open public meeting. During this meeting, the Governing Authority decided to go into executive session to discuss potential legal actions relating to the job reclassifications. Members of the public in attendance were asked to leave the meeting room, and the Governing Authority met in executive session with the State’s Attorney and tape-recorded those proceedings.

[¶ 5] Believing that the Governing Authority’s decision to meet in executive session violated the open meeting law, Ed-inger requested that she be provided a copy of the tape recording of the executive session. When the Governing Authority denied her request, Edinger formally requested an Attorney General’s opinion under N.D.C.C. § 44-04-21.1. The Attorney General issued an opinion concluding the Governing Authority had not violated the open meeting law when it met in executive session.

[¶ 6] Edinger then filed a petition for a writ of mandamus in the district court, seeking to compel the Governing Authority to provide a copy of the tape. The district court determined the Governing Authority’s discussion of the reclassification issues fell within the “attorney consultation” exemption from the open meeting law, and denied Edinger’s petition for a writ of mandamus. Judgment was entered dismissing the action with prejudice. Edinger has appealed to this Court, arguing that the Governing Authority’s decision to meet in executive session violated the open meeting law.

[¶ 7] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. §§ 27-05-06 and 32-34-01. See Tooley v. Aim, 515 N.W.2d 137, 138-39 (N.D.1994). Edinger’s appeal was timely under N.D.RApp.P. 4(a)(1). This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II

[¶ 8] Section 32-34-01, N.D.C.C., governs issuance of writs of mandamus:

The writ of mandamus may be issued by the supreme and district courts to any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled and from which the party is precluded unlawfully by such inferior tribunal, corporation, board, or person.

A petitioner for a writ of mandamus must demonstrate a clear legal right to performance of the particular act sought to be compelled by the writ, and must demonstrate that there is no other plain, speedy, and adequate remedy in the ordinary course of law. Kouba v. Hoeven, 2004 ND 185, ¶ 5, 687 N.W.2d 491; Wutzke v. Hoberg, 2004 ND 42, ¶ 3, 675 N.W.2d 179. Issuance of a writ of mandamus is left to the sound discretion of the trial court. Kouba, at ¶ 5; Wutzke, at ¶ 3. This Court will not reverse a trial court’s denial of a petition for a writ of mandamus unless the trial court has abused its discretion. Wutzke, at ¶ 3; Nagel v. City of Bismarck, 2004 ND 9, ¶ 10, 673 N.W.2d 267. A trial court abuses its discretion only if it acts in an arbitrary, unreasonable, or capricious manner, or if it misapplies or misinterprets the law. Kouba, at ¶ 5; Wutzke, at ¶ 3.

Ill

[¶ 9] Under N.D.C.C. § 44-04-19, meetings of the governing body of a public entity must ordinarily be open to the public. The parties agree, meetings of the Governing Authority are covered by the statute. The Governing Authority claims, however, that it was allowed to close the public meeting and go into executive session to consult with the State’s Attorney about possible litigation or administrative appeals arising from the job reclassifica-tions at the Stutsman County Correctional Center. Section 44-04-19.1(2), N.D.C.C., allows a governing body to close a meeting to consult with its attorney:

Attorney consultation is exempt from section 44-04-19. That portion of a meeting of a governing body during which an attorney consultation occurs may be closed by the governing body under section 44-04-19.2.

The scope of the attorney-consultation exemption is set out in N.D.C.C. § 44-04-19.1(4):

“Attorney consultation” means any discussion between a governing body and its attorney in instances in which the governing body seeks or receives the attorney’s advice regarding and in anticipation of reasonably predictable civil or criminal litigation or adversarial administrative proceedings or concerning pending civil or criminal litigation or pending adversarial administrative proceedings. Mere presence or participation of an attorney at a meeting is not sufficient to constitute attorney consultation.

The statute defines adversarial administrative proceedings:

“Adversarial administrative proceedings” include only those administrative proceedings where the administrative agency or institution of higher education acts as a complainant, respondent, or decisionmaker in an adverse administrative proceeding. This term does not refer to those instances where the administrative agency or institution acts in its own rulemaking capacity.

N.D.C.C. § 44-04-19.1(5).

[¶ 10] The dispositive issue presented on appeal is whether the January 20, 2004, letter from Edinger’s attorney to the administrator of the Stutsman County Correctional Center could be reasonably interpreted as creating an anticipation of “reasonably predictable civil or criminal litigation or adversarial administrative proceedings” under N.D.C.C. § 44-04-19.1(4). In her brief on appeal, Edinger characterizes the January 20 letter as merely a request for clarification of whatever appeal procedures were available:

Read in context, this letter is one which asks [the administrator of the Stutsman County Correctional Center] to clarify the administrative procedures available to Ms. Edinger and other county employees who may be considering some type of administrative appeal of employment actions taken by the Governing Authority. It must be noted at this point that there is nothing in the letter of January 20, 2004, or any subsequent correspondence which threatens litigation against the Stutsman County Governing Authority for its actions involving Edinger or any other employee. At best, the letter is one which asks for a clarification of available grievance or appeal procedures.

[¶ 11] The actual language of the January 20 letter, however, goes well beyond a simple request for “clarification” of available procedures, and directly states that Edinger would be taking further .action. The letter includes the following statements:

• There is no doubt that Ms. Edinger will be appealing the decision to demote her.
• Once you have properly advised us of the correct procedures, I will be filing the appeal on her behalf.
• I am sure that once we have resolved the issue of the correct procedure, there will be other grievances and appeals filed in regards to actions you have taken in regards to other employees.

The letter further questions whether Ed-inger may be entitled to the same rights as state employees regarding grievances, and suggests that “Ms. Edinger would be entitled to a whole host of administrative remedies which would include remedies not only at the county level but also at the state level.”

[¶ 12] Edinger suggests that because the letter did not directly threaten litigation, it did not provide the basis for application of the attornéy-eonsultation exemption to the open meeting law. The statute does not say, however, that there has to be either pending or threatened litigation. Rather, it provides an exemption when there will be a discussion between a governing body and its attorney to receive “the attorney’s advice regarding and in anticipation, of reasonably predictable civil or criminal litigation or adversarial administrative proceedings.” This language indicates the governing body may consult its attorney if there is a reasonable probability of some form of legal action, either litigation or an administrative proceeding.

[¶ 13] The Attorney General reviewed the January'20, 2004, letter and concluded it was reasonable for the Governing Authority to believe there was a “realistic and tangible threat of litigation or an adversarial administrative proceeding, or both.” N.D. Op. Atty. Gen. 2004-0-10, at 5. Formal opinions of the Attorney General are entitled to respect, and courts should follow them if they are persuasive. Roe v. Doe, 2002 ND 136, ¶ 12, 649 N.W.2d 566; North Dakota Fair Housing Council, Inc. v. Peterson, 2001 ND 81, ¶¶ 19, 40, 625 N.W.2d 551. Although not binding on the courts, “‘an Attorney General’s official opinion nonetheless has important bearing on the construction and interpretation of a statute.’ ” North Dakota Fair Housing Council, at ¶ 42 (quoting Hughes v. State Farm Mut. Auto. Ins. Co., 236 N.W.2d 870, 876 (N.D. 1975)). Particularly persuasive is the Attorney General’s interpretation of the statutory limits of the attorney-consultation exemption:

As noted above, a governing body may close a portion of an open meeting for attorney consultation. The mere presence of the public entity’s attorney at the meeting is not enough. The meeting must be held to receive and discuss the attorney’s advice regarding pending or reasonably predictable civil or criminal litigation or adversarial administrative proceedings. The . phrase “reasonably predictable” requires a realistic and tangible threat of litigation or adversarial administrative proceedings, and not a mere fear or potential of being a party to litigation or an adversarial administrative proceeding. Section 44-04-19.1, N.D.C.C., does not require a governing body to wait until the moment before a lawsuit or administrative appeal is filed before obtaining its attorney’s advice in an executive session.

N.D. Op. Atty. Gen. 2004-0-10, at 5 (citations omitted). Although a remote possibility of litigation or adversarial administrative proceedings is not enough to trigger the attorney-consultation exemption, an express threat of legal action is not required. A pending legal action or an express, unequivocal threat of legal action is not required. When the information available to the governing body suggests a reasonable probability of litigation or adversarial administrative proceedings, N.D.C.C. § 44-04-19.1 authorizes the governing body to close a portion of a meeting to receive and discuss the advice of its attorney.

[¶ 14] In the January 20, 2004, letter, Edinger’s counsel repeatedly indicated Ed-inger would be taking further action on her grievance. Counsel stated in the letter: “There is no doubt that Ms. Edinger will be appealing the decision to demote her”; “I will be filing the appeal on her behalf’; and, “I am sure ... there will be other grievances and appeals filed” on behalf of other employees. The letter clearly could be interpreted as suggesting “reasonably predictable civil ... litigation or adversarial administrative proceedings.” Accordingly, the Governing Authority did not violate the open meeting law when it convened in executive session to discuss potential legal actions arising from the job reclassifications.

[¶ 15] Edinger also contends the district court erred in concluding adversarial administrative proceedings were reasonably predictable in this case because the Governing Authority is not an “administrative agency” as defined in N.D.C.C. § 28-32-01(2). Edinger argues that under that statutory definition, the term “administrative agency” encompasses only entities of the executive branch of state government and that the Governing Authority therefore is not an “administrative agency.” Because N.D.C.C. § 44-04-19.1(5) defines “adversarial administrative proceedings” as proceedings “where the administrative agency ... acts as a complainant, respondent, or decisionmaker,” Edinger argues a threatened administrative appeal at the county level is not an adversarial administrative proceeding under N.D.C.C. § 44-04-19.1(5) and cannot provide the basis for invoking the attorney-consultation exemption to the open meeting law.

[¶ 16] The statutory definition of administrative agency that Edinger seeks to apply in this case is codified in N.D.C.C. ch. 28-32, the Administrative Agencies Practice Act, not in the open meeting law. When a word is defined in one section of the Century Code, that definition will ordinarily apply to use of the word in other sections of the Century Code, except when a contrary intent plainly appears. See N.D.C.C. § 1-01-09; In re Guardianship of Shatzka, 2003 ND 147, ¶ 5, 669 N.W.2d 95; Adams County Record v. Greater North Dakota Ass’n, 529 N.W.2d 830, 834 (N.D.1995). When a statutory definition, however, is limited by prefatory language such as “in this title” or “for the purposes of this title,” the legislature has expressly evidenced its intent that the definition have no application beyond that act. See Northern X-Ray Co. v. State, 542 N.W.2d 733, 739 (N.D.1996) (VandeWalle, C.J., concurring specially); State v. Pacheco, 506 N.W.2d 408, 410 (N.D.1993); Ames v. Rose Township Bd. of Township Supervisors, 502 N.W.2d 845, 849 (N.D.1993).

[¶ 17] The statutory definition relied upon by Edinger begins with the phrase: “In this chapter ... ‘Administrative agency’ or ‘agency means .... ” N.D.C.C. § 28-32-01. The legislature has therefore expressly indicated its intent that the statutory definitions in that section apply only to the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. In addition, the legislature has recognized in another part of the Century Code that there may be administrative agencies at the county level. See N.D.C.C. § 11-10-25 (prohibiting nepotism by the head of a county “administrative department or agency”). We conclude the definition of “administrative agency” in N.D.C.C. § 28-32-01(2) does not apply to the attorney-consultation exemption to the open meeting law under N.D.C.C. § 44-04-19.1.

[¶ 18] Our primary objective in construing a statute is to ascertain the intent of the legislature. Pratt v. Altendorf, 2005 ND 32, ¶ 12, 692 N.W.2d 115. We construe statutes to avoid absurd or ludicrous results. State v. Leppert, 2003 ND 15, ¶ 16, 656 N.W.2d 718; Berg v. Berg, 2000 ND 36, ¶ 24, 606 N.W.2d 895. Construction of the statute as urged by Edinger would mean, for example, that if an administrative appeal were provided for county employees affected by an adverse employment decision, the county’s governing body could not privately consult with its attorney regarding potential strategies, including possible settlement options. A state administrative agency, however, would have the authority to privately consult with counsel. We do not believe it was the intent of the legislature to limit the authority of a local governing body in this manner. Accordingly, we conclude the term “administrative agency” in N.D.C.C. § 44-04-19.1(5) is not limited to agencies of the state executive branch, and the attorney-consultation exemption applies to reasonably predictable adversarial administrative proceedings of the Governing Authority.

IV

[¶ 19] We conclude the trial court did not abuse its discretion in denying Edinger’s petition for a writ of mandamus. The judgment is affirmed.

[¶ 20] GERALD W. VANDE WALLE, C.J., and CAROL RONNING KAPSNER and MARY MUEHLEN MARING, JJ„ concur.

[¶ 21] The Honorable William A. Neu-mann, a member of the Court when this case was heard, resigned effective March 14, 2005, and did not participate in this decision.


source: Caselaw Access Project

license: Public Domain

text:
    2005 ND 83
    Glenn W. SORLIE, Claimant and Appellant v. WORKFORCE SAFETY & INSURANCE, Appellee. Bobcat/Ingersoll Rand, Respondent and Appellee.
    No. 20040250.
    Supreme Court of North Dakota.
    April 29, 2005.

      Stephen D. Little, Dietz & Little Lawyers, Bismarck, N.D., for claimant and appellant.
    Lawrence E. King, Special Assistant Attorney General, Bismarck, N.D., for appel-lee Workforce Safety and Insurance.
    Leslie Bakken Oliver (on brief), Vogel Law Firm, Bismarck, N.D., for appellee Bobcat/Ingersoll Rand.
   SANDSTROM, Justice.

[¶ 1] Glenn W. Sorlie appealed from a district court judgment affirming a Workforce Safety and Insurance (“WSI”) order denying him further disability benefits. We conclude Sorlie’s procedural due process rights were not violated by WSI’s retroactive notice of intention to discontinue benefits and WSI’s decision to deny Sorlie further disability benefits is supported by a preponderance of the evidence. We affirm.

I

[¶ 2] On March 7, 2000, Sorlie injured his right shoulder, neck, and arm while employed as a welder with Bobcat/Inger-soll Rand (“Bobcat”) in Bismarck. WSI accepted Sorlie’s claim and paid him disability benefits from June 5, 2000, through October 17, 2000. On October 30, 2000, WSI issued an order denying further benefits on the ground that Sorlie’s ongoing physical problems were the result of degenerative disc disease rather than the employment injury. Sorlie requested a formal hearing, after which WSI issued an order on July 9, 2001, concluding that Sor-lie’s cervical condition and degenerative disc disease were not causally related to his employment. After unsuccessfully petitioning for reconsideration, Sorlie appealed WSI’s order to the district court. Meanwhile, Sorlie returned to work at Bobcat in a modified position for periods after October 2001. However, on September 5, 2002, before the district court had rendered its decision in his appeal, Sorlie was terminated from employment with Bobcat because he had been absent for three consecutive days without reporting the absences.

[¶ 3] On January 20, 2003, the district court reversed WSI’s decision. The court ruled “the greater weight of the evidence [establishes] that [Sorlie’s] injuries are work related,” and the court remanded the case to WSI “for purposes of establishing [Sorlie’s] statutory benefits.” WSI did not appeal from the district court’s decision, but proceeded to calculate Sorlie’s benefits after he provided WSI further information. Because temporary total disability benefits had been paid through mid-October 2000 and Sorlie returned to full-time work at Bobcat on February 25, 2002, WSI awarded benefits from October 21, 2000, to February 24, 2002, except for some periods in between during which Sorlie earned 90 percent of his pre-injury wages. On April 1, 2003, WSI paid Sorlie $19,011.92 in past-due disability benefits.

[¶ 4] Also on April 1, 2003, WSI issued Sorlie a retroactive notice of intention to discontinue benefits as of February 25, 2002, because Sorlie had returned to full-time employment at Bobcat on that date. Sorlie argued his benefits should not be discontinued because he was then “unemployed and disabled from performing his regular employment duties.” WSI issued an order denying further benefits on June 16, 2003, reasoning Sorlie had not shown any wage loss after February 24, 2002, because he had returned to full-time employment with Bobcat and was later terminated from employment for reasons unrelated to his injury. Sorlie demanded a formal hearing. Following the hearing, the administrative law judge (“ALJ”) found: Sorlie was able to perform his mod--ified duties at Bobcat after February 24, 2002; he was terminated “for reasons that have nothing to do with his disability”; and he did not make “a good faith work trial or work search” after his termination. The ALJ concluded:

1.Subsection 65-05-08(6), N.D.C.C., provides that disability benefits must be paid for the period of disability provided that the employee shows that the inability to obtain employment or to earn as • much as the employee earned at the time of injury is due to physical limitation related to the injury, and that any. wage loss claimed is the result of the compensable injury. Mr. Sorlie argues that there is sufficient evidence of. his disability. Mr. Sorlie may very well be disabled, but he must still show that his , inability to obtain employment is due to his work-related injury and that any wage loss claimed is the result of his compensable injury. He has not shown that his inability to obtain employment is because of his compensable injury. The greater weight of the evidence shows that he was able to perform his duties at Bobcat before his termination for reasons unrelated to his work injury. Thereafter, Mr. Sorlie worked one two-week job as a pipe fitter, but there is no evidence that he was unsuccessful at this job because of his work injury. Nor is there any evidence, other than Mr. Sor-lie’s own statements, that his inability to obtain further employment is due to his work injury. 'In fact, Mr. Sorlie has made few attempts to find work since his termination. Mr. Sorlie has not shown by a preponderance of the evidence that his disability has made him unable to obtain employment or to' earn as much as he earned at the time of his injury. Accordingly, Mr. Sorlie- is not entitled to further disability benefits after February 24, 2002.

WSI adopted the ALJ’s recommended findings and conclusions, and the district court affirmed WSI’s order.

[¶ 5] The district'court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. §§ 27-05-06, 28-32-42, and 65-10-01. Sorlie’s appeal is timely under N.D.R.App.P. 4(a) and N.D.C.C. § 28-32-49. This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 28-32-49.

II

[¶-6] ' On appeal, Sorlie argues he was denied procedural due process when WSI terminated his disability benefits and WSI’s decision is not supported by the greater weight of the evidence.

[¶ 7] We exercise a limited review in cases governed by the Administrative Agencies Practice Act. In Elshaug v. Workforce Safety and Ins., 2003 ND 177, ¶ 12, 671 N.W.2d 784, we explained:

Under N.D.C.C. §§ 28-32-46 and 28-32-49, the district court,.and this Court on further appeal, must affirm an administrative agency decision unless one of the following is present:
1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.
We exercise restraint in deciding whether an agency’s findings of fact are supported by a preponderance of the evidence, and we do not make independent findings or substitute our judgment for that of the agency. Barnes v. Workforce Safety and Ins., 2003 ND 141, ¶ 9, 668 N.W.2d 290. “We decide only whether a reasoning mind reasonably could have decided the agency’s findings were proven by the weight of the evidence from the entire record.” Id. “Questions of law, including the interpretation of a statute, are fully reviewable on appeal from an administrative decision.” Id.

A

[¶ 8] Sorlie argues he was denied procedural due process when WSI retroactively terminated his disability benefits, because WSI failed to provide him preter-mination notice, an opportunity to respond, and a prompt post-termination evidentiary hearing.

[¶ 9] Sorlie relies upon Flink v. North Dakota Workers Comp. Bureau, 1998 ND 11, ¶ 14, 574 N.W.2d 784; Frohlich v. North Dakota Workers Comp. Bureau, 556 N.W.2d 297, 301 (N.D.1996); and Beckler v. North Dakota Workers Comp. Bureau, 418 N.W.2d 770, 775 (N.D.1988), which hold that under the federal and state constitutions, due process requires WSI to give a claimant prior notice of termination of disability benefits, a summary of the medical evidence supporting termination, and an opportunity to respond. On April 1, 2003, WSI gave Sorlie a retroactive notice of intention to discontinue benefits effective February 25, 2002, only after the district court had . ruled Sorlie had a com-pensable injury and ordered WSI to calculate his “statutory benefits.” Sorlie argues WSI’s initial “wrongful” termination of benefits cannot excuse its subsequent failure to provide prompt pretermination notice.

[¶ 10] The pretermination procedures articulated in Beckler, 418 N.W.2d at 775, and its progeny “are not applicable to a lump sum award.... ” Witcher v. North Dakota Workers Comp. Bureau, 1999 ND 225, ¶ 22, 602 N.W.2d 704. Sorlie’s argument in this case is similar to an argument rejected by this Court in Nemec v. North Dakota Workers Comp. Bureau, 543 N.W.2d 233 (N.D.1996). In Nemec, the claimant, whose employer had modified her duties because of a previous injury, injured herself at work on March 12, 1992. The claimant filed a claim for benefits with the Bureau on March 17, 1992. On May 19, 1992, the Bureau issued an order awarding the claimant disability benefits for the March 12 injury and simultaneously issued a notice of intention to discontinue benefits effective March 17, 1992, because medical evidence indicated she was able to return to work on March 18, 1992. The claimant relied on Beckler and argued she had a due process right to pretermination notice and an opportunity to be heard before the Bureau retroactively terminated benefits effective March 17, 1992. This Court disagreed:

This Court [in Beckler ] held the right to continuing disability benefits by a claimant already receiving them was a property right giving rise to due process protection. Beckler at 772-773. The Court stressed its holding applied only to termination of continuing benefits, and distinguished a claimant’s rights upon an initial determination of a claim. See Beckler at 772, 774. This Court concluded the Bureau must provide pre-termination notice and a limited opportunity to respond before retroactively terminating ongoing disability benefits. See Beckler at 775.
Beckler is clearly distinguishable from this case. Nemec was not receiving benefits on a continuing basis when she was notified her benefits were terminated. The procedure employed here, with the Bureau simultaneously notifying Nemec that she was entitled to disability benefits for a closed five-day period and that benefits would be terminated effective March 18, 1992, was effectively an award of a single lump-sum disability payment for a five-day period. The claimant has a right to rely upon continuing, regular, on-going payments which trigger[] the due process protections under Beckler. Those same protections do not apply to a one time lump-sum award of disability benefits for a short, closed period of time.

Nemec, 543 N.W.2d at 237-38 (footnote omitted).

[¶ 11] This Court in Nemec, 543 N.W.2d at 238, also rejected the claimant’s argument that under N.D.C.C. § 65-05-08.1(6) she was entitled to pretermination notice and that benefits could not be terminated until 21 days after that notice was given:

As the Bureau points out, Nemec’s urged reading of the statute would lead to absurd results and penalize the Bureau for thoroughly investigating claims. If a claimant filed an application and was entitled to receive disability benefits for a short, closed period of time, the Bureau would be required to pay disability benefits through the period of its investigation, and, once it issued its notice of intent to terminate benefits, benefits would have to continue for 21 additional days. Under Nemec’s reading of the statute, in a case such as this, where Nemec was apparently disabled for only five days, she would have been entitled to benefits under the statute for a period of nearly three months. We construe statutes to avoid absurd and ludicrous results. Tooley v. Alm, 515 N.W.2d 137, 142 (N.D.1994).

This Court held the procedure used by the Bureau did not violate the claimant’s statutory or due process rights. Id.

[¶ 12] Here, WSI originally denied further benefits on October 30, 2000, because it believed Sorlie’s physical problems were not work related. In its January 20, 2003, order, the district court reversed WSI’s decision, ruled Sorlie’s injuries were work related and compensable, and remanded to WSI for calculation of Sorlie’s “statutory benefits.” After doing so, WSI on April 1, 2003, paid Sorlie a lump sum of $19,011.92 for past-due disability benefits and simultaneously issued a notice of intention to discontinue disability benefits effective February 25, 2002, because Sor-lie had returned to full-time employment at Bobcat and was subsequently terminated from employment for reasons unrelated to his work injury. This case differs from Nemec because it involves an erroneous deprivation of compensable benefits that required district court intervention to correct, and Sorlie argues WSI’s original “wrongful” termination of benefits on com-pensability grounds should not excuse its failure to comply with pretermination notice. However, the district court’s January 20, 2003, order remanding the case to WSI for calculation of Sorlie’s benefits effectively restored those lost benefits to him. WSI’s erroneous deprivation of benefits that were fully restored to Sorlie does not in itself entitle him to extra due process procedures. See Levey v. North Dakota Workers Comp. Bureau, 425 N.W.2d 376, 378 (N.D.1988). The district court did not find that WSI acted in bad faith by originally terminating Sorlie’s benefits on compensability grounds. It would have been impractical for WSI to give pretermination notice in February 2002 when Sorlie was not receiving benefits and the parties were in the process of litigating the compensability of Sorlie’s claim.

[¶ 13] We conclude Sorlie’s due process rights were not violated by the procedure used by WSI.

B

[¶ 14] Sorlie argues WSI erred in determining his entitlement to disability benefits on the basis of actual wage loss rather than loss of earning capacity “as [the district court] directed [in its] January 20, 2003” order.

[¶ 15] In its January 20, 2003, order, the district court did not “direct” that WSI determine entitlement to disability benefits on the basis of loss of earning capacity, but “remanded for purposes of establishing [Sorlie’s] statutory benefits.” Sorlie conceded that if WSI had originally paid him the benefits the district court ultimately ordered WSI to retroactively pay him, he would have needed to reapply for disability benefits. When a claimant reapplies for disability benefits, N.D.C.C. § 65-05-08(1) applies:

When disability benefits are discontinued, the organization may not begin payment again unless the injured employee files a reapplication for disability benefits on a form supplied by the organization. In case of reapplication, the award may commence no more than thirty days before the date of reapplication. Disability benefits must be reinstated upon proof by the injured employee that:
a. The employee has sustained a significant change in the compensable medical condition;
b. The employee has sustained an actual wage loss caused by the significant change in the compensable medical condition; and
c. The employee has not retired or voluntarily withdrawn from the job market as defined in section 65-05-09.3.

Under N.D.C.C. § 65-05-08(1), a claimant reapplying for disability benefits must show both a significant change in his medical condition and an actual wage loss caused by the significant change in his compensable medical condition. See In re Beckler, 2005 ND 33, ¶ 9, 692 N.W.2d 483; Bachmeier v. North Dakota Workers Comp. Bureau, 2003 ND 63, ¶ 11, 660 N.W.2d 217; Gronfur v. North Dakota Workers Comp. Fund, 2003 ND 42, ¶¶ 11-12, 658 N.W.2d 337. In Bachmeier, at ¶ 13, and Gronfur, at ¶ 12 (footnote omitted), a majority of this Court rejected the argument that a showing of loss of earning capacity satisfies the actual wage loss requirement of N.D.C.C. § 65-05-08(1), and concluded “[t]o demonstrate an actual loss of wages or remuneration as a result of a change in the claimant’s compensable medical condition, the claimant must necessarily first demonstrate that he was earning wages from employment when the change in his medical condition occurred and must then show that the change caused at least a partial loss of those wages.” Consequently, under the majority view in Bachmeier and Gronfur, “the claimant is required to show that he suffered a significant change in compensable medical condition at the time he was employed and earning wages, and that the change in his medical condition caused an actual loss of those wages.” Beckler, at ¶ 10. Sorlie has provided us with no persuasive reasons why a different standard should be applied when erroneously deprived benefits have been fully restored to the claimant through a court order.

[¶ 16] Moreover, the parties do not dispute that Sorlie was terminated from employment with Bobcat for reasons unrelated to his employment injury. In Wendt v. North Dakota Workers Comp. Bureau, 467 N.W.2d 720, 728 (N.D.1991) (citations omitted), this Court said:

Although it has been stated rather broadly in some decisions that “an employee who is discharged for just cause is not entitled to workers’ compensation benefits,” we agree with those courts which hold that a discharge for just cause does not automatically bar an employee from receiving disability benefits. We adopt the approach set forth by the Minnesota Supreme Court:
“[A] justifiable discharge for misconduct suspends an injured employee’s right to wage loss benefits; but the suspension of entitlement to wage loss benefits will be lifted once it has become demonstrable that the employee’s work-related disability is the cause of the employee’s inability to find or hold new employment. Such a determination should be made upon consideration of the totality of the circumstances including the usual work search ‘requirements.’ ”
In this case, Wendt does not dispute that he was discharged by Steiger for just cause and does not claim that the discharge was in any way related to his back injury....
We conclude that the Bureau could reasonably find that Wendt’s loss of earning capacity was causally related to his discharge for cause rather than from his disability. Wendt may reapply for disability benefits any time in the future when he can demonstrate a causal connection between his disability and a loss in earning capacity.

In Lesmeister v. North Dakota Workers Comp. Bureau, 2003 ND 60, ¶ 31, 659 N.W.2d 350, a majority of this Court noted that Wendt had been modified by the Legislature’s 1991 amendment to N.D.C.C. •§ 65-05-08(1) to require reapplicants for disability benefits to show an actual wage loss, rather than a loss of earning capacity, caused by a significant change in the com-pensable medical condition. We conclude WSI applied the correct standard and did not err in determining Sorlie’s entitlement to disability benefits on the basis of actual wage loss rather than loss of earning capacity.

C

[¶ 17] Sorlie argues that WSI’s decision to deny him further disability benefits is not supported by the greater weight of the evidence.

[¶ 18] Sorlie was released to return to work in a modified position at Bobcat and returned to work on February 25, 2002. He was assigned to work with a robot welder, which met the requirements of his medical work restrictions. Sorlie argued that despite his taking pain medications, his symptoms grew progressively worse while he worked at Bobcat during the spring and summer of 2002 and that he was unable to perform the tasks required of him at his modified work position. Sor-lie claimed that after he was terminated from employment at Bobcat, he continuously looked for employment through the pipefitters’ union and other channels, but was unable to physically perform work as a pipefitter and lacked the skills to obtain employment at jobs that were more physically appropriate for him.

[¶ 19] The ALJ, in findings and conclusions adopted by WSI, rejected Sorlie’s arguments:

7. [After Mr. Sorlie returned to work,] Bobcat’s ergonomics committee reviewed and addressed Mr. Sorlie’s restrictions by adjusting shelving and enhancing the work site to accommodate his restrictions. At the hearing, Mr. Sorlie testified that as he began working full-time, his symptoms were getting worse. Mr. Sorlie did not complain to anyone at Bobcat about problems he was having working on the robot before late July 2002.
8. On July 23, 2002, Mr. Sorlie presented to the medical department at Bobcat, complaining that his left shoulder was sore, that he was unable to work and was going home. Mr. Sorlie told Wendy McNichols, RN, that “he has had bad days in the past and feels today is just one of his bad days.” McNichols offered to make a doctor’s appointment for Sorlie but he declined, stating he would feel better if he went home. Mr. Sorlie also informed Christy Roemmich, COTA/L that his right arm was causing him a lot of discomfort. He stated “that overall his workstation is not the cause of his right arm discomfort and that his surgeon told him he would have days worse than other days. Glen [sic.] feels he is just having a bad day.”
9. On July 24, 2002, Mr. Sorlie returned to work, stating that he had obtained a prescription for Oxycontin and that his shoulder was feeling better.... The next day, Bobcat received a fax from Dr. Killen indicating that Mr. Sor-lie could work while taking Oxycontin.
12. On September 5, 2002, Mr. Sor-lie’s employment with Bobcat Company was terminated for being absent for three consecutive days without reporting such absences. Mr. Sorlie had been absent from work since August 19, 2002, and had not called since August 27, 2002. Mr. Sorlie was incarcerated.
17. On September 29-30, 2003, Mr. Sorlie completed a functional capacity evaluation. The FCE determined that Mr. Sorlie was at the sedentary level of work for full-time work. Jeanne DeK-rey, MPT evaluated the 360 Robot welder position at Bobcat in view of Mr. Sorlie’s FCE. She determined that Mr. Sorlie could handle the position requirements of the job and the mobility requirements, if the right elbow was at his side or supported with regard to alternating hand movements, equipment/tool handling, and arm/elbow movements.
18. At the hearing, Mr. Sorlie testified that he has worked only one pipefit-ting project since his termination from Bobcat. He worked for two weeks in June 2003. He states that he has looked a bit for a cashier job, but “no bites.” He also states that since October 2001, he has been on the building trades union “out of work” list for pipefitting, which indicates that he is available for work. Currently, some days his pain is not a problem and other days he can’t take enough medication. Dr. Arazi is his treating physician now, for pain medication.
20. The greater weight of the evidence does not show that Mr. Sorlie was unable to perform his modified duties at Bobcat after February 24, 2002. Mr. Sorlie’s doctor released him to light duty work following his surgery. Mr. Sorlie’s return to work was gradual and the job was modified to comply with his restrictions. Mr. Sorlie did not complain that he was unable to do the job, and on July 23, 2002, he specifically denied that his workstation was the cause of his difficulties. He attributed the flare-up of pain to one of his bad days. As late as July 26, Mr. Sorlie had indicated his strong desire to work and on August 2, 2002, Dr. Killen had indicated that he could work while on Hydrocodone. Further, there is no dispute that Mr. Sorlie was terminated from Bobcat for reasons that have nothing to do with his disability.
21. The greater weight of the evidence does not indicate that Mr. Sorlie has made a good faith work trial or work search. Mr. Sorlie has worked one two-week job as a pipe fitter since his termination from Bobcat in 2002. There is no evidence that he was unsuccessful in this job because of his work injury. Mr. Sorlie’s work search since his termination has consisted of a few inquiries into a cashier job and placing his name on the union out-of-work list. Mr. Sorlie maintains that no one will hire him because of his disability, but there is no evidence, other than Mr. Sorlie’s own statements, that Mr. Sorlie has not obtained work through this union because of his disability.

[¶ 20] We conclude a reasoning mind reasonably could have decided the ALJ’s findings were proven by the weight of the evidence from the entire record. We conclude WSI did not err in denying Sorlie’s claim for further disability benefits.

Ill

[¶ 21] The judgment is affirmed.

[¶ 22] GERALD W. VANDE WALLE, C.J., WILLIAM F. HODNY, S.J., and MARY MUEHLEN MARING, J., concur.

[¶ 23] The Honorable WILLIAM F. HODNY, Surrogate Judge, sitting in place of KAPSNER, J., disqualified.

[¶ 24] The Honorable WILLIAM A. NEUMANN, a member of the Court when this case was heard, resigned effective March 14, 2005, and did not participate in this decision.


author: CADY, Justice.

text:
    In re the MARRIAGE OF Deann Patricia SCHRINER and John Kenneth Schriner Upon the Petition of Deann Patricia Schriner, Appellee, And Concerning John Kenneth Schriner, Appellant.
    No. 03-1131.
    Supreme Court of Iowa.
    April 29, 2005.

      James W. Affeldt and Robert M. Hogg of Elderkin & Pirnie, P.L.C., Cedar Rapids, for appellant.
    Matthew J. Brandes and Elizabeth Y. Croco of Simmons, Perrine, Albright & Elwood, P.L.C., Cedar Rapids, for appel-lee.
   CADY, Justice.

In this appeal, we must primarily decide whether or not workers’ compensation benefits awarded to one spouse during the marriage become divisible property at the time of the divorce. The district court considered the past and future compensation payments as a divisible asset, and our court of appeals affirmed the district court. On further review, we conclude workers’ compensation benefits received and retained during the marriage are a divisible asset, but future proceeds are the separate property of the injured spouse. We vacate the decision of the court of appeals and affirm the district court decree as modified by this opinion.

I. Background Facts and Proceedings

DeAnn and John Schriner were married for thirty-three years — from 1970 until 2003. They had three children during the marriage. DeAnn stayed home with the children for twelve years while John worked in maintenance and as an electrician. At the time of the divorce, he was employed full-time as an electrician for Quaker Oats. He earned $25.38 per hour. His annual income was $70,181. John generally worked overtime throughout his career.' In 1984, DeAnn began working at the office of the Linn County clerk of court, where she continued to work at the time of the divorce. She earned $15.86 per hour, and her annual income was $28,353.

In May 2001, John suffered a work-related injury to his neck. He filed a workers’ compensation claim and was awarded 125 weeks of benefits at $731.26 per week. At the time of the divorce, John had received eighty-one payments totaling $59,151. He expected to receive forty-four future payments totaling $32,256. John suffered another work-related injury to his lower back in January 2003. He claimed this injury made him unable to work overtime.

DeAnn and John separated in January 2002, and DeAnn petitioned for dissolution of the marriage the following month. Because DeAnn claimed the workers’ compensation benefits received by John were marital property, John retained the funds in a separate account pending the dissolution of marriage.

The case was tried to the district court, which resulted in a decree for- dissolution of marriage on May 29, 2003. The court awarded DeAnn $1400 per month in spousal support until age sixty-six and $700 per month after that time until her death, John’s death, or her remarriage. In awarding spousal support, the trial court included John’s overtime earnings in considering his ability to contribute to DeAnn’s support. The district court equally divided the property of the parties. This resulted in a property award to each party valued at $264,488. In making the property division, the district court included the workers’ compensation award from John’s injury in 2001 as divisible property. Of the $59,151 paid out to John and held in a separate account, the district court awarded DeAnn $22,110 and awarded John $37,041. The district court then awarded the forty-four weeks of remaining benefits, valued at $32,131, to John. DeAnn made no claim to the workers’ compensation benefits payable on account of John’s most recent injury, and the court did not include those benefits in the property distribution scheme.

John- appealed, and we transferred the case to the court of appeals. The court of appeals affirmed the district court decree. On further review, John claims the workers’ compensation award was income and should have been excluded as an item of marital property subject to division by the district court. He also claims his overtime income cannot be considered in determining spousal support because his work injury prevented him from working overtime. He further claims he should not be required to work overtime to support DeAnn when she does not support herself by working overtime.

II. Standard of Review

Our review in dissolution cases is de novo. In re Marriage of Benson, 545 N.W.2d 252, 253 (Iowa 1996); Iowa R.App. P. 6.4. “ ‘Although our review of the trial court’s award is de novo, we accord the trial court considerable latitude in making this determination and will disturb the ruling only when there has been a failure to do equity.’ ” In re Marriage of Romanelli, 570 N.W.2d 761, 763 (Iowa 1997) (citing In re Marriage of Spiegel, 553 N.W.2d 309, 319 (Iowa 1996)).

III. Workers’ Compensation Benefits as Divisible Property

Like most other states, Iowa is known as an “equitable distribution” jurisdiction for purposes of dividing property in a dissolution of marriage. In re Marriage of McNerney, 417 N.W.2d 205, 207 (Iowa 1987) (citing Iowa Code § 598.21(1) (1985)). See generally Joseph A. McKnight, Defining Property Subject to Division at Divorce, 23 Fam. L.Q. 193 (1989). “Equitable distribution” essentially means that courts divide the property of the parties at the time of divorce, except any property excluded from the divisible estate as separate property, in an equitable manner in light of the particular circumstances of the parties. McNerney, 417 N.W.2d at 207.

In Iowa, two types of property, inherited property and gifts received by one party, are specifically excluded by statute from the divisible estate. Iowa Code § 598.21(1) (2003). This property is normally awarded to the individual spouse who owns the property, independent from the equitable distribution process. Yet, this exclusion is not absolute. Iowa has a unique hybrid system that permits the court to divide inherited and gifted property if equity demands in light of the circumstances of a spouse or the children. Id. § 598.21(2). Property not excluded is included in the divisible estate.

Under our statutory distribution scheme, the first task in dividing property is to determine the property subject to division. The second task is to divide this property in an equitable manner according to the factors enumerated in the statute, see id. § 598.21(1), as well as other relevant factors determined by the court in a particular case.

Our statute is written to define divisible property as “all property” of the parties, other than the two classes of excluded property. Id. The statute provides:

Upon every judgment of annulment, dissolution or separate maintenance, the court shall divide the property of the parties and transfer the title of the property accordingly.... The court shall divide all property ... equitably between the parties....

Id. This broad declaration means the property included in the divisible estate includes not only property acquired during the marriage by one or both of the parties, but property owned prior to the marriage by a party. In re Marriage of Brainard, 523 N.W.2d 611, 616 (Iowa Ct.App.1994). Property brought into the marriage by a party is merely a factor to consider by the court, together with all other factors, in exercising its role as an architect of an equitable distribution of property at the end of the marriage. Iowa Code § 598.21(1)(5). More importantly, the statute makes no effort to include or exclude property from the divisible estate by such factors as the nature of the property of the parties, the method of acquisition, or the owner. “All property,” except inherited or gifted property, is included, and the circumstances and underlying nature of the included property are generally considered as factors that impact the second task of determining an equitable division, along with all other relevant factors. See id. § 598.21(l)(a)-(m).

The question presented by this appeal, one of first impression in Iowa, is how an award of workers’ compensation made to one spouse during the marriage fits within the “equitable distribution” framework. John argues that the workers’ compensation award received in this case was predicated on an unscheduled injury resulting in a permanent partial disability and was primarily intended to compensate him for the loss of his earning capacity over his lifetime. See Trade Prof'ls, Inc. v. Shriver, 661 N.W.2d 119, 123 (Iowa 2003) (“To evaluate an unscheduled disability, courts use the industrial method, which measures an employee’s loss of earning capacity.” (citing Simbro v. Delong’s Sportswear, 332 N.W.2d 886, 887 (Iowa 1983))). Consequently, John claims the workers’ compensation award, like inherited and gifted property, should fairly and logically be set aside to him and excluded from the property, division.

The approach advocated by John has been adopted in many other jurisdictions and has become known as the “analytic approach” to distribution of workers’ compensation. See -generally Annotation, Divorce and Separation: Workers’ Compensation as Marital' Property Subject to Distribution, 30 A.L.R.5th 139, 150 (1995) [hereinafter Divorce and Separation]. States that follow this approach primarily look to the underlying nature of the loss that makes up the award. See id. (stating that analytical approach “look[s] to the nature of the underlying loss”). Under this method of distributing workers’ compensation,

[a]ny portion awarded to compensate for lost wages during the marriage or for medical expenses paid with marital funds is marital property. Any portion paid to compensate an individual for lost premarital or postmarital wages or for medical expenses paid with separate funds is the- injured spouse’s separate property. '

Id.

Other states follow what is known as the “mechanistic approach.” Id. Under this approach, a workers’ compensation award is property subject to division “if the award was received, or the right to receive the award accrued, during the marriage.” Id. This approach is commonly used in “equitable distribution” states because it is derived from the underlying statutory directive that all property is equitably distributed except property expressly excluded by statute. This method primarily focuses on the timing of the award. Id.; Drake v. Drake, 555 Pa. 481, 725 A.2d 717, 725 (1999). A few other states treat workers’ compensation benefits “as the sole and separate property of the injured spouse.” Divorce and Separation, 30 A.L.R.5th at 150. This is known as the unitary approach. Id. Still, other courts follow approaches that have no designated classification. Id.

In McNerney, we specifically recognized the various distribution approaches in holding that proceeds received during the marriage from a personal injury lawsuit constituted property subject to an equitable division at the time of the divorce. 417 N.W.2d at 208. In doing so, we concluded it was

more just to allow a trial court the flexibility to divide property equitably, on a case-by-case basis and therefore we -adopt what is called the mechanistic approach.- Settlement proceeds- thus do not automatically'belong to either party.

Id.

While some differences exist between a personal injury award and a workers’ compensation award, the overall approach adopted in McNemey — that is, limiting property excluded from the divisible estate to the specific exclusions established by the statute and relying upon the equitable powers of the court to reach an overall equitable distribution scheme of all of the property — is generally compatible with treating workers’ compensation benefits as a divisible asset. If our legislature had wanted to exclude workers’ compensation benefits from divisible property, we think it would have included the benefits in the list of exceptions along with inherited and gifted property. See State v. Truesdell, 679 N.W.2d 611, 617 (Iowa 2004) (“We apply statutes as written by our legislature, and resort to our rules of construction in the event .of an ambiguity.” (citing State v. Albrecht, 657 N.W.2d 474, 479 (Iowa 2003))). Our statute is very clear. It states: “The court shall divide all property, except inherited property or gifts received by one party equitably....” Iowa Code § 598.21(1) (emphasis added). Because the legislature expressly excluded two items of property from equitable distribution, we can infer that it intended all other property to be equitably distributed. Locate.Plus.Com, Inc. v. Iowa Dep’t of Transp., 650 N.W.2d 609, 618 (Iowa 2002) (“Generally, the express mention of one thing in a statute implies the exclusion of others. Thus, when a legislative body delineates exceptions, it is presumed that no others were created or intended.” (Citations omitted.)).

John seeks to avoid this outcome by claiming that workers’ compensation benefits are not actually property, but income. Thus, he essentially argues that our legislature did not specifically exclude workers’ compensation benefits as divisible property because workers’ compensation benefits are not considered to be property. Moreover, he asserts his specific compensation award largely represented future income.

We recognize that workers’ compensation benefits awarded after a dissolution are considered to be income for purposes of determining child support, whether received in a lump sum or paid weekly. In re Marriage of Swan, 526 N.W.2d 320, 325 (Iowa 1995). Workers’ compensation benefits represent income in a dissolution because the benefits essentially replace income that would otherwise have been earned had the worker not been injured. Id. Yet, this view of workers’ compensation does not mean that benefits received and retained during the marriage cannot be considered property at the time of the divorce. Child support is mainly predicated upon earnings, but retained earnings ultimately become property.

We acknowledge that future earnings of a spouse from employment are not considered to be property at the time of the divorce. See In re Marriage of Horstmann, 263 N.W.2d 885, 891 (Iowa 1978) (advance degree is not itself an asset for property division, but an increased earning capacity is a factor to consider in making an equitable distribution of property). However, even if workers’ compensation proceeds represent future earnings, once received and retained during the marriage, the proceeds become property of the marriage. As property of the marriage, we do not attempt to apportion the proceeds received between lost earnings before the divorce and earnings after the divorce under the approach we adopted in McNer-ney. Thus, our treatment of workers’ compensation proceeds as income means that the benefits become part of the divisible estate when received and retained during the marriage, just as other income becomes property when received and retained during the marriage. This leaves us with the question whether workers’ compensation proceeds received after the divorce can become divisible property.

We have previously held that courts may properly divide some assets in a dissolution of marriage that may have no present value, such as future royalties,.as they are received in the future. In re Marriage of White, 537 N.W.2d 744, 747 (Iowa 1995). However, these assets can be considered part of the divisible estate because they are essentially derived from activities that occurred during the course of the marriage. As with pensions, a future interest is properly considered as a marital asset subject to distribution at the time of the divorce to the extent the future interest accrues during the marriage. See In re Marriage of Howell, 434 N.W.2d 629, 632 (Iowa 1989) (stating that Iowa law normally views pensions as property because they are a form of deferred compensation accrued during the marriage). On the other hand, future earnings from future employment do not accrue during the marriage and are not. property. Consequently, it follows that workers’ compensation proceeds received after the divorce are separate property of the injured spouse. See id. at 632-33 (military disability benefits for injuries in the line of duty are not compensation for past services rendered).

Overall, the approach we adopt towards workers’ compensation benefits allows the trial court the greatest opportunity to accomplish justice in each case. It permits the court to consider the same arguments John urges in support of treating the benefits as separate property in deciding how the benefits should be equitably divided, along with all the other relevant factors and circumstances of each case. See Drake, 725 A.2d at 726-27. For example, the statutory factors considered in reaching an equitable distribution of all property include the age and physical health of the parties, earning capacity of the parties, economic circumstances of each party, including future interests, and any other relevant factors. Iowa Code § 598.21(1). These factors authorize the court to consider the disability of an injured spouse and could support an award of a larger portion of property to a disabled spouse, including a larger portion, or all, of the workers’ compensation benefits. Conversely, the same statutory, factors could permit a court to use workers’ compensation benefits expected to be received by an injured spouse after the divorce as a circumstance to justify an award to the other spouse of a larger portion of the property subject to division. In the end, the award, one way or the other, is a product of both the items of property included in the divisible estate and all other relevant factors that impact the equitable distribution of that property. An equitable distribution does not mean an equal division. See In re Marriage of Webb, 426 N.W.2d 402, 405 (Iowa 1988).

Consistent with McNemey, and our statutory distribution scheme, we hold that workers’ compensation benefits received up to the time of the dissolution are property subject to an equitable division to the extent they have been retained and not spent. Benefits received after the divorce constitute separate property of the injured spouse. We continue to adhere to the mechanistic approach adopted in McNer-ney and rely upon the relevant statutory factors to reach an overall equitable distribution of the property.

In dividing the Schriners’ assets, the district court improperly included the $32,256.44 of workers’ compensation benefits John was yet to receive for his 2001 injury. The remaining benefits should have been treated as future income, not property subject to equitable distribution. The district court included the $32,256.44 in the Schriners’ total assets subject to equitable distribution to arrive at a total of $528,927.21. The court then divided this number in half and awarded each party $264,488.60. Instead, we subtract the $32,256.44 from the Schriners’ total assets. This yields $496,670.77. We divide that amount equally, as the district court did, and find DeAnn should have been awarded $248,335.38, and John should have been awarded $248,335.39. We find no circumstances to justify a division other than an equal award, even excluding the future workers’ compensation payments as divisible property. DeAnn was awarded $16,153.22 more then she should have been awarded. Thus, we find the equalizing payment to DeAnn should be reduced from $22,109.99 to $5956.77.

IY. Inclusion of Overtime Pay in Calculation of Alimony

John’s second argument is that the district court’s alimony award was excessive. His principal complaint is that “the trial court wrongly assumed that John would continue to work significant overtime hours when, in fact, such overtime is unlikely given his age and repeated workplace injuries.” Iowa Code section 598.21(3) provides:

Upon every judgment of annulment, dissolution or separate maintenance, the court may grant an order requiring support payments to either party for a limited or indefinite length of time after considering all of the following:
a. The length of the marriage.
b. The age and physical and emotional health of the parties.
c. The distribution of property made pursuant to subsection 1.
d. The educational level of each party at the time of marriage and at the time the action is commenced.
e. The earning capacity of the party seeking maintenance, including educational background, training, employment skills, work experience, length of absence from the job market, responsibilities for children under either an award of custody or physical care, and the time and expense necessary to acquire sufficient education or training to enable the party to find appropriate employment.
f The feasibility of the party seeking maintenance becoming self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and the length of time necessary to achieve this goal.
g. The tax consequences to each party.
h. Any mutual agreement made by the parties concerning financial or service contributions by one party with the expectation of future reciprocation or compensation by the other party.
i The provisions of an antenuptial agreement.
j. Other factors the court may determine to be relevant in an individual case.

We have never decided whether overtime pay of the obligated spouse should be included in the determination of the amount of alimony. However, in In re Marriage ofBroum, we held that when the “overtime has been consistent, will be consistent, and is somewhat voluntary” and when the “overtime pay is not an anomaly or speculative,” the noncustodial parent’s overtime pay is properly considered in determining the amount of child support due. In re Marriage of Brown, 487 N.W.2d 331, 334 (Iowa 1992). Further, in In re Marriage of Elbert, our court of appeals held the Brown analysis was equally applicable to the calculation of spousal support. In re Marriage of Elbert, 492 N.W.2d 733, 735 (Iowa Ct.App.1992). Several other courts have held that overtime pay may be considered in setting alimony. Christopher Vaeth, Consideration of Obligated Spouse’s Earnings from Overtime or “Second Job” Held in Addition to Regular Full-Time Employment in Alimony or Child Support Awards, 17 A.L.R.5th 143, 164-65 (1994 & Supp.2004); see, e.g., In re Marriage of Vashler, 183 Mont. 444, 600 P.2d 208, 212 (1979); Stuczynski v. Stuczynski, 238 Neb. 368, 471 N.W.2d 122, 126 (1991); In re Marriage of Crump, 138 Or.App. 362, 908 P.2d 839, 843 (1995); Hillberry v. Hillberry, 195 W.Va. 600, 466 S.E.2d 451, 456 (1995).

Although John “questions” whether Brown’s analysis should be applied to alimony awards in general, he primarily argues that his overtime should not considered in this particular case because it is speculative and uncertain. See In re Marriage of Brown, 487 N.W.2d at 333 (“[I]n circumstances where overtime pay appears to be an anomaly or is uncertain or speculative, a deviation from the child support guidelines may be appropriate.” (citing In re Marriage of Close, 478 N.W.2d 852, 854 (Iowa Ct.App.1991))). As DeAnn’s brief correctly notes, the only evidence John has that his continued receipt of overtime pay is uncertain or speculative is his own testimony that “I don’t think I can physically work that many hours any more.... I’m not sure that with the way my back feels right now, 40 hours is about all I can handle.” John did not have any medical restrictions on the hours he could work, and he had continued working overtime after his back injury. The district court apparently did not find John’s testimony convincing in view of the other evidence. We give weight to the district court’s findings of fact, especially with regard to credibility of witnesses. Geisinger v. Geisinger, 202 N.W.2d 44, 46 (Iowa 1972). While John’s overtime may in fact decrease or cease in the future, the fact is that at the time of trial, he was working overtime, and he presented no evidence that he was unable to continue. Thus, the overtime pay was not uncertain or speculative, and the district court properly considered it in setting the amount of alimony. See In re Marriage of Crump, 908 P.2d at 843 (stating that overtime was properly considered “even where husband had health problems and his employer was considering cutting back on the availability of overtime” (citation omitted)). As the court of appeals observed, if John stops working overtime, he can apply for a modification.

We also reject John’s claim that he should not be required to work overtime to meet his spousal support obligation when DeAnn does not work overtime to support herself. An award for spousal support is not a quid pro quo, and the spouse seeking support does not need to work overtime before a court may consider overtime work by the other spouse in fixing the amount of the award. Spousal support is based on all the relevant factors, and there was no evidence in this ease that DeAnn’s earnings were not commensurate with her earning capacity.

Y. Conclusion

We modify the district court judgment to reduce the amount of DeAnn’s equalizing payment from $22,109.99 to $5956.77. We affirm in all other respects. Although John briefed several issues in addition to those we have discussed, these issues were not raised in his application for further review, and we decline to exercise our discretion to consider them. See State v. Doggett, 687 N.W.2d 97, 99 (Iowa 2004) (noting discretion to consider any or all issues raised in application for further review (citing State v. Powell, 684 N.W.2d 235, 237-38 (Iowa 2004); Bokhoven v. Klinker, 474 N.W.2d 553, 557 (Iowa 1991))). We also conclude each party is responsible for his or her own appellate attorney fees. See In re Marriage of Davis, 608 N.W.2d 766, 773 (Iowa 2000) (“An award of appellate attorney fees in a dissolution proceeding is discretionary.” (citing In re Marriage of Ask, 551 N.W.2d 643, 646 (Iowa 1996))).

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED AS MODIFIED.


author: /s/Paul H. Anderson Associate Justice

text:
    Eleanor SZUBA, Respondent, v. WENDY’S INTERNATIONAL and ACE USA, Relators, and Nordian/Medicare Part B, Intervener.
    No. A05-197.
    Supreme Court of Minnesota.
    April 20, 2005.
    Rehearing Denied May 19, 2005.
    Devin J. Murphy, Aafedt, Forde, Gray, et al., Minneapolis, MN, for Appellant.
    William M. Fishman, Borkon, Ramstead, Mariani, Fishman & Carp, Ltd., Minneapolis, MN, for Respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed January 3, 2005, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

Employee is awarded $1,200 in attorney fees.

BY THE COURT

/s/Paul H. Anderson Associate Justice


author: PAGE, J.

text:
    Karen SCHAFER, Appellant, v. JLC FOOD SYSTEMS, INC., d/b/a Perkins Family Restaurant, defendant and third-party plaintiff, Respondent, v. The Restaurant Company, d/b/a Foxtail Foods, third-party defendant, Respondent.
    No. A03-779.
    Supreme Court of Minnesota.
    April 28, 2005.

      Kevin S. Carpenter, Carpenter Injury Law Office, St. Cloud, MN, for Appellant.

      Roger L. Kramer, Matthew P. Kostol-nik, Gislason & Hunter, L.L.P., Minneton-ka, MN, for Respondent JLC Food Systems/Perkins.
    D. Scott Ballou, Patrick M. Biren, Brownson & Ballou, P.L.L.P., Minneapolis, MN, for Respondent The Restaurant Company, d/b/a Foxtail Foods.
   OPINION

PAGE, J.

Appellant Karen Schafer seeks review of the district court’s grant of summary judgment in favor of respondents, JLC Food Systems, Inc., d/b/a Perkins Family Restaurant, and The Restaurant Company, d/b/a Foxtail Foods, in her negligence action alleging that her throat was injured as a result of eating a defective food product — a pumpkin muffin — at a Perkins restaurant. The court of appeals affirmed the district court’s decision, holding that Schafer could not prove a prima facie claim of negligence because she could not identify the object that injured her. Schafer asks us to determine whether a restaurant customer can establish a prima facie claim of negligence against the restaurant where she was served without identifying the specific object that allegedly caused her injury. We reverse the grant of summary judgment and remand to the district court.

The underlying facts of this case are relatively simple and straightforward. On January 27, 2001, Karen Schafer went to a Perkins Restaurant in St. Cloud, Minnesota, with a friend and their daughters. At the restaurant, Schafer ordered a pumpkin muffin. She unwrapped the muffin and, using her fork, placed a piece of the muffin in her mouth. Upon swallowing, she immediately felt a “sharp pain” in her throat and “a choking sensation.” After drinking some water and still feeling as though there was something stuck in her throat, Schafer went directly to a hospital emergency room. Before leaving the restaurant, Schafer’s friend notified a Perkins employee that, as a result of swallowing a piece of the muffin, Schafer was going to the emergency room. The rest of the muffin was not saved.

At the hospital, a doctor told Schafer that she had a cut on her throat, but the doctor did not observe any object that would have caused the cut. Schafer was prescribed a painkiller and released. Two days later, she returned to the emergency room where she was diagnosed with a throat infection and was hospitalized for three days. According to Schafer, it took her about three months to fully recover. Although Schafer is not able to identify what was in the muffin that caused the problems with her throat, she speculated in her deposition that “it had to have been something sharp and hard.”

Schafer sued Perkins, alleging that the pumpkin muffin was in a defective condition unreasonably dangerous to consumers, the defective condition was a direct cause of the injury to her throat, and, as a result of the injury, she suffered damages in the form of medical expenses, loss of earnings, pain, disability, and emotional distress. Perkins, in turn, asserted a third-party claim for contribution against Foxtail Foods, the company that manufactured the muffin mix Perkins used to make the pumpkin muffin.

After some discovery, Perkins and Fox-tail moved for summary judgment, arguing that Schafer had failed to establish a prima facie case of negligence because she could not identify the object in the muffin that caused her injury. The district court granted summary judgment on that basis and the court of appeals affirmed. Schafer v. JLC Food Sys., Inc., No. A03-779, 2004 WL 78022, at *1 (Minn.App. Jan. 20, 2004). In affirming, the court of appeals relied on Kneibel v. RRM Enterprises, 506 N.W.2d 664 (Minn.App.1993). Kneibel involved a case in which the plaintiff had eaten barbecued spareribs served by a restaurant. 506 N.W.2d at 665. At some point, while chewing on meat from the ribs, the plaintiff heard and felt a “crack” in his mouth and reflexively swallowed the food. Id. It was eventually determined that the plaintiff had cracked an otherwise healthy tooth all the way to the jaw. Id. The plaintiff was unable to determine what object, if any, caused the cracking sensation that resulted in the broken tooth. Id. The plaintiff sued the restaurant and others. Id. at 666. The defendants moved for summary judgment, which was granted, and the court of appeals affirmed on the basis that the plaintiffs failure to present evidence identifying the object that caused the alleged harm precluded him from establishing negligence. Id. at 666-67.

On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact; and (2) whether the lower courts erred in their application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990); see also Minn. R. Civ. P. 56.03. In a negligence action, the defendant is entitled to summary judgment when the record reflects a complete lack of proof on any of the four essential elements of the claim: (1) the existence of a duty of care; (2) a breach of that duty; (3) an injury; and (4) the breach of the duty being the proximate cause of the injury. Gradjelick v. Hance, 646 N.W.2d 225, 230 (Minn.2002). The elements most relevant in this case are proximate cause and breach.

Schafer argues that circumstantial evidence should be available to a plaintiff in a defective food products case for purposes of establishing liability when no harm-causing object can be identified. Schafer further urges us to adopt section 7 of the Restatement (Third) of Torts: Products Liability (1998), which recognizes reasonable consumer expectations in food products liability cases. Respondents, while conceding that circumstantial evidence should be available in defective food products cases for purposes of establishing liability in cases when the harm-causing object cannot be identified, argue that the circumstantial evidence available in this case is insufficient to support Schafer’s claim that the muffin in question was defective.

I.

To determine the viability of Schafer’s claim, we must first establish the proper standard for assessing whether a food product is defective. .We note that courts across the country have diverged on the proper test to apply in determining whether food containing an injurious object is actionable. Some courts follow what has been referred to as the “foreign-natural” test, while others have adopted what has become known as the “reasonable expectation” test. See Jane Massey Draper, Annotation, Liability for Injury or Death Allegedly Caused by Food Product Containing Object Related. to, but not Intended to be Present in, Product, 2 A.L.R. 5th 189, 202 (1992).

In affirming the district court’s grant of summary judgment, the court of appeals considered both the foreign-natural and the reasonable expectation tests and, relying on its decision in Kneibel, held that because Schafer could not identify any object in the muffin that caused her harm she could not, as a matter of law, establish that the muffin was a defective food product. Schafer, 2004 WL 78022 at *2. In essence, the court of appeals rejected both the foreign-natural and the reasonable expectation tests and simply ruled that circumstantial evidence was not available to establish what the harm-causing object was.

The foreign-natural test draws a distinction between the “foreign” and “natural” characteristics of a food product ingredient. Under the test, if an object or substance in a food product is natural to any of the ingredients of the product, there is no liability for injuries caused; if the object or substance is foreign to any of the ingredients, the seller or manufacturer of the product may be liable for any injury caused. Jackson v. Nestle-Beich, Inc., 147 Ill.2d 408, 168 Ill.Dec. 147, 589 N.E.2d 547, 548 (1992); see also Mix v. Ingersoll Candy Co., 6 Cal.2d 674, 59 P.2d 144, 148 (1936) (holding the defendants not liable for a restaurant patron’s damages from injuries resulting from alleged negligence and alleged breach of implied warranty because a bone in the chicken pie was a natural substance); Webster v. Blue Ship Tea Room, Inc., 347 Mass. 421, 198 N.E.2d 309, 312 (1964) (holding the defendant restaurant not liable for alleged breach of implied warranty of merchantability because a fish bone was a natural ingredient in a bowl of New England fish chowder served).

The bright-line rule set out in the foreign-natural test, which assumes that all substances that are natural to the food in one stage or another of preparation are in fact anticipated by the ordinary consumer in the final product served, has been called into question. For example, in Betehia v. Cape Cod Corp., 10 Wis.2d 323, 103 N.W.2d 64 (1960), a restaurant patron was injured by a chicken bone in a chicken sandwich and sued the restaurant for breach of implied warranty of fitness and for negligence. Id. at 65. The court concluded that it did not logically follow that consumers should expect that every product containing some chicken must as a matter of law occasionally or frequently contain chicken bones or chicken-bone slivers simply because chicken bones were natural to chicken meat. Id. at 67. Thus, the court concluded that categorizing a substance as foreign or natural might have some importance in determining the degree of negligence of the processor of food, but it was not determinative of what was unfit or harmful for human consumption. Id. The court further concluded that the naturalness of a substance to a food served was important only in determining whether the consumer might reasonably expect to find such substance in the particular type of food served. Id.; see also Ex Parte Morrison’s Cafeteria of Montgomery, Inc., 431 So.2d 975, 978 (Ala.1983) (“The undesirability of the foreign substance test lies in the artificial application at the initial stage of processing the food without consideration of the expectation of the consumer in the final product served.”); Jackson, 168 Ill.Dec. 147, 589 N.E.2d at 548-49 (stating that the foreign-natural test was “unsound and should be abandoned”); Phillips v. Town of West Springfield, 405 Mass. 411, 540 N.E.2d 1331, 1332-33 (1989) (stating that the foreign-natural test’s focus on the product in its natural form failed to recognize that sellers might fairly be held responsible in some instances for natural substances in food that caused injury).

Comparatively, the reasonable expectation test focuses on what is reasonably expected by the consumer in the food product as served, not what might be foreign or natural to the ingredients of that product before preparation. See Betehia, 103 N.W.2d at 69. As applied to common-law negligence, the reasonable expectation test is related to the foreseeability of harm on the part of the defendant; that is, the defendant has the duty of ordinary care to eliminate or remove in the preparation of the food served such harmful substance as the consumer of the food, as served, would not ordinarily anticipate and guard against. Id. The majority of jurisdictions that have dealt with the defective food products issue have adopted some formulation of the reasonable expectation test. See Restatement (Third) of Torts: Products Liability § 7 rep. n. 1 to cmt. b (1998).

Recognizing the majority view, the Restatement’s approach to food products liability cases considers reasonable consumer expectations. The Restatement provides:

One engaged in the business of selling or otherwise distributing food products who sells or distributes a food product that is defective * * * is subject to liability for harm to persons or property caused by the defect. * ⅜ * [A] harm-causing ingredient of the food product constitutes a defect if a reasonable consumer would not expect the food product to contain that ingredient.

Id. § 7. Under the Restatement approach, consumer expectations are based on culturally defined, widely shared standards allowing a seller’s liability to be resolved by judges and triers of fact based on their assessment of what consumers have a right to expect from preparation of the food in question. Id. cmt. b. The Reporters to the Restatement note that the majority view is unanimously favored by law review commentators. Id. rep. n. 1 to cmt. b.

Having considered the two tests and the approach taken by the Restatement, we conclude that the reasonable expectation test is the more appropriate test to follow. Instead of drawing arbitrary distinctions between foreign and natural substances that caused harm, relying on consumers’ reasonable expectations is likely to yield a more equitable result. After all, an unexpected natural object or substance contained in a food product, such as a chicken bone in chicken soup, can cause as much harm as a foreign object or substance, such as a piece of glass in the same soup. Therefore, we agree with the majority view and expressly adopt the reasonable expectation test as the standard for determining defective food products liability claims in Minnesota. Accordingly, when a-person suffers injury from consuming a food product, the manufacturer, seller, or distributor of the food product is liable to the extent that the injury-causing object or substance in the food product would not be reasonably expected by an ordinary consumer. Whether the injury-causing object or substance in the food product is reasonably expected by an ordinary consumer presents a jury question in most cases. See Betehia, 103 N.W.2d at 69.

II.

Having identified the test to be applied for determining liability in defective food products cases, we now turn to the primary question presented by this case: whether circumstantial evidence may be used to establish a prima facie defective food products claim' in cásés in which the specific harm-causing object or substance cannot be identified. At oral argument; Schafer argued and Perkins and Foxtail conceded that circumstantial evidence should be available for such purposes. Perkins and Foxtail argued, however, that the circumstantial evidence available in this case was insufficient to permit Schafer’s claim to go forward.

As noted, the court’ of appeals relied on Kneibel in affirming the dismissal of Schafer’s lawsuit. In Kneibel, the court of appeals held that the claim of a plaintiff in a defective food products case could not withstand summary judgment because he failed to present sufficient evidence identifying the harm-causing object. 506 N.W.2d at 667. It.has been observed that this bright-line rule- “[rjequiring the plaintiff to prove a ‘clear defect’ seemed unduly harsh under the circumstances” in Kneibel. Mike Steenson, A Comparative Analysis of Minnesota Products Liability Law and the Restatement (Third) of Torts: Products Liability, 24 Wm. Mitchell L. Rev. 1, 50 (1998). As Professor Steenson noted, the issue in cases such as Kneibel is “not whether the plaintiff is able to prove that a harmful agent is ‘clearly defective,’ but rather whether the facts justify an inference that the product is defective.” Id. at 52. In our view, the Kneibel rule is unduly restrictive.

We agree'with the parties that when the specific harm-causing object is not known circumstantial evidence should bé available, if such evidence is sufficient and other causes are adequately eliminated, for purposes of submitting the issue of liability to the jury in defective food products cases. Permitting the use of circumstantial evidence in such cases is consistent with our jurisprudence on the use of circumstantial evidence to infer negligence in other contexts. For example, in a case involving an exploding soft drink bottle, we observed that circumstantial evidence was sufficient to take the case to the jury even though the plaintiff was not able to establish a specific defect in the bottle, Holkestad v. Coca-Cola Bottling Co., 288 Minn. 249, 257, 180 N.W.2d 860, 865-66 (1970); see also Lee v. Crookston Coca-Cola Bottling Co., 290 Minn. 321, 330-31, 188 N.W.2d 426, 433 (1971) (holding that circumstantial evidence supported the inference of defect when the soft drink bottle exploded in the plaintiffs hand absent the plaintiffs own want of care or misuses of the bottle). In Holkestad, we stated that

. where the claimed defect is such that there is circumstantial evidence from which it can be inferred that it is more probable than not that the product was defective when it left defendant’s hands, absent plaintiffs own want of care or misuse of the product, there is an evi-dentiary basis for submitting the issue of liability to the jury ⅜ * *.

288 Minn, at 257, 180 N.W.2d at 865-66. It is also consistent with the approach taken by the Restatement. See Restatement (Third) of Torts: Products Liability § 3 (1998).

The use of circumstantial evidence, however, is not without limits, nor should it be. In order to address defendants’ legitimate concerns about a lack of boundaries for such claims, we hold that in defective food products cases a plaintiff may reach the jury, without direct proof of the specific injury-causing object or substance, when the plaintiff establishes by reasonable inference from circumstantial evidence that: (1) the injury-causing event was of a kind that would ordinarily only occur as a result of a defective condition in the food product; (2) the defendant was responsible for a condition that was the cause of the injury; and (3) the injury-causing event was not caused by anything other than a food product defect existing at the time of the food product’s sale. In order to forestall summary judgment, each of the three elements must be met.

III.

Finally, we must apply the test set out above to the facts presented in this case to determine whether Schafer’s claim can withstand summary judgment. The record presented here establishes that Schafer purchased a pumpkin muffin at a Perkins restaurant, began eating the muffin while at the restaurant, and experienced a sharp pain and choking sensation immediately after swallowing her first bite of the muffin. According to Schafer, the pain must have been caused by a hard, sharp object. Such an occurrence is not the kind of event that an ordinary consumer would anticipate and guard against. Although the harm-causing object was never identified, Schafer immediately reported her experience to a Perkins employee and went directly to a hospital emergency room. Moreover, the events leading to Schafer’s injury occurred in the presence of witnesses, Schafer’s friend and their daughters. At the hospital, the doctor who examined Schafer found a cut on her throat. There is no allegation that Schafer had any throat-related ailment immediately preceding her swallowing the first bite of the muffin.

Viewing the circumstantial evidence in the record before us in the light most favorable to Schafer, we conclude that a jury could reasonably infer that Schafer’s alleged injury is of a kind that would ordinarily only occur as a result of a defective condition in the pumpkin muffin served by Perkins, that Perkins was responsible for making the pumpkin muffin that caused Schafer’s throat injury, and that Schafer’s injury was not caused by anything other than a defect in the pumpkin muffin existing at the time of the muffin’s sale. Although there may be other evidence available bearing on the severity of Schafer’s injury or on Perkins’ possible negligence or on Foxtail’s potential responsibility, those facts are not in the record. Indeed, the lawyer for one of the respondents conceded at oral argument that summary judgment may have been premature given the record. Thus, we conclude, based on the evidence presented, that there is sufficient evidence for Schafer’s claim to go forward and therefore remand to the district court for further proceedings consistent with this opinion.

Reversed and remanded to the district court.

ANDERSON, G. BARRY, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

      . See, e.g., Ex Parte Morrison's Cafeteria of Montgomery, Inc., 431 So.2d at 978 (stating that "the pivotal issue is what is reasonably expected by the consumer in the food as served”); Jackson, 168 Ill.Dec. 147, 589 N.E.2d at 548 ("The reasonable expectation test provides that * * * liability will lie for injuries caused by the substance where the consumer of the product would not reasonably have expected to find the substance in the product.”); Goodman v. Wenco Foods, Inc., 333 N.C. 1, 423 S.E.2d 444, 451 (1992) (”[W]hen a substance in food causes injury to a consumer of the food, it is not a bar to recovery against the seller that the substance was ‘natural’ to the food, provided the substance is of such a size, quality or quantity, or the food has been so processed, or both, that the substance's presence should not reasonably have been anticipated by the consumer.”); Jim Dandy Fast Foods, Inc. v. Carpenter, 535 S.W.2d 786, 791 (Tex.Civ.App.1976) ("Reasonable persons might also differ as to whether the piece of chicken in which this particular bone was found was dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it with the ordinary knowledge common to the community as to its characteristics.”).

      . Section 3 of the Restatement provides:
      It may be inferred that the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff:
      (a) was of a kind that ordinarily occurs as a result of product defect; and
      (b) was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution.
      Restatement (Third) of Torts: Products Liability § 3 (1998) (emphasis added). In cases involving defective food products, "[s]ection 3 may allow a plaintiff to reach the trier of fact when, unable to identify the specific defect, the plaintiff becomes violently ill immediately after consuming the defendant's food product and other causes are sufficiently eliminated.” Id. § 7 cmt. a.

      . We note that at oral argument Perkins and Foxtail strenuously argued that there was no evidence establishing that Schafer's throat had sustained a cut. While that may be a fact question to be decided at trial, our summary judgment standard of review requires that we view the evidence before us in the light most favorable to the nonmoving party, Schafer. Here, Schafer testified in her deposition that the doctor who examined her found that her throat had sustained a cut. No other evidence relating to the extent of Schafer's injury is before us.

      . During oral argument, counsel for Schafer specifically asked this court to apply strict liability to this case. Perkins and Foxtail argue that Schafer did not plead a strict liability claim. We decline to address Schafer's strict liability arguments. Whether the complaint sets out a strict liability claim is a question more properly resolved by the district court on remand.