author: MEIERHENRY, Justice.

text:
    2006 SD 80
    Danny D. WISE, Claimant, Appellee, Cross-Appellant and Appellant, v. BROOKS CONSTRUCTION SERVICES and Acuity, A Mutual Insurance Company, Employer, Insurer, Appellants, Cross-Appellees and Appellees.
    Nos. 23938, 23943.
    Supreme Court of South Dakota.
    Argued May 23, 2006.
    Decided Aug. 23, 2006.

      Bram Weidenaar of Hoy Trial Lawyers, Sioux Falls, South Dakota, Attorney for claimant, appellee, cross-appellant and appellant.
    J.G. Shultz, Jennifer L. Wollman of Woods, Fuller, Shultz & Smith, Sioux Falls, South Dakota, Attorneys for employer, insurer, appellants, cross-appellees and appellees.
   MEIERHENRY, Justice.

[¶ 1.] Danny Wise appeals a circuit court decision affirming the South Dakota Department of Labor’s (Department) determination denying permanent and total disability benefits pursuant to the odd-lot doctrine. Brooks Construction Services and Acuity Insurance Company (collectively referred to as Employer) appeal the circuit court’s decision affirming the Department’s determination that Wise proved that his December 5, 2001, injury was a major contributing cause of his need for treatment and surgery to his lumbar spine and that any recovered medical expenses could be paid through Wise’s counsel. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

[¶ 2.] Shortly after graduating from high school in 1974, Wise began working for Employer as a concrete laborer and foreman and remained with the company for the next twenty-seven years. Over the course of his employment, Wise suffered several work-related injuries, including three separate injuries to his back, a knee injury and a neck injury. Wise sought treatment for these injuries from Dr. David Hoversten, an orthopedic surgeon. Dr. Hoversten performed surgery on Wise’s back in 1990,1995, and 1998, including a fusion at the L5-S1 level.

[¶ 3.] This appeal involves two separate injuries Wise suffered in 2001. The first injury occurred on July 5, 2001, when Wise was struck in the head by a fifty-five gallon drum of cement cure. The blow knocked him unconscious, but he was able to finish out the work day. A co-worker drove him home and his wife took him to the emergency room that evening. Wise continued to have pain in his neck and sought treatment from Dr. Fahrendorf, a chiropractor, from July 11, 2001 to December 10, 2001. Wise then sought treatment from Dr. Hoversten who in turn referred Wise to Dr. Wilson Asfora, a neurologist. On May 9, 2002, Dr. Asfora performed an inferior cervical diskectomy with cord decompression followed by a fusion at the C5-6. Dr. Asfora released Wise from active treatment on January 14, 2003. Upon his release, Wise was assigned a fifteen percent permanent partial disability rating by Dr. John Dowdle. Employer paid permanent partial disability benefits for this injury.

[¶ 4.] Subsequent to the July injury, Wise returned to work for Employer and was injured the second time on December 5, 2001, when he slipped on a muddy ramp at the job site, hyper-extending his back. Due to the injury, Wise left the job site without notifying his superiors. The next day, Wise was terminated from his employment for leaving the work site without notifying his superiors. Also that day, Wise completed the South Dakota Employers First Report of Injury.

[¶ 5.] Wise sought treatment from Dr. Hoversten who, after examining him, determined that Wise had sustained an acute back strain with sciatica probably without disk rupture. Although Wise was unemployed, Dr. Hoversten advised him not to engage in any work-related activities for one week. Wise returned to Dr. Hover-sten on December 20, 2001, still in pain. Dr. Hoversten noted that there was an appearance of significant disk strain and ordered an MRI. Dr. Hoversten again advised him not to engage in any work-related activities for an additional two weeks. Wise’s condition did not improve. Dr. Hoversten saw Wise again on January 3, 2002. Based on the MRI results, Dr. Hoversten noted a right-sided disk bulge with mild pressure on the nerve root to the right at the L3^4 level. He recommended a decompressive laminectomy at the L3-4 level.

[¶ 6.] Initially, Dr. Hoversten thought that the need for treatment and surgery at the L3-4 level was not caused by Wise’s work-related injury. His opinion was that the slip in the mud and back hyper-extension was not a major contributing cause of the need for surgery. Dr. Hoversten believed the major cause was chronic degeneration with stenosis at the L3-4 level. Based on Dr. Hoversten’s opinion, Employer denied Wise’s claim for workers’ compensation benefits on January 24, 2002.

[¶ 7.] Subsequently, Dr. Hoversten changed his opinion as to what caused the need for Wise’s surgery. While performing a decompressive laminectomy at the L3-4 level on September 22, 2002, Dr. Hoversten discovered a fracture of the inferior facet on the left at the L3-4 level. After making this discovery, Dr. Hover-sten no longer believed that the problems Wise was experiencing were degenerative in nature. He, instead, acknowledged that the slip and hyper-extension on December 5, 2001, was the mechanism of injury leading to the need for the surgery. He noted that “this stenosis was not the typical old-age stenosis but is an injury stenosis due to the facet fracture, and for that reason work comp should be responsible for that coverage.”

[¶ 8.] Although Wise was released from care and allowed to return to work in November 2002, he continued to experience neck pain. He again saw Dr. Asfora who prescribed physical therapy which Wise completed in February 2003. In March 2003, Dr. Hoversten concluded that Wise had reached maximum medical improvement. Wise has not sought or received any medical treatment for his neck or back since March 2003.

[¶ 9.] After his termination from Employer and since his recovery, Wise attempted to obtain suitable employment. Wise was employed by Jans Corporation as a construction worker for three days in August 2002. Wise left this employment as the work was outside his physical restrictions. Wise was then employed by Jay McDonald Construction for six weeks as a cut man f. or a siding crew. After the siding jobs were completed, the crew went on to framing jobs. Wise was forced to quit as the work again fell outside of his physical restrictions.

[¶ 10.] In April 2003, Wise undertook a more extensive employment search by looking at the classifieds in the paper, contacting people he knew in the industry and contacting the Career Service Center. Wise also contacted the South Dakota Division of Vocational Rehabilitation. He was referred to the Volunteers of America program for a functional capacities evaluation (FCE). The FCE showed that Wise was capable of performing light to medium level work. He could work an eight hour day. He could sit for four hours at forty-five minute durations, stand for six hours at sixty minute durations, and walk six hours frequently. The FCE indicated that occasionally Wise could lift 30.2 pounds above his shoulders, 30.2 pounds off the floor, carry 32 pounds and push/pull 56.3 pounds.

[¶ 11.] Wise next obtained employment with Austad’s Golf in April 2004. While the job was described as temporary, Wise had been employed for nineteen weeks at the time of the hearing. Wise worked as an order packer twenty-two to twenty-five hours a week and was paid $7.00 an hour. This wage was less than his workers’ compensation rate of $468 per week.

[¶ 12.] Wise filed for workers’ compensation benefits and a hearing was held on August 12, 2004. The only medical evidence provided was Wise’s medical records and the deposition testimony of Dr. Hover-sten. Both sides presented expert testimony relating to Wise’s ability to find comparable work in the Sioux Falls area and his ability to benefit from vocational retraining. Wise’s expert, Thomas Audet, testified that Wise was physically able to perform light duty work, the occupations identified as being suitable for Wise would pay less than his temporary total disability rate and that Wise’s academic aptitude and orientation would preclude him from competing in any sort of vocational rehabilitation program. Overall, Audet was of the opinion that Wise was permanently and totally disabled pursuant to the odd-lot doctrine.

[¶ 13.] Employer’s expert, Thomas Karrow, disagreed. Karrow identified several potential employers in Sioux Falls that may have positions that were the same or similar to Wise’s job with Employer. He further testified that Wise would benefit from vocational rehabilitation programs and specifically identified programs at Southeastern Technical Institute (STI) that he believed were appropriate for Wise.

[¶ 14.] After having heard and considered the testimony of the witnesses and the exhibits and evidence presented by the parties, the Department deemed the lower back injury sustained by Wise on December 5, 2001, to be compensable and ordered that Employer pay Wise’s medical expenses directly to counsel for Wise. Further, the Department found that Wise had not shown that he was unemployable and denied Wise’s permanent and total disability benefits pursuant to the odd-lot doctrine.

[¶ 15.] Employer appealed the Department’s decision that Wise’s injury on December 5, 2001, was a major contributing cause for his need of treatment and surgery. Employer further appealed the Department’s decision that Wise’s medical expenses be paid through his counsel’s office. Wise filed a cross-appeal, claiming the Department erred in denying permanent and total disability benefits pursuant to the odd-lot doctrine. The circuit court affirmed the Department’s decision in all respects. Wise filed this appeal raising one issue:

Whether the circuit court erred as a matter of law in affirming the Department’s denial of permanent and total disability benefits pursuant to the odd-lot doctrine.

Employer filed a notice of review raising two issues:

1. Whether Wise proved that his December 5, 2001, injury was a major contributing cause of his need for treatment and surgery to his lumbar spine.
2. Whether Wise is entitled to have any recovered medical expenses paid through his counsel’s office.

Because Wise’s injury must be determined to be a major contributing cause before odd-lot benefits can be determined, we address issue two first.

STANDARD OF REVIEW

[¶ 16.] “This Court’s standard of review for an administrative agency decision is well settled and governed by SDCL 1-26-37, which provides in relevant part that on review we ‘shall give the same deference to the findings of fact, conclusions of law, and final judgment of the circuit court as it does to other appeals from the circuit court.’” Holscher v. Valley Queen Cheese Factory, 2006 SD 35, ¶ 28, 713 N.W.2d 555, 564. “The Department’s factual findings and credibility determinations are reviewed under the clearly erroneous standard.” Kuhle v. Lecy Chiropractic, 2006 SD 16, ¶ 15, 711 N.W.2d 244, 247 (citing Enger v. FMC, 1997 SD 70, ¶ 10, 565 N.W.2d 79, 83) (citation omitted)'. “We will reverse those findings only if we are definitely and firmly convinced a mistake has been made.” Id. (citing Gordon v. St. Mary’s Healthcare Center, 2000 SD 130, ¶ 16, 617 N.W.2d 151, 157.) “However, ‘we review findings based on deposition testimony and documentary evidence under the de novo standard of review.’” Holscher, 2006 SD 35, ¶ 29, 713 N.W.2d at 564 (citing Mudlin v. Hills Materials Co., 2005 SD 64, ¶ 5, 698 N.W.2d 67, 71 (citation omitted)). “Questions of law are reviewed de novo. Mixed questions of law and fact are also fully reviewable.” Kuhle, 2006 SD 16, ¶ 15, 711 N.W.2d at 247 (citing Enger, 1997 SD 70, ¶ 10, 565 N.W.2d at 83) (additional citations omitted). “Ultimately, the claimant retains the burden of proving all facts essential to compensation.” Id. (citing Clausen v. Northern Plains Recycling, 2003 SD 63, ¶ 7, 663 N.W.2d 685, 687 (citation omitted)).

DECISION

Whether Wise’s December 5, 2001, Injury was a Major Contributing Cause of His Need for Treatment and Surgery.

[¶ 17.] Wise “had the burden to prove by a preponderance of the evidence ‘all the facts essential to compensation.’” Horn v. Dakota Pork, 2006 SD 5, ¶ 14, 709 N.W.2d 38, 41-42 (citing Granel v. South Dakota School of Mines and Technology, 2000 SD 145, ¶ 11, 619 N.W.2d 260, 263) (quoting Westergren v. Baptist Hosp., 1996 SD 69, ¶ 10, 549 N.W.2d 390, 393). “Our law requires a claimant to establish that his injury arose out of his employment by showing a causal connection between his employment and the injury sustained.” Id. “The claimant also must prove by a preponderance of medical evidence, that the employment or employment related injury was a major contributing cause of the impairment or disability.” Id. (citing Arends v. Dacotah Cement, 2002 SD 57, ¶ 15, 645 N.W.2d 583, 588).

[¶ 18.] Here, the only medical evidence was provided by Wise. Wise introduced his medical records and the deposition of Dr. Hoversten to prove that his slip in the mud and resulting back hyper-extension was a major contributing cause of his need for treatment and surgery. Therefore, we review this evidence under the de novo standard of review. Holscher, 2006 SD 35, ¶ 28, 713 N.W.2d at 564 (citations omitted).

[¶ 19.] Wise had a thirteen-year treatment history with Dr. Hoversten, who saw him for all of his prior back and neck injuries. Initially, Dr. Hoversten thought that the December 5, 2001, slip in the mud was not a major contributing cause of Wise’s need for treatment. He said that the “major cause [was] chronic degeneration with stenosis at L3-4. Injury was an acute aggravation.” It was only after Dr. Hoversten performed a decompressive laminectomy at the L3-4 level that he discovered a fracture of the inferior facet on the left at the L3-4 level. After this discovery, Dr. Hoversten changed his opinion. It was his revised opinion that “this stenosis [was] not the typical old-age sten-osis but [was] an injury stenosis due to facet fracture, and for that reason work comp should be responsible for that coverage.”

[¶ 20.] During Dr. Hoversten’s deposition he explained his change of opinion.

Q: Okay. Let me skip the second one there. What I want to understand from this, I guess, is that at the time that you wrote this note in January of 2002, your conclusion was that the gentleman suffered solely from chronic degeneration with an aggravation of some sort. True?
A: Yes.
Q: You changed your mind, did you?
A: Yes.
Q: Tell me why.
A: During surgery we found a fracture of the inferior facet on the right at L3-4. This had been there for some time. I don’t know how long. I went back and looked on my X-rays, and it has been there at least two to three years. When it’s a fracture with instability from the fracture, it makes it an injury-based problem. True, there’s degeneration associated with it, but based upon finding of fracture of the facet, I changed my mind that it wasn’t strictly degenerative.

Dr. Hoversten then explained, based on these X-rays, he could not be certain when the fracture occurred, or how it occurred but, Wise had suffered this fracture sometime between 1991 and 1997. Dr. Hover-sten further explained that the fracture was from an extension injury, or “extending the back way back over backwards.” He explained that prior to the December 5, 2001, injury he last saw Wise on August 10, 1999. At that time, Wise was not complaining of any radicular symptoms in his lower extremities. Dr. Hoversten explained:

Q: We’re getting at, I think the crux of the deposition here is the relationship between that previous facet fracture and the mechanism of injury which occurred on 12 — 13[sic]— 2001. It appears that after the mechanism of injury there’s onset of new symptoms, because he obviously wasn’t a surgical candidate prior to that mechanism of injury, was he? (emphasis added)
A: No, he wasn’t, (emphasis added)
Q: So can you explain for us the relationship between the prior facet fracture and whatever he may have done when he slipped in the mud?
A: Well, with the facet fracture, there’s some increased instability. There’s some buildup of spur and extra swelling around the area of the fracture, and an extension would cause the pushing into the nerve root of this extra material. So, originally I viewed it as an aggravation of the problem.
Q: And that would be related to the work injury, that aggravation was a mechanism that — -the work related injury was a mechanism of the aggravation, was it not?
A: Yes. That was — you know, he was doing pretty good for a couple of years, and then this happens. Then it makes it worse. Originally I thought it was just a stenosis thing, and it was only after I did surgery and found the fracture of the facet with the extra swelling, I said, “Hey, something else is behind this.”

He further stated:

Q: We’ve got two time lines here going, don’t we, Doctor? We have the facet fracture time line, as to when that actually occurred, until you discovered it in the surgery in 2002. Then when he became symptomatic after the fall in the mud. Right?
A: Well, dearly that fall in the mud ivas an aggravation that led to more radiculopathy and the need to do more surgery, whereas before there was no need to do the surgery. (emphasis added)

[¶ 21.] Employer did not present medical evidence to refute Dr. Hoversten’s opinions. Nevertheless, Wise bore the burden of proving a causal connection between his condition and his work-related injury. SDCL 62-1-1 provides that a compensable injury be “established by medical evidence,” and that “[n]o injury is compensable unless the employment or employment related activities are a major contributing cause of the condition complained of.” In applying the statute, we have held “a worker’s compensation award cannot be based on possibilities or probabilities, but must be based on sufficient evidence that the claimant incurred a disability arising out of and in the course of his employment.” Day v. John Morrell & Co., 490 N.W.2d 720, 724 (S.D.1992) (citation omitted). We have further said “South Dakota law requires [Wise] to establish by medical evidence that the ‘employment or employment conditions are a major contributing cause of the condition complained of.’ ‘A possibility is insufficient and a probability is necessary.’” Brady Memorial Home v. Hantke, 1999 SD 77, ¶ 11, 597 N.W.2d 677, 680 (internal citation and emphasis omitted) (citing Ma-roney v. Aman, 1997 SD 73, ¶ 9, 565 N.W.2d 70, 73 (citation omitted)).

[¶ 22.] Employer argues that Wise failed to meet his burden of proof because Dr. Hoversten’s opinion did not use the exact words of the statutes. Employer claims that Dr. Hoversten needed to specifically say that work was “a major contributing cause” under SDCL § 62-1-l(7)(b). Employer contends that without these “magic words,” Wise cannot prevail. The Department did not require the “magic words.” It determined that even though Dr. Hoversten did not “specifically state that [Wise’s] employment related injury is and remains a major contributing cause of his disability, impairment or need for treatment, such opinion can be gleaned from the totality of Dr. Hoversten’s testimony.” Employer relies on Byrum v. Dakota Wellness Found., in support of its argument. 2002 SD 141, 654 N.W.2d 215. Byrum, however, does not stand for the proposition that an expert’s opinion fails because it omits the exact words, “major contributing cause.”

[¶ 23.] The case in which this Court did reverse because the phase “major contributing cause” was not used can be distinguished from the present case. In Brady, this Court was reviewing the deposition testimony of three doctors, two of which did not specifically use the phrase and one that did. The one doctor that used the phrase testified that it was not a major contributing cause. 1999 SD 77, ¶ 13-15, 597 N.W.2d at 681. This Court concluded “[w]e recognized that Hantke’s ‘proof need not arise to a degree of absolute certainty; however, an award may not be based upon mere possibility or speculative evidence.’ ” Id. ¶ 16. “The evidence here established, at best, a possibility. Only Dr. Dowdle provided an unequivocal opinion of whether Hantke’s employment was a major contributing cause of her condition; he stated that it was not.” Id. ¶ 17 (emphasis omitted).

[¶ 24.] In the present case, the Department determined Wise had met his burden of proof based upon all of the evidence. The ALJ reasoned as follows:

Employer’s argument that Dr. Hover-sten’s opinions lack foundation and are speculative is rejected. To the contrary, Dr. Hoversten’s opinions are well-founded and rise to the level necessary to establish a causal relationship between Claimant’s December 5th work injury and his need for treatment and surgery. First, Dr. Hoversten was Claimant’s treating physician for over thirteen years. Dr. Hoversten was very familiar with Claimant’s medical and work history. Further, Dr. Hoversten had opportunity to observe Claimant’s back condition as he performed all of the back surgeries, including the operation in September 2002.
Although Dr. Hoversten did not specifically state that Claimant’s employment related injury is and remains a major contributing cause of his disability, impairment or need for treatment, such opinion can be gleaned from the totality of Dr. Hoversten’s testimony.... For example, Dr. Hoversten opined that “this stenosis is not the typical old-age stenosis but is an injury sten-osis due to facet fracture[.]” Dr. Hover-sten then stated that a fracture with instability from the fracture makes it an injury-based problem. Finally, Dr. Hoversten stated, “with the facet fracture, there’s some increased instability. There’s some buildup of spur and extra swelling around the area of fracture, and an extension would cause the pushing into the nerve root of this extra material. ” (emphasis in original).
Based upon Dr. Hoversten’s testimony, claimant has not only met his burden, but exceeded his burden of proof. Claimant established by a preponderance of the evidence that his work related injury is and remains a major contributing cause of his disability, impairment or need for treatment.

A review of the record supports the Department’s decision. Dr. Hoversten, Wise’s doctor for the past thirteen years, originally believed that the slip was not a major contributing cause. However, after doing surgery, he changed his opinion. He testified that Wise was not a surgical candidate prior to the slip in the mud and that “he (Wise) was doing pretty good for a couple of years, and then this happens. Then it makes it worse.” Furthermore, and importantly, Dr. Hoversten testified that “clearly that fall in the mud was an aggravation that led ... to the need to do more surgery, whereas before there was no need to do the- surgery.” (emphasis added). Finally, it must also be remembered that Dr. Hoversten’s medical records of December 2001, immediately following Wise’s injury, further support causation. Significantly, on December 13, Dr. Hoversten recorded that Wise was there “with acute low back and left leg pain. He stepped in the mud and hyper-extended his back. He had the onset of some pain in the back with radiation into the left leg.” These new symptoms ultimately led to the surgery at issue. Considering the totality of the medical evidence, Dr. Hoversten established that the December 5, 2001 injury caused new symptoms that required the surgery. His testimony was not speculative, rather it was precise and well supported. Horn, 2006 SD 5, ¶ 14, 709 N.W.2d at 42 (citing Byrum, 2002 SD 141, ¶ 16, 654 N.W.2d at 219). We agree with the ALJ that Dr. Hoversten’s opinions are well founded and establish a causal relationship between Wise’s December 5, 2001, work injury and his need for treatment.

[¶ 25.] We also note that other courts in addressing this issue have refused to require pronouncement of the “magic words.” See AT & T Wireless Services Inc. v. Castro, 896 So.2d 828, 833, n. 6 (Fla.Dist.Ct.App.2005) (“the statutory-standard may be established without using magic words”); Hunt v. Exxon Co. USA & GAB, 747 So.2d 966, 973 (Fla.Dist.Ct.App.1999) (holding “The applicable legal standard may be established without pronouncement of the magic words, [‘major contributing cause’], provided the totality of the evidence demonstrates a causal relationship between the claimant’s injury and employment with the appropriate quantum of proof.”); Maid v. Sykes, 763 So.2d 377, 383 (Fla.Dist.Ct.App.2000) (same for “reasonable medical certainty”); Jensen v. City of Pocatello, 135 Idaho 406, 18 P.3d 211 (2000) (holding “No special verbal formula is necessary when, as here, a doctor’s testimony plainly and unequivocally conveys his conviction that events are causally related.”) (citing Paulson v. Idaho Forest Indus., Inc., 99 Idaho 896, 591 P.2d 143 (1979), overruled on other grounds by Jones v. Emmett Manor, 134 Idaho 160, 997 P.2d 621 (2000)); Gooby v. Lake Shore Management Co., 136 Idaho 79, 85, 29 P.3d 390, 396 (2001) (holding “Whether or not the Commission can rely upon a medical opinion, however, does not depend upon the exact language [‘reasonable degree of medical probability’], used by the expert in expressing that opinion.”); Swanson v. Park Place Automotive, 267 Neb. 133, 144, 672 N.W.2d 405, 415 (2003) (holding “We have long held, in the context of evaluating an expert medical opinion, that such testimony need not be couched in ‘magic words’ such as ‘reasonable medical certainty’ or ‘reasonable probability.’”); Owen v. American Hydraulics, Inc., 258 Neb. 881, 889, 606 N.W.2d 470, 477 (2000) (same) (citing Frank v. A & L Insulation, 256 Neb. 898, 594 N.W.2d 586 (1999)); Columbia Forest Products v. Woolner, 177 Or.App. 639, 646, 34 P.3d 1203, 1207-07 (2001) (holding “in other workers’ compensation contests, we have held that evidence need not consist of ‘magic words’ in order to adequately support the Board’s findings.”); SAIF v. Strubel, 161 Or.App. 516, 521-22, 984 P.2d 903 (1999) (holding that an expert’s opinion need not be ignored because it fails to include the magic words “major contributing cause”); Bank of Newport v. Wages, 142 Or.App. 145, 150-51, 919 P.2d 1189 (1996) (same); Freightliner Corp. v. Arnold, 142 Or.App. 98, 105, 919 P.2d 1192 (1996) (same); Moore v. Douglas County, 92 Or.App. 255, 258, 757 P.2d 1371 (1988) (same for “reasonable medical probability”); Harrison v. Texas Emp. Ins. Ass’n., 747 S.W.2d 494, 499 (Tex.App.1988) (“medical doctor, testifying as an expert, need not use the exact ‘magical’ words of ‘reasonable medical probability’, if the expert’s testimony is adequate and sufficient under the total circumstances.”) (citing Stodghill v. Texas Emp. Ins. Ass’n, 582 S.W.2d 102 (Tex 1979)); Repass v. Workers’ Compensation Div., 212 W.Va. 86, 104, 569 S.E.2d 162, 180 (2002) (discouraging reliance on magic words and urging due consideration to actual content of medical reports).

[¶26.] Therefore, Wise supplied sufficient medical evidence that the slip and fall, which caused him to hyper-extend his back, was a major contributing cause of his need for treatment and surgery. Thus, Employer’s liability was established. Steinberg v. South Dakota Department of Military and Veterans Affairs, 2000 SD 36, ¶ 29, 607 N.W.2d 596, 606. The Department’s decision is affirmed.

Denial of Permanent and Total Disability Benefits Pursuant to the Odd-Lot Doctrine.

[¶ 27.] “Whether a claimant is entitled to odd-lot disability benefits is a question of fact subject to review under the clearly erroneous standard.” Kassube v. Dakota Logging, 2005 SD 102, ¶ 34, 705 N.W.2d 461, 467 (citing Enger, 1997 SD 70, ¶ 22, 565 N.W.2d at 85). Therefore, the “Department’s determination that claimant failed to make the required prima facie showing [that he is obviously unemployable] will not be overturned unless we find that the determination was clearly erroneous.” Lends His Horse v. Myrl & Roy’s Paving Inc., 2000 SD 146, ¶ 9, 619 N.W.2d 516, 519 (citing Shepherd v. Moorman Mfg., 467 N.W.2d 916, 919 (S.D.1991)).

[¶ 28.] Whether a person is totally and permanently disabled is governed by SDCL 62-4-53, which provides in part:

An employee is permanently totally disabled if the employee’s physical condition, in combination with the employee’s age, training, and experience and the type of work available in the employee’s community, cause the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income. An employee has the burden of proof to make a prima facie showing of permanent total disability. The burden then shifts to the employer to show that some form of suitable work is regularly and continuously available to the employee in the community. The employer may meet this burden by showing that a position is available which is not sporadic employment resulting in an insubstantial income as defined in subdivision 62-4-52(2). An employee shall introduce evidence of a reasonable, good faith work search effort unless the medical or vocational findings show such efforts would be futile. The effort to seek employment is not reasonable if the employee places undue limitations on the kind of work the employee will accept or purposefully leaves the labor market. An employee ■ shall introduce expert opinion evidence that the employee is unable to benefit from vocational rehabilitation or that the same is not feasible.

Id. There are two ways for Wise to make a prima facie showing necessary to fall under the odd-lot category.

First, if the claimant is obviously unemployable, then the burden of production shifts to the employer to show that some suitable employment within claimant’s limitations is actually available in the community. A claimant may show obvious unemployability by: 1) showing that his physical condition, coupled with his education, training and age make it obvious that he is in the odd-lot total disability category, or 2) persuading the trier of fact that he is in the kind of continuous, severe and debilitating pain which he claims.
Second, if the claimant’s medical impairment is so limited or specialized in nature that he is not obviously unemployable or regulated to the odd-lot category, then the burden remains with the claimant to demonstrate the unavailability of suitable employment by showing that he has made reasonable efforts to find work and was unsuccessful. If the claimant makes a prima facie showing based on the second avenue of recovery, the burden shifts to the employer to show that some form of suitable work is regularly and continuously available to the claimant. Even though the burden of production may shift to the employer, however, the ultimate burden of persuasion remains with the claimant.

Sandner v. Minnehaha County, 2002 SD 123, ¶ 10, 652 N.W.2d 778, 783 (internal quotations omitted, emphasis in original (citing McClaflin v. John Morrell & Co., 2001 SD 86, ¶¶ 8-9, 631 N.W.2d 180, 183)).

[¶ 29.] The Department found that Wise had “established a prima facie case that he was permanently and totally disabled because a good faith work search would be futile.” A review of the record shows that Wise provided testimony concerning the steps he had taken to find a job. He had searched the classifieds, contacted Career Service, been appointed a Vocational Rehabilitation counselor, and learned job skills at Volunteers of America. Eventually, Wise obtained his current employment with Austad’s Golf earning $7.00 an hour, which was less than his worker’s compensation rate. This evidence, “if unchallenged, would lead reasonable persons to believe that he made reasonable, good faith efforts to find suitable employment but was unsuccessful.” Id. ¶ 17. This evidence effectively shifted the burden to Employer to show that some form of suitable employment was available to Wise. Id.; SDCL 62-4-53.

[¶ 30.] Employer provided the testimony of Karrow who identified six different employers that had positions available in Wise’s community that paid wages at or near his workers’ compensation rate. Wise admitted that he did not contact any of these employers because he “was more concerned with [his] back than going out and finding a higher paying job.” Therefore, the Department’s holding that Employer “demonstrated that there were specific positions open and available within Claimant’s community that would pay him a suitable wage” was not clearly erroneous.

[¶ 31.] “Although the burden of production may shift to the employer, the ultimate burden of persuasion remains with [Wise].” Sandner, 2002 SD 123, ¶ 22, 652 N.W.2d at 784 (citation omitted). Under SDCL 62-4-53 Wise was required to “introduce expert opinion evidence that [he] is unable to benefit from vocational rehabilitation or that the same is not feasible.” Id. Wise presented the expert testimony of Audet who testified that Wise lacked the academic orientation and aptitude to compete in any sort of vocational rehabilitation program. He felt that Wise would have difficulty competing in any type of retraining program and that vocational rehabilitation was unrealistic. However, Audet also admitted that although it may be difficult for Wise, retraining was not impossible and that if he completed the course work in a vocational retraining program, his worth in the labor market would go up.

[¶32.] Employer, on the other hand, presented the expert testimony of Karrow. Karrow testified that Wise would benefit from a retraining program and identified five possible retraining programs at STI available for Wise that met his physical limitations and paid wages higher than his workers’ compensation rate. Wise did not inquire into or participate in any of these programs because he did not consider himself “a school kind of person” and because he did not qualify for educational funding assistance. The Department found that Wise “would benefit from vocational retraining and that it would be feasible despite [Wise’s] reluctance to attend such a program.” Finally, the Department concluded Wise “failed in his burden of persuasion to establish that he is permanently totally disabled as he would benefit from vocational retraining.”

[¶ 33.] The evidence presented on this issue came from Wise and two experts, Audet and Karrow. All three of these individuals testified live at the hearing.

Thus, deference must be given to Department which had an opportunity to observe the experts’ demeanors and weigh their credibility. The trier of fact is free to accept all of, part of, or none of, an expert’s opinion. Furthermore, the reviewing agency is not required to accept the testimony of the claimant and is free to choose between conflicting testimony.

Sandner, 2002 SD 123, ¶ 31, 652 N.W.2d at 786 (internal citations omitted). Under the clearly erroneous standard of review and a careful review of the record, “we are not definitely and firmly convinced that a mistake has been made.” Id. ¶ 32. Therefore, the Department’s denial of permanent and total disability benefits under the odd-lot doctrine is affirmed.

Wise’s Medical Expenses Paid Pursuant to the Medical Fee Schedule and Through his Counsel.

[¶ 34.] Employer asserts that the Department erred when it ordered Employer to pay Wise’s medical bills directly to his counsel and without the benefit of the medical fee schedule under ARSD 47:03:05:05. Employer asserts that the medical bills attached to the Stipulation should be paid directly to the individual medical providers using the medical fee schedule.

[¶ 35.] At issue is SDCL 62-1-1.3 and its application to this case. “Statutory interpretation and application are questions of law.” Lewis & Clark Rural Water System, Inc. v. Seeba, 2006 SD 7, ¶ 12, 709 N.W.2d 824, 830 (citing Block v. Drake, 2004 SD 72, ¶ 8, 681 N.W.2d 460, 463 (citation omitted)). This Court interprets statutes “to discover the true intent of the legislature in enacting laws, which is ascertained primarily from the language employed in the statute.” Id. (citing Sanford v. Sanford, 2005 SD 34, ¶ 13, 694 N.W.2d 283, 287). “The intent of a statute is determined from what the Legislature said, rather than what the courts think it should have said.” Id. (citing Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611).

[¶ 36.] SDCL 62-1-1.3 provides:

If an employer denies coverage of a claim on the basis that the injury is not compensable under this title due to the provisions of subsections 62-l-l(7)(a), (b), or (c), such injury is presumed to be nonwork related for other insurance purposes, and any other insurer covering bodily injury or disease of the injured employee shall pay according to the policy provisions. If coverage is denied by an insurer without a full explanation of the basis in the insurance policy in relation to the facts or applicable law for denial, the director of the Division of Insurance may determine such denial to be an unfair practice under chapter 58-33. If it is later determined that the injury is compensable under this title, the employer shall immediately reimburse the parties not liable for all payments made, including interest at the category B rate specified in § 54-3-16.

[¶ 37.] The text of this statute contemplates the situation where an employer has denied coverage of an injury, which is later found to be compensable. That is exactly what happened in this case. Employer denied coverage claiming Wise had not proved that his slip in the mud was a major contributing cause of his need for treatment and surgery. The statute provides “[i]f it is later determined that the injury is compensable under this title, the employer shall immediately reimburse the parties not liable for all payments made, including interest at the category B rate[.]” SDCL 62-1-1.3 (emphasis added). This Court has affirmed the Department’s decision that Wise’s December 5, 2001, injury was a major contributing cause of his need for treatment. Therefore, the injury is compensable and Employer “shall immediately reimburse the parties not liable for all payments made.” Id.

[¶ 38.] This statute makes no reference to the medical fee schedule. The fee schedule Employer wishes to use presupposes that an employer is following the mandates of SDCL 62-4-1, which provides in part: “[t]he employer shall provide necessary first aid, medical, surgical, and hospital services, or other suitable and proper care ... during the disability or treatment of an employee within the provisions of this title.” If Employer had accepted responsibility for Wise’s injury they would have been entitled to the benefits of the fee schedule. Because they denied Wise’s claim, Wise, not Employer, incurred the expense of his treatment and surgery. An employer cannot deny coverage and then, once a claimant has incurred expenses, only pay the expenses it chooses according to the medical fee schedule. An employer loses its access to the medical fee schedule when it denies coverage. Therefore, under SDCL 62-1-1.3, the medical fee schedule is not applicable in this case. Thus, Employer is liable for the full amount of the medical expenses incurred by Wise.

[¶ 39.] Employer further asserts that if they have to pay, they should pay the medical providers individually, not Wise’s counsel. This Court has previously addressed this issue. In Lagge v. Corsica Co-op, this Court held that “[t]he Department’s order is not in contravention with any statute. Furthermore, payment through a claimant’s attorney is commonly done and is contemplated by statute.” 2004 SD 32, ¶ 38, 677 N.W.2d 569, 578. “The Department did not err in requiring [Employer] to pay for [Wise’s] medical care through his counsel.” Id.

[¶ 40.] Affirmed.

[¶ 41.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur.


source: Caselaw Access Project

author: ZINTER, Justice. SABERS, Justice

license: Public Domain

text:
    2006 SD 81
    CREDIT COLLECTION SERVICES, INC., a South Dakota Corporation, Plaintiff and Appellant, v. Bradley J. PESICKA and Martina Ashford, Defendants.
    No. 23946.
    Supreme Court of South Dakota.
    Considered on Briefs on May 23, 2006.
    Decided Aug. 23, 2006.

      David M. Hosmer, Yankton, South Dakota, Attorney for plaintiff and appellant.
   ZINTER, Justice.

[¶ 1.] Credit Collection Services, Inc. (CCS) appeals a judgment denying attorney’s fees in a breach of contract action against Bradley Pesicka and his former wife Martina Ashford. We reverse and remand.

FACTS

[¶ 2.] In 2003, Pesicka and Ashford, who were still married, received medical services from Avera Sacred Heart Hospital in Yankton, South Dakota. In connection with obtaining these services, Pesicka signed a contract entitled “Consent Form.” The one page printed form was on Avera letterhead and contained provisions on the following matters: authorization for care and treatment; consent to blood test for healthcare provider protection; procurement of information; authorization for release of information; personal items ac-knowledgement; Medicare consent; Medicare/Champus acknowledgement of receipt; assignment of insurance benefits; precertification; billing and credit policy; and, patient self determination and advance directives. The section on billing and credit policy provided:

All patient accounts will be considered due upon receipt of your bill. As a courtesy to me, the business office and any physician of the hospital providing services will process my insurance if information is provided. It is understood that all insurance deductibles be paid at the time of dismissal. I will be billed on the current balance of my account regardless of the insurance claim status. Accounts over thirty (30) days old may bear interest at a rate allowed under South Dakota State Law. Accounts over ninety (90) days old may be referred to an attorney or an agency for collection at which time the undersigned shall become responsible for all attorney’s fees and collection expenses, (emphasis added).

[¶ 3.] Pesicka made only two small payments on the debt to Avera and failed to pay the balance. Avera assigned the debt to CCS for collection. CCS attempted to collect the debt but was unsuccessful. CCS then commenced a breach of contract action against Pesicka and Ashford. A default judgment was entered against Ash-ford, and Pesicka failed to appear for trial. Thereafter, a judgment was also entered against Pesicka in the amount of $12,569.51. CCS subsequently filed a motion for attorney’s fees relying on that portion of the consent form in which the parties agreed that Pesicka would be responsible for those fees. Pesicka did not appear or resist the motion. Nevertheless, the trial court denied CCS’s motion reasoning that the consent form’s provision for attorney’s fees violated public policy and was void. CCS appeals.

ISSUE

[¶ 4.] Did the trial court err in denying CCS’s motion for attorney’s fees?

[¶ 5.] An award of attorney’s fees is reviewed under the abuse of discretion standard. In re South Dakota Microsoft Antitrust Litigation, 2005 SD 113, ¶ 27, 707 N.W.2d 85, 97. “ ‘[B]y definition, a decision based on an error of law is an abuse of discretion.’” State v. Vento, 1999 SD 158, ¶ 5, 604 N.W.2d 468, 469. The question in this case is a question of law: does SDCL 15-17-39 prohibit an award of attorney’s fees to CCS based upon the attorney’s fee provision in the consent form signed by Pesicka. See State v. Schroeder, 2004 SD 21, ¶ 5, 674 N.W.2d 827, 829 (construction of a statute is a question of law and is fully reviewable without deference to the trial court’s interpretation); Microsoft, 2005 SD 113 at ¶ 28, 707 N.W.2d at 98 (“standards and procedures applied by trial court in determining attorney fees are legal questions” and “trial court’s conclusions of law are given no deference and are reviewed ... de novo.”).

[¶ 6.]“An award of attorney’s fees is not the norm. The party requesting ... fees has the burden to show, by a preponderance of the evidence, the basis for such an award.” Jacobson v. Gulbransen, 2001 SD 33, ¶ 31, 623 N.W.2d 84, 91. In this jurisdiction the recovery of attorney’s fees is governed by the American rule, which provides:

each party bears the party’s own attorney fees. However, attorney fees are allowed when there is a contractual agreement that the prevailing party is entitled to attorney fees or there is statutory authority authorizing an award of attorney fees.

Crisman v. Determan Chiropractic, Inc., 2004 SD 103, ¶ 26, 687 N.W.2d 507, 513. (citations omitted)(emphasis added). Thus, even if there is no statute authorizing attorney’s fees, they are recoverable if the parties’ contract so provides. Microsoft, 2005 SD 113 at ¶ 29, 707 N.W.2d at 98; City of Aberdeen v. Rich, 2003 SD 27, ¶ 25, 658 N.W.2d 775, 781; Jacobson, 2001 SD 33 at ¶ 31, 623 N.W.2d at 91; Estate of O’Keefe, 1998 SD 92, ¶ 17, 583 N.W.2d 138, 142; Vanderwerff Implement, Inc. v. McCance, 1997 SD 32, ¶ 17, 561 N.W.2d 24, 27; O’Connor v. King, 479 N.W.2d 162, 166 (S.D.1991); Assman v. J.I. Case Credit Corp., 411 N.W.2d 668, 671 (S.D.1987); Lowe v. Steele Const. Co., 368 N.W.2d 610, 614 (S.D.1985); NBC Leasing Co. v. Stilwell, 334 N.W.2d 496, 500 (S.D.1983); Tracy v. T & B Const. Co., 85 S.D. 337, 340, 182 N.W.2d 320, 322 (1970); Dodds v. Bickle, 77 S.D. 54, 62, 85 N.W.2d 284, 289 (1957).

[¶ 7.]CCS argued that Avera’s consent form was a contractual agreement authorizing an award of attorney’s fees. However, the trial court held that the contract was “evidence of debt.” Therefore, it held that the provision authorizing attorney’s fees was void under SDCL 15-17-39, which provides:

Any provision contained in any note, bond, mortgage, or other evidence of debt that provides for payment of attorneys’ fees in case of default of payment or foreclosure is against public policy and void, except as authorized by specific statute, (emphasis added).

On appeal, CCS argues that the consent form is not a “note, bond, mortgage, or other evidence of debt,” and therefore, the provision authorizing attorney’s fees was not prohibited by this statute. We agree with CCS.

[¶ 8.]Before SDCL 15-17-39 was enacted, SDCL 15-17-10 contained the same relevant language:

Any provision contained in any note, bond, mortgage, or other evidence of debt for the payment of any attorney fee in case of default in payment or of proceedings had to collect such note, bond, or evidence of debt or to foreclose such mortgage is hereby declared to be against public policy and void.

SDCL 15-17-10 (1984 Rev.)(emphasis added). SDCL 15-17-39 replaced SDCL 15-17-10 in 1992. See 1992 S.D.Sess.L. ch. 148, §§ 4 & 26.

[¶ 9.]This Court has applied this “other evidence of debt” language under both statutes. In Midcontinent Broadcasting Co. v. AVA Corp., 329 N.W.2d 378 (S.D.1983), the Court reversed an award of attorney’s fees in a lawsuit against guarantors on a promissory note, holding that a guaranty was “other evidence of debt.” The Court observed that the principals could not be liable for attorney’s fees on the promissory note and the “guaranty agreement [was] linked to the note.” Id. at 381. Therefore, the attorney’s fee collection provision of the guaranty was void. In International Multifoods Corp. v. Mardian, 379 N.W.2d 840 (S.D.1985), this Court followed Midcontinent and again denied attorney’s fees in an action against guarantors on a promissory note, holding that the guaranty was “other evidence of debt.” In Vanderwerff, supra, this Court examined a sales contract that required the payment of $2,575 for a farm implement. The contract also permitted the recovery of attorney’s fees upon default. This Court concluded that the sales contract constituted “other evidence of debt” under SDCL 15-17-39, and therefore, the attorney’s fee provision was void.

[¶ 10.]On the other hand, in Assman, supra, a retail purchaser defaulted on the purchase of farm machinery and a financing company incurred attorney’s fees repossessing the collateral. This Court permitted the financing company to recover attorney’s fees from the implement dealer under a provision of a “Retail Financing Agreement” between the financing company and the implement dealer. That agreement allowed the financing company to recover “ 'any net loss which [the financing company might] sustain on any [s]eeurity [i]nstrument accepted ... resulting from repossessing machines or equipment which secure a [s]ecurity [[Instrument [originating from the retail purchaser] including ... legal expenses....’” Id. at 671 (emphasis original). This Court held that the “Retail Financing Agreement” was not “other evidence of debt.” Rather, this Court noted that agreement “was designed ‘to set forth the conditions under which [s]ecurity [[Instruments [with retail purchasers would] be accepted by [the financing company on assignment] from [the implement dealer], and to establish the rights, liabilities and obligations of [the financing company and implement dealer] with respect to such [s]ecurity [[Instruments!.]’ ” Id.

[¶ ll.]In this case, the contract bears little similarity to the contracts this Court examined in Midcontinent and Mardian (promissory note guaranties) and in Van-derwerjf (fixed-price sales contract). Rather, this contract is like the agreement in Assman, which merely governed the terms and conditions of providing services and further governed the rights, liabilities and obligations of the parties with respect to those services.

[¶ 12.]Two Eighth Circuit Court of Appeals decisions construing SDCL 15-17-10 and SDCL 15-17-39 also provide thoughtful analysis on this question. In Overholt Crop Insurance Service Co. v. Travis, 941 F.2d 1361 (8th Cir.1991), the Eighth Circuit, relying upon our decision in Assman, upheld an attorney’s fee award authorized by a provision in an employment agreement. The court noted that the language under review was an employment agreement and the statutory prohibition only applied to “ ‘notes, bonds, mortgages, or other evidence of debt.’” See Overholt, 941 F.2d at 1370 (quoting SDCL 15-17-10 (1990)).

[¶ 13.] Orion Financial Corp. v. American Foods Group, Inc., 281 F.3d 733 (8th Cir.2002) provides more comprehensive analysis. There, a consultant sought to enforce an attorney’s fee provision in a consulting service agreement. The district court, relying on Vanderwerjf, supra, declined to award attorney’s fees, holding that the agreement violated SDCL 15-17-39. The Eighth Circuit reversed. Judge Wollman reasoned:

The service contract in this ease, like the employment contract in Overholt, does not constitute evidence of a debt owed by one party to the other, but instead creates mutual obligations to provide services and payment therefor.
The phrase “evidence of debt” as used in the statute refers to debtor-creditor relationships, such as those in bonds, mortgages, and promissory notes, not to every contract where one party is obligated to pay money to the other. Moreover, the phrase “evidence of debt” when used elsewhere in the South Dakota Codified Laws is connected with banking or other debtor-creditor relationships. See, e.g., S.D. Codified Laws § 7-25A-25 (Michie 1993)(improvement districts’ authority to issue notes); S.D. Codified Laws § 15-2-18 (Michie 2001)(limitations on actions on instruments circulated as money); S.D. Codified Laws § 21-17A-3 (Michie 1987)(re-quirements for writ of attachment for a debt); S.D. Codified Laws § 21-47-3 (Michie 1987)(actions to foreclose real property mortgages); S.D. Codified Laws § 21-48-18 (Michie 1987)(same); S.D. Codified Laws § 44-10-10 (Michie 1997)(restricting sale of evidences of debt pledged to pledgee); S.D. Codified Laws § 47-8-1.1 (Michie 2000)(definition of transacting business); S.D. Codified Laws § 51A-4-1 (Michie 1990)(powers of banks); and S.D. Codified Laws § 58-26-3 (Michie 2000)(determining value of investments by insurance companies).
We conclude that because the Agreement is not “evidence of debt” within the meaning of S.D. Codified Laws § 15-17-39, the attorney fees provision is valid. Accordingly, we reverse the district court’s decision denying attorney fees and remand to the district court for a determination of an award of reasonable attorney fees and collection costs.

Orion, 281 F.3d at 745.

[¶ 14.]Although this Court is not bound by federal court interpretations of SDCL 15-17-10 and SDCL 15-17-39, Orion provides a well reasoned analysis of the meaning and purpose of the “evidence of debt” language in SDCL 15-17-39. Moreover, its rationale is consistent with our cases. Like Assman, Orion recognized that service agreements are unlike guaranties on promissory notes or sales contracts that are evidence of debt. A service agreement “does not constitute evidence of a debt owed by one party to the other, but instead creates mutual obligations to provide services and payment therefor.” Orion, 281 F.3d at 745. Compare id., with Assman, 411 N.W.2d at 671 (concluding that the agreement was only designed to set forth the conditions under which services would be provided and established the rights, liabilities and obligations of the parties with respect to those services).

[¶ 15.]Finally, both this Court’s and the Eighth Circuit’s analysis of the “evidence of debt” language is consistent with interpretations of similar language in other jurisdictions. See Hiller v. Olmstead, 54 F.2d 5, 7 (6th Cir.1931)(concluding that an insurance contract was not converted into “evidence of indebtedness” after a fire because the phrase refers only to instruments of the same general nature as bonds, mortgages, notes, and debentures); United States v. Jones, 450 F.2d 523, 525 (5th Cir.1971)(concluding that the term “evidence of indebtedness” embraced only such documents as promissory notes which on their face establish a primary obligation to pay the holders a sum of money); In re Dvorak, 176 B.R. 929, 934 (Bkrtcy.D.Kan.1994)(coneluding that an indemnity agreement was not evidence of indebtedness because at the time agreement was entered into there was no debt); O’Brien’s Irish Pub, Inc. v. Gerlew Holdings, Inc., 175 Ga.App. 162, 332 S.E.2d 920, 923 (1985)(eoneluding that a contract for the sale of a business between a vendor and broker did not fall within the definition of “evidence of debt,” i.e. “written instruments or securities for the payment of money, importing on their face the existence of a debt.”) (quoting Black’s Law Dictionary, Deluxe 4th Ed., 1968).

[¶ 16.]One further example is T.F. James Co. v. Vakoch, 628 N.W.2d 298 (N.D.2001). In that case, the trial court refused to award attorney’s fees permitted under a lease agreement. The trial court held that the lease was “evidence of debt” and the attorney’s fee provision was void under a North Dakota statute similar to SDCL 15-17-39. The North Dakota Supreme Court reversed stating, “[w]e ... do not believe ‘evidence of debt’ in N.D.C.C. § 28-26-04 is intended ‘to be viewed as a catchall rubric embracing any and all writings, not otherwise specifically listed, which represent an obligation on the part of the writer to do something for the holder.’” T.F. James Co., 628 N.W.2d at 302 (quoting Jones, 450 F.2d at 524). The North Dakota Court reasoned that:

“[EJvidence of debt,” as contemplated by N.D.C.C. § 28-26-04, relates to a written instrument importing on its face the existence of debt, an acknowledgement of that debt, and a promise of payment. The general term, “evidence of debt,” “despite its seeming breadth,” includes only instruments similar to those specifically listed in N.D.C.C. § 28-26-04: a note, bond, mortgage, or security agreement. See Black’s Law Dictionary 535 (7th ed.1999)(diseussing the principle of ejusdem generis, and stating “seeming breadth” is not given effect). Evidence of debt is not a “catchall rubric embracing any and all writings” including those such as the commercial lease agreement in this case. Jones, 450 F.2d at 524.

T.F. James Co., 628 N.W.2d at 303.

[¶ 17.]Applying the principles embodied in all of these cases, we conclude that the trial court erred as a matter of law in its denial of attorney’s fees. Pesic-ka’s consent form is not a note, bond or mortgage nor is it a written instrument importing on its face the existence of a debt. Rather, like the financing agreement in Assman, the employment agreement in Overholt, and the service agreement in Orion, Pesicka’s agreement only describes the conditions under which certain services will be provided and it sets forth the rights, liabilities, and obligations of the parties with respect to those services. Therefore, the consent form is not “evidence of debt” within the meaning of SDCL 15-17-39.

[¶ 18.]Reversed and remanded for consideration of the appropriate factors for awarding attorney’s fees. See Crisman, 2004 SD 103, ¶¶ 27-30, 687 N.W.2d at 513-514.

[¶ 19.] GILBERTSON, Chief Justice, and KONENKAMP and MEIERHENRY, Justices, concur.

[¶ 20.] SABERS, Justice, dissents.

SABERS, Justice

(dissenting).

[¶ 21.] I dissent. There are two independent grounds by which the circuit court’s decision should be affirmed: First, the section on billing and credit in the hospital’s “Consent Form” constitutes “other evidence of debt” and violates the public policy set forth in SDCL 15-17-39; second, the circuit court found that the clause authorizing attorney’s fees was not fairly negotiated by the parties. The majority opinion fails to recognize our State’s public policy and errs by narrowly construing the words “other evidence of debt.” Additionally, the majority opinion errs by failing to address the circuit court’s finding that the hospital’s clause authorizing attorney’s fees was not fairly negotiated.

The circuit court did not abuse its discretion in denying the hospital attorney’s fees pursuant to SDCL 15-17-39.

[¶ 22.] The party requesting an award of attorney’s fees has the burden to show the basis for such an award. Jacobson v. Gulbransen, 2001 SD 33, ¶ 31, 623 N.W.2d 84, 91. We will not reverse a circuit court’s decision concerning attorney’s fees unless we determine the court abused its discretion. In re South Dakota Microsoft Antitrust Litigation, 2005 SD 113, ¶ 27, 707 N.W.2d 85, 97.

[¶23.] “At common law the right to recover attorney’s fees from an opponent in litigation did not exist.” NBC Leasing Co. v. Stilwell, 334 N.W.2d 496, 500 (S.D.1983). Such an expense is not allowable absent “a statute or rule of court or some agreement expressly authorizing taxing of attorney’s fees....” Id. at 500-01.

[¶24.] In this case, the hospital’s collection agency is relying on the “Billing and Credit Policy” clause of its “Consent Form” document as an “agreement” between the hospital and Pesicka for attorney’s fees. SDCL 15-17-39 limits the type of instruments that can contain provisions for attorney’s fees:

Any provision contained in any' note, bond, mortgage, or other evidence of debt that provides for payment of attorneys’ fees in case of default of payment or foreclosure is against public policy and void, except as authorized by specific statute.

[¶ 25.] Our case law concerning this statute has been inconsistent. In Assman v. J.I. Case Credit Corp., 411 N.W.2d 668 (S.D.1987), we permitted a financing company to recover attorney’s fees from an implement dealer. The financing company relied on an attorneys’ fees provision in its “Retail Financing Agreement.” We held the “Retail Financing Agreement” did not constitute “other evidence of debt.” Id. at 671. However, about ten years later, we held that a provision providing for attorney’s fees in an implement dealer’s “Retail Order Form” was “evidence of other debt” and therefore contrary to public policy. Vanderwerff Implement Inc. v. McCance, 1997 SD 32, ¶ 17, 561 N.W.2d 24, 27.

[¶ 26.] The hospital' attempts to hide behind the fact that its document deals with consents, authorizations, and releases in addition to debt. The majority opinion should not be so easily fooled.

[¶ 27.] The “Billing and Credit Policy” section of the document not only constitutes “other evidence of debt” but specifies the conditions relating to debt in six specific ways:

1. All patient accounts will be considered due upon receipt of your bill.
2. As a courtesy to me, the business office and any physician of the hospital providing services will process my insurance if information is provided.
3. It is understood that all insurance deductibles be paid at the time of dismissal.
4. I will be billed on the - current balance of my account regardless of the insurance claim status.
5. Accounts over thirty (30) days old may bear interest at a rate allowed under South Dakota State Law.
6. Accounts over ninety (90) days old may be referred to an attorney or an agency for collection at which time the undersigned shall become responsible for all attorney’s fees and collection expenses.

The only evidence of debt and conditions relating to debt not specified above is the ultimate balance due on account. At the time the document was signed, the medical services had not yet been provided so the final debt amount could not be inserted. We should not accept form over substance in determining what constitutes other evidence of debt.

[¶ 28.] If the public policy of the State prohibits creditors such as banks from collecting attorney’s fees on notes, bonds, mortgages or other evidence of debt, certainly a hospital providing health care or its credit collection service should be equally prohibited. The bargaining position of those in need of medical care is far inferior to those who borrow money to pay debts or make purchases.

[¶29.] In summary, our case law was inconsistent on what types of documents constitute “other evidence of debt.” The circuit court examined the hospital’s document and its provision on “Billing and Credit Policy” and determined it constituted “other evidence of debt.” Under these circumstances, the court did not abuse its discretion in denying the hospital attorney’s fees.

The circuit court should he affirmed because the “Billing and Credit Policy” provision ivas not negotiated between the parties.

[¶ 30.] An agreement concerning attorney’s fees should be fairly negotiated between the parties. Vanderwerff, 1997 SD 32, ¶ 18, 561 N.W.2d at 27. In Vanderwerff, in addition to holding an attorney’s fees provision void because it was “other evidence of debt,” we noted:

In this case, there is no evidence of negotiation between McCance and Van-derwerff on the matter of attorney fees, as the aforementioned clause is in fíne print.

Id. Vandenverff did not reach the issue of whether the attorney’s fees clause was negotiated because it had not been addressed by the circuit court.

[¶ 31.] Unlike Vanderwerff, the circuit court did address whether the hospital’s provision providing for attorney’s fees was negotiated. In its memorandum opinion, the circuit court wrote:

The court would point out that the form is captioned as a “Consent Form” authorizing care and treatment and does not indicate that the fine print contains a contractual agreement to pay attorney’s fees. Even the fine print paragraph which contains this clause is captioned as “Billing and Credit Policy” and gives no indication that it contains a contractual agreement to pay attorney’s fees.
There was no testimony that there was any discussion or negotiation of the attorney’s fee clause and this court concludes that it ivas extremely unlikely that this clause was negotiated between the parties in light of the circumstances under which the form was signed (Ash-ford was seeking medical treatment), the fact that this was a preprinted form, the fine print used, and the captions on the page and paragraph which do not disclose that there was an agreement to pay attorney’s fees contained therein.

[¶ 32.] In short, even if this Court holds the “Consent Form” does not constitute “other evidence of debt,” we should affirm the circuit court because the form’s provision providing for attorney’s fees was not negotiated between the parties. In which case, the decision of the circuit court was right even if the majority opinion now concludes it was based on the wrong reason.

      . While the body of the dissent appears to acknowledge that attorney’s fees are recoverable upon an agreement of the parties, that rule does not appear to be followed in the dissent's footnote emphasizing that attorney’s fees may only be granted in those cases specifically allowed by statute (listing those specific statutes). Furthermore, any suggestion in the footnote that there is some sort of public policy violation to award attorney's fees based upon an agreement by the parties is contraiy to at least half a century of this Court's legal precedent.

      . The current version of SDCL 15-17-39 actually came into being with amendments made in 1993. See 1993 S.D.Sess.L. ch. 165.

      . All of the statutory cross-references in the quotation from Orion, supra remain valid with the exception of the reference to SDCL 47-8-1.1, which was repealed in 2005. See 2005 S.D.Sess.L. ch. 239, § 394.

      . Under directly controlling authority, the dissent’s position regarding a lack of “fair negotiation” over the attorney's fee agreement may not be addressed in this appeal. That question must be left for another day.
      The dissent relies on Vanderwerff, 1997 SD 32 at ¶ 18, 561 N.W.2d at 27. Ironically, Vander-werff considers the "fair negotiation” argument, but specifically instructs that we may not consider the argument because it was not raised before the trial court. More specifically, Vanderwerff recognized in dictum that an agreement concerning attorney’s fees should be "fairly negotiated.” However, the Court concluded that we should not address such issues for the first time on appeal. The Court further concluded that that argument was waived because the trial court made no findings regarding negotiation of attorney's fees. The same is true here. Pesicka did not appear or respond to the motion for attorney’s fees. Pesicka specifically failed to object or propose findings of fact and conclusions of law on the issue of fair negotiation.
      Consequently, the trial court entered no findings of fact or conclusions of law on the issue. The only trial court language that related to that issue was a comment in the memorandum decision that "[tjhere was no testimony that there was any discussion or negotiation of the attorney's fee clause,” and it was "unlikely” that it was fairly negotiated. However, the trial court never ruled on this issue. Ultimately, it resolved the matter of attorney's fees solely on the basis of the "evidence of debt" issue we address.
      Notwithstanding this record, the dissent alleges "fair negotiation” was an alternative ruling that we should adopt. As is pointed out above, it was not an alternative ruling. However, even if it were, the trial court's mere speculation concerning that subject is not reviewable because the memorandum was not incorporated in its findings of fact and conclusions of law. See Poindexter v. Hand County Bd. of Equalization, 1997 SD 71, ¶ 18, 565 N.W.2d 86, 91 (stating that the Supreme Court does not review a memorandum opinion unless it is expressly incorporated into the findings of fact and conclusions of law). Finally, it must be noted that Pesicka filed no brief in this appeal. Therefore, there is no issue of fair negotiation for us to review. For all of these reasons, and under the dissent’s own authority, we may not consider this issue. Vanderwerff, 1997 SD 32, ¶ 18, 561 N.W.2d at 27 (noting that: the issue of fair negotiation was never presented to the trial court; "[a]s we have stated numerous times, 'issues not addressed or ruled upon by the trial court will not be addressed by this Court for the first time on appeal’ and therefore, the issue of fair negotiation was waived)(citing Watertown v. Dakota, Minn. & E.R.R. Co., 1996 SD 82, ¶ 26, 551 N.W.2d 571, 577 (citing Keegan v. First Bank, 519 N.W.2d 607, 615 (S.D.1994); Fullmer v. State Farm Ins. Co., 514 N.W.2d 861, 866 (S.D.1994); Hawkins v. Peterson, 474 N.W.2d 90, 95 (S.D.1991); Bottum v. Herr, 83 S.D. 542, 548, 162 N.W.2d 880, 883 (1968); Schull Constr. Co. v. Koenig, 80 S.D. 224, 229, 121 N.W.2d 559, 561 (1963))). In light of this directly controlling authority, and considering our standard of review, we have no authority to, sua sponte, raise and decide this issue.

      . SDCL 15-17-38 sets forth the public policy of the State of South Dakota as to an award of attorney's fees. It provides in part:
      The compensation of attorneys and counselors at law for services rendered in civil and criminal actions and special proceedings is left to the agreement, express or implied, of the parties. However, attorneys' fees may be taxed as disbursements if allowed by specific statute.
      The only attorneys’ fees that are allowed by statute are: divorce, annulment of marriage, determination of paternity, custody, visitation, separate maintenance, support or alimony. In case the above statute was not sufficiently clear in its public policy of prohibiting attorneys fees except where specifically allowed by statute, SDCL 15-17-39 provides:
      Any provision contained in any note, bond, mortgage, or other evidence of debt that provides for payment of attorneys' fees in case of default of payment or foreclosure is against public policy and void, except as authorized by specific statute.
      In other words, SDCL 15-17-39 provides that attorneys’ fees in "other evidence of debt" are against public policy. How could the public policy of the State of South Dakota be any clearer?


author: STREIT, Justice.

text:
    Matthew John STAMMEYER, Appellant, v. DIVISION OF NARCOTICS ENFORCEMENT OF THE IOWA DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 05-0711.
    Supreme Court of Iowa.
    Aug. 18, 2006.
    Rehearing Denied Sept. 20, 2006.

      John F. Fatino of Whitfield & Eddy, P.L.C., Des Moines, for appellant.
    Thomas J. Miller, Attorney General, and Jeffrey C. Peterzalek, Assistant Attorney General, for appellee.
   STREIT, Justice.

Since the Civil War, Iowa has recognized the enormous contributions made to our lives by veterans of our armed forces by giving preference to veterans seeking employment with the state, as well as employment with the cities, counties, and school corporations within the state. See generally Kitterman v. Bd. of Supervisors, 137 Iowa 275, 115 N.W. 13 (1908). The plaintiff-appellant, Matthew Stammeyer, appeals from the district court’s dismissal of his veterans’ preference claim. The district court dismissed Stammeyer’s claim after it concluded it did not have jurisdiction over the dispute. Because we conclude the proper avenue for his complaint was the grievance procedure set forth by the collective bargaining agreement, we vacate the decision of the court of appeals and affirm the district court’s order granting the State’s motion to dismiss.

I. Facts and Prior Proceedings

Stammeyer served with the Iowa Army National Guard from 1981 through 2002 and qualifies as a “veteran” for the purposes of Iowa Code chapter 35C. See Iowa Code § 35.1(2)(6 )(2) (2003). Stam-meyer has been employed by the Iowa Department of Public Safety, Iowa State Patrol Division, as a trooper since August of 1985. Stammeyer is also a member of a collective bargaining unit subject to a collective bargaining agreement between the State Police Officer Council and the Iowa Department of Public Safety.

In accordance with the provisions of the collective bargaining agreement, Stammeyer requested a transfer to the Division of Narcotics Enforcement (hereinafter “DNE”). Stammeyer interviewed for two positions with DNE but on December 17, 2004, was notified he was not selected to fill either position.

On December 19, 2004, Stammeyer sent a letter to DNE requesting: (1) the specific reasons he was not selected for either DNE position; (2) that any such reasons be filed for public review; and (3) that this information be sent to him within ten days of the successful applicant’s selection.

DNE did not respond to this request, so Stammeyer filed a petition in district court appealing DNE’s decision and applying for a writ of mandamus. See id. § 35C.4 (stating a refusal to allow a veterans’ preference entitles the veteran-applicant to maintain an action of mandamus to right the wrong). Stammeyer alleged he was entitled to preference in employment as a veteran and asked the district court to set aside the appointment and to require DNE to allow him the veterans’ preference. In his application for writ of mandamus, he alleged Iowa Code chapter 35C imposed a duty on DNE, DNE breached this duty, and a writ should lie to “right the wrong.”

The State filed a motion to dismiss alleging the district court lacked subject matter jurisdiction to hear the case because the collective bargaining agreement and chapter 20 of the Iowa Code govern Stammeyer’s transfer and provide the exclusive grievance procedure for resolving disputes. It also alleged the veterans’ preference applies only to “appointment or employment,” not inter-divisional transfers. See id. §§ 35C.1, .3.

The district court concluded the grievance procedures set forth in the collective bargaining agreement controlled the dispute and deprived the court of jurisdiction. See id. § 20.18 (stating public employees shall follow the grievance procedures provided in a collective bargaining agreement).

Stammeyer appealed this dismissal, claiming he was improperly denied the opportunity to raise his veterans’ preference claim in district court. He further contended his veterans’ preference rights were violated when DNE filled one of the positions with a person who was not a current state employee. The State Police Officers Council filed an amicus curiae brief arguing the district court erred in dismissing Stammeyer’s case because the ruling effectively deprived him of the veterans’ preference rights conveyed to him by chapter 35C and deprived him of any meaningful challenge to the actions which disregarded his veterans’ preference rights.

The court of appeals held chapter 20 of the Iowa Code did not preclude Stammeyer from availing himself of the specific remedies set forth in chapter 35C. The court of appeals reversed the district court’s ruling and remanded the case for further proceedings. We granted further review.

II. Standard of Review

“The [district] court has inherent power to determine whether it has jurisdiction over the subject matter of the proceedings before it.” Tigges v. City of Ames, 356 N.W.2d 503, 512 (Iowa 1984). Our scope of review of rulings on subject matter jurisdiction is for correction of errors at law. Id.

III. Merits

The question presented in this case is whether a public employee subject to a collective bargaining agreement can bypass mandatory grievance procedures and seek relief directly from the district court under the Iowa Veterans’ Preference Law. The district court answered this question in the negative, and Stammeyer made two general arguments on appeal: (1) the grievance procedure set forth in the collective bargaining agreement is not the exclusive remedy for veterans’ preference claims; (2) because one of the positions was filled by a person who was not a state employee, he should be treated as a new applicant and not be bound by the collective bargaining agreement. We will address each argument in turn.

A. Exclusive Remedy

Chapter 35C provides veterans are entitled “to preference in appointment and employment over other applicants of no greater qualifications.” Iowa Code § 35C.1(1). A refusal to allow the preference entitles the applicant to maintain an action of mandamus to right the wrong. Id. § 35C.4. If, after receiving evidence, the court finds the veteran/applicant was qualified to hold the position for which he or she has applied, the court can direct further action by the appointing body. Id. § 35C.5.

While chapter 35C does not specifically address employee transfers, the collective bargaining agreement which governs Stammeyer’s employment with the Iowa Department of Safety has explicit provisions that govern the employee transfer process. When making the decision as to which potential transferee should be hired, the agreement provides the employer “will take into consideration ability, job requirements, operational efficiency and seniority.” The employer is not required to take into consideration the applicant’s status as a veteran.

The agreement also sets forth a specific grievance procedure for complaints “involving an alleged violation of a specific provision of the [collective bargaining] Agreement, or the interpretation or application of a term of this Agreement.” The agreement states the grievance procedure shall be “exclusive” and “shall replace any other grievance procedure for adjustment of any disputes arising from the application and interpretation of this Agreement.” See also id. § 20.18 (stating public employees shall follow the grievance procedures provided in a collective bargaining agreement).

Stammeyer contends public employees who are subject to collective bargaining agreements are also allowed to pursue remedies under chapter 35C because veterans’ preferences are not a mandatory subject of collective bargaining and chapter 35C overrides any inconsistent provisions in a collective bargaining agreement. This argument involves the intersection of two different chapters of the Iowa Code'— veterans’ preference rights under chapter 35C and public employment relations (collective bargaining) under chapter 20.

Iowa Code chapter 20, the Public Employment Relations Act, is designed “to promote harmonious and co-operative relationships between government and its employees by permitting public employees to organize and bargain collectively.” Id. § 20.1. Section 20.9 provides the public employer and the employee organization shall meet to negotiate with respect to

wages, hours, vacations, insurance, holidays, leaves of absence, shift differentials, overtime compensation, supplemental pay, seniority, transfer procedures, job classifications, health and safety matters, evaluation procedures, procedures for staff reduction, in-service training and other matters mutually agreed upon.

(Emphasis added.) The product of these negotiations is the collective bargaining agreement.

Chapter 20 places one important limitation on the scope of collective bargaining agreements. It ensures that Iowa statutes supersede terms in a collective bargaining agreement that are inconsistent with Iowa law. Section 20.28 provides:

A provision of the Code which is inconsistent with any term or condition of a collective bargaining agreement which is made final under this chapter shall supersede the term or condition of the collective bargaining agreement unless otherwise provided by the general assembly.

(Emphasis added.) Stammeyer argues the phrase in section 35C.1 which states “preference in appointment and employment over other applicants of no greater qualifications” gives veterans’ preference rights to current state employees seeking a transfer. He argues the transfer provisions in the collective bargaining agreement which do not give such a preference are therefore inconsistent with the Iowa Code. Because of this alleged inconsistency, Stammeyer contends he is not subject to the mandatory grievance procedures set forth in the collective bargaining agreement. In order for this court to conclude Stammeyer was not subject to the mandatory grievance procedures set forth in the collective bargaining agreement, we must first find there is an inconsistency between the collective bargaining agreement and section 35C.1.

On its face, section 35C.1 does not expressly indicate veterans deserve a preference when interviewing for a job transfer. Stammeyer does not argue that “appointment” means more than an initial hiring decision. Instead, he argues the legislature intended for the term “employment” to be interpreted broadly so that it encompasses other employment decisions made after the initial hire.

We do not interpret this term so broadly. Chapter 35C grants veterans a preference at the time of the initial hire and, as discussed below, at the time of removal. There is nothing to suggest veterans are to be given ongoing preferences during their term of employment.

Beyond the preference in “appointment and employment,” the legislature granted veterans a preference for veterans facing removal from their employment. This removal statute shines light on the legislature’s choice of meaning for the word “employment.” Section 35C.6 states:

No person holding a public position by appointment or employment, and belonging to any of the classes of persons to whom a preference is herein granted, shall be removed from such position or employment except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges, and with the right of such employee or appointee to a review by a writ of certiora-ri or at such person’s election, to judicial review in accordance with the terms of the Iowa administrative procedure Act, chapter 17A, if that is otherwise applicable to their case.

Use of the phrase “holding a public position by appointment or employment” implies a narrow interpretation of the term “employment.” The term “holding” refers to the status of the employee. The phrase “by appointment or employment” describes how the veteran got the position to begin with. One can either be appointed to the position, or employed in the position through the regular hiring process. The confluence of these terms in the phrase “holding a public position by appointment or employment” indicates the legislature intended the term “employment” to be used as an alternative description of how the veteran got the position; not as a broad term encompassing all employment decisions made after the initial hire.

The legislative history surrounding section 35C.1 also implies the term “employment” does not refer to subsequent employment decisions. Prior to 1985, the veterans’ preference statute expressly stated veterans were “entitled to preference in appointment, employment, and promotion over other applicants of no greater qualifications.” See Iowa Code § 70.1 (1985) (now codified in Iowa Code § 35C.1). However, in 1985, the Iowa legislature removed the preference for promotions. 1985 Iowa Acts ch. 50, § 1. By removing the phrase “and promotions,” the legislature restricted the veterans’ preference to the initial hiring decision and, as noted in section 35C.6, to the employment discharge decision. In total, we simply cannot interpret the phrase “appointment and employment” so broadly that it encompasses other decisions made during employment.

An analysis of case law from other jurisdictions supports this conclusion. In Pinther v. Wyoming, 866 P.2d 1300 (Wyo.1994), the Wyoming Supreme Court faced a similar challenge to a veterans’ preference statute that was very similar to the Iowa veterans’ preference statute. A state employee, who was a veteran, argued the Wyoming veterans’ preference statute, which stated veterans and their widows “shall be preferred for appointment or employment,” meant he was entitled to the preference when he applied for a job transfer. Pinther, 866 P.2d at 1303 (citing Wyo. Stat. Ann. § 19-6-102(a) (1977)). The Wyoming Supreme Court disagreed. Id. at 1304. The court noted the Wyoming legislature intended for the veterans’ preference statute to give qualified veterans the benefit of a competitive advantage in the state hiring process. Id. The court found this benefit was fully satisfied when the legislature gave the preference only to those veterans who were initially seeking state employment. Id. As a result, the court concluded the preference in “appointment or employment” did “not extend to a qualified veteran who [was] a state employee seeking a transfer to another state agency.” Id. at 1303-04.

Several federal courts have also concluded veterans’ preference rights do not extend to current government employees seeking a transfer to a different position. In Brown v. Department of Veterans Affairs, 247 F.3d 1222, 1224 (Fed.Cir.2001), the Court of Appeals for the Federal Circuit analyzed the Veterans’ Preference Act (VPA) as codified in 38 U.S.C. § 4214 (1994). Even though the purpose of section 4214 was “to promote the maximum of employment and job advancement opportunities within the Federal Government for ... veterans,” the court of appeals noted that “veterans are not accorded limitless rights and benefits” and concluded veterans were not accorded any preference under the VPA when seeking promotion or intra-agency transfers. Brown, 247 F.3d at 1224 (quoting 38 U.S.C. § 4214(a)(1)).

Also, in a suit brought by city mail carriers who desired positions as rural mail carriers at the same salary, the Court of Appeals for the Eleventh Circuit analyzed the VPA and stated “veterans’ preference only applies to initial employment, not to movement of an incumbent employee from one job to another within an agency” and “[t]he scope of veterans’ preference cannot be enlarged by the fiction of treating within-agency movement as initial employment.” Glenn v. U.S. Postal Serv., 939 F.2d 1516, 1521-23 (11th Cir.1991). And finally, in Pulley v. Tennessee Valley Authority, 368 F.Supp. 90, 93 (M.D.Tenn.1973), a Tennessee district court recognized the VPA provided a preference both in appointment and retention in federal positions, but found “promotion and non-promotion, transfer and non-transfer of employees within a department of government [was] a matter of supervisory discretion and not ordinarily subject to judicial review.”

In short, when divining whether the phrase “preference in employment and appointment” should be interpreted broadly to encompass intra-agency transfers, we find no authority indicating the legislature, after removing the term “and promotion” from the veterans’ preference statute in 1985, intended veterans be given preferences in intra-agency transfer requests.

Because we do not find the present veterans’ preference applicable to intra-agen-cy transfers, we conclude there is no inconsistency between the transfer provisions in the collective bargaining agreement and chapter 35C. Without this inconsistency, there is no right of action that trumps the mandatory grievance procedures set forth in the collective bargaining agreement.

Even if there is no inconsistency, Stam-meyer contends our decision in O’Malley v. Gundermann, 618 N.W.2d 286 (Iowa 2000), establishes two separate avenues of relief for a veteran subject to a collective bargaining agreement — the grievance procedures under the collective bargaining agreement and a petition with the district court under chapter 35C. Stammeyer argues O’Malley stands for the principle that claims under chapter 35C are distinct from avenues of redress for violations of the collective bargaining agreement.

We disagree. Stammeyer’s argument stretches beyond the issues ruled upon in O’Malley. O’Malley was a veteran whose employment at the Iowa Veterans’ Home was terminated after he sold a knife to one of the Home’s residents. O’Malley, 618 N.W.2d at 288. O’Malley challenged his dismissal through the grievance procedures set forth in the applicable collective bargaining agreement. Id. at 289. This process took several months. Once an arbitrator concluded O’Malley was discharged for proper cause, O’Malley filed a petition in district court seeking a writ of certiorari. Id. In this petition he alleged the action of the arbitrator, in determining he had been discharged for just cause, was in violation of his rights as a veteran under Iowa Code section 35C.6 (employment removal procedures). Id. The district court concluded, however, that the act O’Malley claimed was illegal was not the arbitrator’s decision but his employer’s termination decision. Id. The court ruled it lacked subject matter jurisdiction to consider the petition because it had not been filed within thirty days of O’Malley’s termination. Id. at 290.

We affirmed the district court’s decision. The discharge decision was final at the time it was made, and the delay in processing the challenge through the arbitration required by the collective bargaining agreement rendered the petition for writ of certiorari untimely. Id. at 291-92 (citing Iowa Rule of Civil Procedure 319 (now rule 1.1402(3)) which states a petition for writ of certiorari “must be filed within thirty days from the time the tribunal, board, or officer exceeded its jurisdiction or otherwise acted illegally”). Because the petition for a writ of certiorari was not filed in a timely manner, we concluded the court did not have jurisdiction to hear the claim. Id.

The issue in O’Malley was the determination of the time frame for filing a chapter 35C certiorari action for O’Mal-ley’s allegedly improper removal. Id. (“the issue here is whether O’Malley filed his petition in a timely manner”). We were not presented with the separate and distinct question as to whether he was required to first exhaust the grievance procedures set forth in the collective bargaining agreement before he could file his chapter 35C improper removal petition. In addition, O’Malley is distinguished from the present case because it concerned veterans’ rights surrounding removal from employment, not veterans’ preference rights in hiring decisions.

B. Transfer or Employment

Because a person outside the Department of Public Safety was hired for one of the positions for which he had applied, Stammeyer argues he should have been treated as a new applicant competing with other applicants for a vacant position. Under this theory, he would thereby receive the veterans’ preference and retain his right to petition the district court directly without any reference to the collective bargaining agreement. Stated another way, Stammeyer argues his request for an inter-divisional transfer to DNE should be treated the same as a request from a new, non-transferring applicant; otherwise, there would be an unfair distinction between a current “veteran” employee and a new hire and he would lose the preference granted in section 35C.1.

The State contends this argument was not preserved for appellate review because the district court did not rule on the issue and Stammeyer did not file a motion asking the court to enlarge its findings to rule upon the issue. The State’s argument is based on the fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal. Wilson v. Liberty Mut. Group, 666 N.W.2d 163, 167 (Iowa 2003). “When a district court fails to rule on an issue properly raised by a party, the party who raised the issue must file a motion requesting a ruling in order to preserve error for appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). If the court does not rule on an issue and neither party files a motion requesting the district court to do so, there is nothing before us to review. Wilson, 666 N.W.2d at 167. Such is the case at hand.

At the conclusion of its ruling, the district court stated:

For the reasons set out above, the former statute controls over the latter, and this court does not have jurisdiction over the present dispute. As such, there is no reason to reach the appellee’s [the State’s] second argument regarding the applicability of chapter 35C to intra-agency transfers.

There is nothing indicating the court ruled upon or even considered Stammeyer’s “new hire/transfer” argument. Despite the missing ruling, Stammeyer contends he did not need to file a further motion because “it strains credulity to suggest that a further ruling from the district court would be necessary to preserve error on this point.” Stammeyer claims “the district court was presented with the argument, but in light of its ruling on the issue, it could not reach the latter argument.”

We disagree. If there are alternative claims or defenses, and the district court does not rule on all alternative claims or defenses, the losing party must file a posttrial motion to preserve error on the claims or defenses not ruled on. See, e.g., Sandbulte v. Farm Bureau Mut. Ins. Co., 343 N.W.2d 457, 466 (Iowa 1984) (“We do not pass on alternative arguments and matters set forth in defendants’ motions for summary judgment that were not specifically addressed by the trial court’s ruling.”). This new hire/transfer argument is distinct from the court’s ruling which considers whether the collective bargaining agreement controls the grievance procedure. This can best be described as an “even-if’ argument — even if the court finds Stammeyer should have followed the grievance procedures set forth in the collective bargaining agreement because he was a current employee competing with other current employees for a job transfer, he could still pursue a chapter 35C claim in district court because he was (for at least one of the positions) competing against an applicant who was not a current employee. For whatever reason, the district court did not address Stammeyer’s even-if argument, and Stammeyer did not file a motion requesting that the court do so. Without such a ruling or motion requesting a ruling, there is nothing for us to review on this issue. See id.

IV. Conclusion

Chapter 35C does not grant a veterans’ preference for intra-agency transfers. Therefore, Stammeyer was required to pursue his claim via the grievance procedure set forth in the collective bargaining agreement. We vacate the decision of the court of appeals and affirm the district court’s order granting the State’s motion to dismiss.

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

      . In Geyer v. Triplett, 237 Iowa 664, 669, 22 N.W.2d 329, 332 (1946), we stated that the soldiers' preference statute should be given a "liberal construction”; however, we also noted that "such act should be so construed, when within reason possible, so that its evident purpose be accomplished.” See also Krohn v. Judicial Magistrate Appointing Comm’n, 239 N.W.2d 562, 564 (Iowa 1976) ("Although the provisions of the soldiers preference law are to be liberally construed they should yield to the power to select members of the judiciary.... To hold the soldiers preference law applicable to appointment for the office [of judicial magistrate] would inappropriately limit and restrict the options of the commission ....”). As noted above, the evident purpose of chapter 35C was to reward veterans by giving them a preference in initial hiring decisions.