author: CADY, Justice.

text:
    CITY OF OKOBOJI, Iowa, Appellee, v. OKOBOJI BARZ, INC. d / b / a O’Farrell Sisters and Leo Parks, Jr., Appellants.
    No. 06-0269.
    Supreme Court of Iowa.
    March 14, 2008.

      Phil C. Redenbaugh of Phil Reden-baugh, P.C., Storm Lake, for appellants.
    Michael J. Chozen of Chozen & Saunders, Spirit Lake, for appellee.
   CADY, Justice.

In this appeal, we must decide whether a city ordinance prohibits the sale and service of alcoholic beverages in conjunction with the operation of a restaurant as a nonconforming use. We conclude the sale and service of alcoholic beverages would not alone violate the ordinance. We vacate the decision of the court of appeals, reverse the judgment of the district court, and remand.

I. Background Pacts and Proceedings.

Edna Mae, Arlene, and Fern O’Farrell opened a small, family-oriented restaurant in the City of Okoboji in 1958 called “O’Farrell Sisters.” The three sisters successfully operated O’Farrell Sisters for decades, and other family members later continued the restaurant operation. The restaurant maintained its quaint appearance over the years and was particularly recognized for its pancake breakfast. O’Farrell Sisters remains a popular dining landmark in the great lakes area today under the same name.

The restaurant is located on Lakeshore Drive in a small building situated on a triangular-shaped lot. It overlooks Smith’s Bay on West Lake Okoboji. The restaurant building occupies a large portion of the lot. The dining area of the restaurant is 740 square feet and accommodates table seating for approximately fifty patrons. The restaurant also has an eight-foot counter with five stools. A fish-shaped “O’Farrell Sisters” sign is located on the roof of the building. The word “beer” is inscribed on the sign. When the restaurant first opened, alcoholic beverages were sold to patrons. As in the past, the restaurant serves breakfast, lunch, and dinner and remains open until 10 or 11 p.m.

In 1972, the City of Okoboji adopted a comprehensive zoning ordinance. The O’Farrell Sisters property was rezoned for commercial use at the time, although much of the property in the area, especially to the south and west of the restaurant, was used for residential housing. In 1978, the area was rezoned into a single-family residential district. This classification limited use of property in the district to single-family homes and duplexes. The O’Farrell Sisters Restaurant continued to operate on the property as a preexisting, nonconforming use.

The rezoning in 1978 was prompted by the death of Edna Mae O’Farrell, the last of the three sisters involved in the operation of the restaurant. The city was concerned at the time that the restaurant would be sold and converted into a bar. It changed the zoning classification to preserve the integrity of the area and to reflect its predominant use.

In 1994, the restaurant operators allowed the liquor license for the restaurant to expire. Alcoholic beverages have not been sold and served on the premises since that time.

In 2004, Leo Parks purchased the restaurant. Parks owns and operates a corporation called Okoboji Barz, Inc. He continued to operate the restaurant in the same manner as in the past, but promptly applied to the city for a class “C” liquor license. Parks wanted to resume the sale and service of alcoholic beverages to patrons, but claimed he had no intention of transforming the restaurant into a bar or tavern. The city denied the application. It determined the sale and service of alcoholic beverages at the restaurant would violate the zoning ordinance. Parks appealed the ruling to the Iowa Department of Commerce, Alcoholic Beverages Division.

At the same time, the city feared Parks would ultimately transform the restaurant into a bar or tavern if he was successful in his appeal. Consequently, it filed a petition in district court for a temporary and permanent injunction to prohibit Parks from “operating a bar or tavern” on the premises. The city and Parks later additionally sought declaratory relief. The city asked the district court to declare Parks could not operate a bar on the restaurant premises. Parks asked the district court to declare that the sale and service of alcoholic beverages at the restaurant under a class “C” liquor license would not violate the city ordinance. The administrative law judge who heard the appeal from the city’s decision to deny the liquor license determined Parks would be entitled to a liquor license if he succeeded in his declaratory relief action in district court.

At the hearing before the district court, Parks introduced evidence that other restaurants in the area that serve dinner commonly serve alcoholic beverages pursuant to a license. The city did not contest this evidence and did not introduce evidence that the sale and service of alcoholic beverages by the restaurant would adversely impact the surrounding neighborhood. Instead, the city claimed the sale of alcoholic beverages was not permitted as a matter of law under the ordinance.

The district court denied the injunction. It found Parks had no intent to sell alcoholic beverages without a class “C” liquor license. Consequently, the district court determined no irreparable harm would result if the injunction was not issued. However, the district court declared Parks was “no longer authorized to operate a bar selling alcoholic beverages to the public” on the premises because the sale of alcoholic beverages would constitute a separate and distinct nonconforming use and an expansion of an existing nonconforming use. The district court also rejected the claim by Parks that the zoning ordinance constituted impermissible spot zoning.

Parks appeals and raises three claims. First, he claims the district court erred by concluding the sale of alcoholic beverages pursuant to a class “C” permit would constitute a distinct nonconforming use of the property. Second, Parks claims the trial court erred in concluding the sale and service of alcoholic beverages would be an unlawful expansion of a nonconforming use. Finally, Parks claims the trial court erred in concluding the 1978 rezoning scheme did not constitute impermissible spot zoning.

We transferred the case to the court of appeals. It remanded the case to the district court to enter an order for the city to issue a liquor license for the restaurant. It held the sale of alcoholic beverages at the restaurant would not constitute a nonconforming use or an expansion of the existing nonconforming use. The city sought, and we granted, further review.

II. Standard of Review.

This case was tried in equity. As such, our review is de novo. Passehl Estate v. Passehl, 712 N.W.2d 408, 414 (Iowa 2006); Iowa R.App. P. 6.4 (2003). “Under this review, we give weight to the fact findings of the district court, especially as to the credibility of witnesses, but we are not bound by them.” City of Okoboji v. Okoboji Barz, Inc., 717 N.W.2d 310, 313 (Iowa 2006).

III. Issues Presented,

The district court declared Parks was not “authorized to operate a bar selling alcoholic beverages to the public” on the premises. In doing so, the district court denied Parks’ request for a declaration that the issuance of a liquor license for the restaurant was not prohibited under the zoning ordinance. On appeal, Parks challenges the prohibition against the issuance of a liquor license. Parks acknowledges he does not desire to change the restaurant into a tavern or nightclub, but only wants to sell and serve alcoholic beverages to the restaurant patrons. Thus, the fundamental issue we face is whether this restaurant will retain its status as a legal, nonconforming use if alcoholic beverages are sold and served to patrons.

IY. Nonconforming Use.

A nonconforming use of property is one that lawfully existed prior to the time a zoning ordinance was enacted or changed, and continues after the enactment of the ordinance even though the use fails to comply with the restrictions of the ordinance. Perkins v. Madison County, 613 N.W.2d 264, 270 (Iowa 2000). The prior use of the property essentially establishes a vested right to continue the use after the ordinance takes effect. See Quality Refrigerated Servs. v. City of Spencer, 586 N.W.2d 202, 206 (Iowa 1998). The nonconforming use is permitted to continue until legally abandoned. Iowa Coal Mining Co. v. Monroe County, 555 N.W.2d 418, 430 (Iowa 1996). However, the nonconforming use cannot be enlarged or extended. Stan Moore Motors, Inc. v. Polk County Bd. of Adjustment, 209 N.W.2d 50, 52 (Iowa 1973). This limiting principle is carved into the city ordinance at issue in this case. The ordinance expresses an intent “to permit ... nonconformities to continue until they are removed, but not to encourage their survival,” and provides “that nonconformities shall not be enlarged upon, expanded or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same district.” Okoboji Zoning Ordinance art. IV, § 3. Nevertheless, the body of law governing nonconforming uses of property recognizes “[ljandowners are given some latitude ... and may change the original nonconforming use ‘if the changes are not substantial and do not impact adversely on the neighborhood.’ ” Perkins, 613 N.W.2d at 270 (citing City of Jewell Junction v. Cunningham, 439 N.W.2d 183, 186 (Iowa 1989)).

In this case, the city does not rely on any particular facts and circumstances associated with the sale and service of alcoholic beverages by the restaurant to support its claim that Parks would substantially expand the nonconforming use of his property as a restaurant by serving alcoholic beverages to patrons. Instead, it asserts the underlying sale of alcoholic beverages, under the ordinance, is a separate and distinct use of the property from the current use of the property as a restaurant. As a result, the city maintains, as the district court found, that expanding the nonconforming use of the property as a restaurant to also include a separate and distinct use not permitted in the zoning district would constitute an illegal expansion or addition of the nonconforming use as a matter of law. Additionally, the city asserts, as the district court found, the prior separate and distinct nonconforming use of the property to sell and consume beer was abandoned in 1994 and cannot, as a matter of law, be resumed under the ordinance.

The nonconforming use of property “must be a continuation of the same use and not some other kind of use.” 8A Eugene McQuillin, The Law of Municipal Corporations § 25.206, at 138 (3d ed. rev. vol.2003). On the other hand, a nonconforming use is a legal use of property, and accessory uses allowed under an ordinance are generally permitted in conjunction with the continued operation of a nonconforming use. Okoboji Barz, Inc., 717 N.W.2d at 315.

The city does not address the sale and service of alcoholic beverages as an accessory use under the ordinance. Instead, the city only maintains the sale and service of alcoholic beverages is a separate and distinct use of property under the ordinance, which was abandoned as a nonconforming use after the ordinance was enacted so that the proposed resumption of the use would constitute a prohibited expansion of the nonconforming use of the property as a restaurant.

We begin our examination of this claim by considering the city’s premise that the zoning ordinance treats the sale and service of alcoholic beverages as a separate and distinct use of property. The ordinance contains a comprehensive list of defined terms. See Okoboji Zoning Ordinance art. II. Only three defined terms mention the sale and service of alcoholic beverages. See id. The ordinance defines a “cocktail lounge, cabaret” as a business where a variety of activities take place, including the sale of alcoholic beverages for consumption. Id. The ordinance defines a “nightclub” as an establishment engaged in entertainment and other activities, including the service for on-premises consumption of alcoholic beverages. Id. Lastly, the ordinance defines a “tavern” as an establishment primarily engaged in serving alcoholic beverages for on-premises consumption, with the option of serving food. Id. On the other hand, the ordinance defines a restaurant as a place “where meals ... are prepared,” without any reference to the sale and service of alcoholic beverages. Id. The city asserts this approach of limiting the sale and service of alcoholic beverages to only three specific uses of property, while excluding the sale and service of alcoholic beverages from the definition of a restaurant, expresses a clear intent for the sale and service of alcoholic beverages to be a separate and distinct use of property from the use of property as a restaurant.

We agree with the city that the sale and service of alcoholic beverages is a specific permitted activity in the operation of three types of businesses. We also agree with the city that the sale and service of alcoholic beverages is not a specific permitted activity in the use of property as a restaurant. Yet, the interpretation by the city essentially ignores the doctrine of accessory uses of property.

Accessory-use provisions are a common component to municipal ordinance schemes because it is next to impossible for a zoning ordinance to express “ ‘every possible lawful use’ ” of property. Hannigan v. City of Concord, 144 N.H. 68, 738 A.2d 1262, 1266 (1999) (quoting Town of Salem v. Durrett, 125 N.H. 29, 480 A.2d 9, 10 (1984)). Thus, the doctrine of accessory uses contemplates property may be used in ways not expressly permitted under the ordinance. Id.

The City of Okoboji ordinance specifically recognizes accessory uses of property and buildings and defines an accessory use as

a use or structure subordinate to the principal use of a building on the lot and serving a purpose customarily incidental to the use of the principal building or an accessory lakeshore storage building.

Okoboji Zoning Ordinance art. II. If an accessory use under the ordinance is limited to uses not specifically included in the definition of other uses, then the general definition of “accessory use” would largely be rendered superfluous. Hannigan, 738 A.2d at 1266-67. In interpreting ordinances, we are obligated to consider the ordinance as a whole and give all parts of it meaning. Kordick Plumbing & Heating Co. v. Sarcone, 190 N.W.2d 115, 117 (Iowa 1971). Moreover, such an interpretation conflicts with the purpose and policy of accessory uses built into the ordinance.

Accordingly, we reject the conclusion of the district court that the sale and service of alcoholic beverages in conjunction with the operation of a nonconforming use of property as a restaurant constitutes an expansion of the nonconforming use as a matter of law. Likewise, we reject the conclusion of the district court that the sale and service of alcoholic beverages was a nonconforming use of the property that was abandoned after the enactment of the ordinance. The principal and primary use of this property since 1958 has been as a restaurant, and the restaurant is a nonconforming use that is permitted to continue today. Thus, the fighting question is whether the sale and service of alcoholic beverages is permissible as an accessory use under the ordinance to the nonconforming use of the property as a restaurant. See McQuillin § 125.125, at 421-22 (“The question what constitutes auxiliary and incidental uses has particular significance relevant to authorized primary nonconforming uses, since in an important sense they measure the extent of rights in such uses.”). Parks argues that the proposed sale and service of alcoholic beverages is substantially the same use of the property as a restaurant.

Unless an ordinance specifies the types of accessory uses, a particular use will be accessory when it is customary and incidental to the principal use of the property. Simmons v. Zoning Bd. of Appeals, 60 Mass.App.Ct. 5, 798 N.E.2d 1025, 1028 (2003). The ordinance in this case reflects this standard. A use is customary so as to qualify as an accessory use when it is often found in conjunction with the principal use. Stochel v. Planning Bd., 348 N.J.Super. 636, 792 A.2d 572, 578 (2000); see also City of Emmetsburg v. Mullen, 256 Iowa 885, 129 N.W.2d 677, 678 (Iowa 1964) (noting proof of the manner in which other buildings in the district are utilized is useful in “determining just what construction or interpretation the city officials, and in fact city residents, place upon the provisions of the ordinance relative to accessory uses”). In other words, the question is whether the accessory use is so common that the ordinance could not have intended to prevent its use. Whaley v. Dorchester County Zoning Bd. of Appeals, 337 S.C. 568, 524 S.E.2d 404, 410 (1999).

Parks produced ample evidence in this case that restaurants in the great lakes region customarily serve alcoholic beverages to dining patrons. The city did not dispute this evidence. Based on the undisputed evidence, we conclude the City of Okoboji ordinance does not preclude the sale and service of alcoholic beverages as an accessory use to the principal use of property as a restaurant. Thus, the only remaining question is whether the sale and service of alcoholic beverages would nevertheless constitute an expansion of a nonconforming use.

This legal issue has been addressed by a number of other jurisdictions. Indeed, a number of courts have held the addition of the sale of alcohol is an unlawful extension of a nonconforming restaurant as a matter of law. See Fulford v. Bd. of Zoning & Adjustment, 256 Ala. 336, 54 So.2d 580, 582 (1951) (holding “the sale of beer in connection with the operation of a restaurant on said premises was and is an unlawful and unauthorized extension of the nonconforming restaurant business” under the city’s zoning ordinance); Town Council v. State Bd. of Equalization, 141 Cal.App.2d 344, 296 P.2d 909, 912 (1956) (declaring addition of liquor sales to nonconforming restaurant already selling beer “ ‘would be an extension and enlargement of their existing nonconforming use of the property and would create a use of the property prohibited by the zoning ordinance’ ” (quoting Salemi v. Scheuy, 140 Conn. 566, 102 A.2d 528, 531 (1954))); Hooper v. Del. Alcoholic Beverage Control Comm’n, 409 A.2d 1046, 1050 (Del.1979) (“Introducing the sale of alcoholic beverages into [a residential] district would, in our judgment, be an unlawful extension of a nonconforming restaurant business.”). Those courts rely on the idea that the sale of alcoholic beverages changes the nature and character of a restaurant as a matter of law.

On the other hand, a number of courts have allowed nonconforming restaurants or hotels to add the sale of alcoholic beverages. See Redfearn v. Creppel, 455 So.2d 1356, 1361 (La.1984) (allowing nonconforming restaurant to sell alcoholic beverages); Gauthier v. Village of Larchmont, 30 A.D.2d 303, 291 N.Y.S.2d 584, 587 (N.Y.App.Div.1968) (allowing nonconforming hotel to sell alcoholic beverages); Appeal of Sawdey, 369 Pa. 19, 85 A.2d 28, 31 (1951) (same). These cases hold the sale of alcoholic beverages to be an accessory use. See Redfearn, 455 So.2d at 1361 (“[T]he sale of alcoholic beverages is properly an accessory use to the restaurant operation”); Gauthier, 291 N.Y.S.2d at 587 (“Clearly, the service of liquor refreshment is inseparable from a modern hotel and as a matter of law a bar therein is an accessory use.”); Sawdey, 85 A.2d at 31 (“[T]he accommodation of the service of liquor refreshment is usually regarded to be largely inseparable from a modern hotel.”).

These cases largely reflect that the different outcomes are driven by the particular facts and circumstances. Under some circumstances, the sale of alcoholic beverages by a restaurant can create different conditions, and the restaurant can take on different characteristics. Yet, under other circumstances, the sale of alcoholic beverages incidental to the service of meals may not alter the existing operation of the restaurant or characteristic of the area.

While the evidence in this case shows area restaurants customarily service alcoholic beverages with meals, this evidence only helps establish that the sale of alcoholic beverages can be an accessory use. Yet, we are not required in this case to decide if the particular manner that Parks ultimately operates his restaurant if issued a liquor license will constitute an expansion of the restaurant. We only declare that the city ordinance does not prohibit a restaurant from serving alcoholic beverages as an accessory use, and the sale and service of alcoholic beverages does not, by itself, constitute an unlawful expansion of this nonconforming restaurant.

We conclude the district court erred in granting the requested declaratory relief. The district court also erred in failing to grant Parks’ request for a declaration that the city ordinance does not prohibit the issuance of a license to sell and serve alcoholic beverages at O’Farrell Sisters in conjunction with the operation of the restaurant. However, we only hold that the sale and service of alcoholic beverages to restaurant patrons is not prohibited under the ordinance as a matter of law and that it does not constitute an expansion of a nonconforming use of the property as a restaurant as a matter of law. Thus, the declaration sought by Parks is limited to this specific holding. We express no opinion whether Parks is automatically entitled to a liquor license or whether the manner he may ultimately operate the restaurant upon issuance of any liquor license would not violate the ordinance as an expansion of a nonconforming use.

V. Conclusion.

We reverse the judgment of the district court and remand the case for entry of a declaratory judgment in accordance with this opinion.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED; AND CASE REMANDED.

      . The parties correctly agree the restaurant is a legal nonconforming use. The city's zoning ordinance explicitly provides: "The lawful use of a building existing at the time of the enactment of this Ordinance may be continued even though such use may not conform with the regulations of this Ordinance for the district in which it is located.” Okoboji Zoning Ordinance art. IV, § 2. The ordinance defines nonconformities as "lots, structures, buildings and uses which were lawful before this ordinance was effective or amended, but which would be prohibited, regulated or restricted under the provisions of this Ordinance or future amendment,” and allows "nonconformities to continue until they are removed.” Okoboji Zoning Ordinance art. IV, § 3.


source: Caselaw Access Project

author: /s/Alan C. Page Associate Justice

license: Public Domain

text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST Albert A. GARCIA, Jr., a Minnesota Attorney, Registration No. 219472.
    No. A07-1819.
    Supreme Court of Minnesota.
    Jan. 23, 2008.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Albert A. Garcia, Jr., committed professional misconduct warranting public discipline. Although respondent initially filed an answer to the petition, respondent and the Director have entered into a stipulation under which respondent admits certain allegations of the petition and the Director has withdrawn the remainder. The allegations that have not been withdrawn, and to which respondent admits, may be summarized as establishing that respondent included unethical terms in a fee agreement, failed to promptly return a substitution of counsel following his suspension from practice in February 2006, and made an unauthorized charge to a client’s credit card, in violation of Minn. R. Prof. Conduct 8.4(d), 1.16(d), 1.4, 1.5(a) and (b), and 8.4(c).

Respondent unconditionally admits the allegations of the petition that have not been withdrawn, waives his procedural rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and with the Director jointly recommends that the appropriate discipline is a public reprimand and probation for a period of two years, subject to the following conditions:

(a) Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation by promptly responding to the Director’s correspondence by the due date. Respondent shall provide to the Director a current mailing address and shall immediately notify the Director’ of any change of address. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
(b) Respondent shall abide by the Minnesota Rules of Professional Conduct.

The court has independently reviewed the file and approves the jointly recommended discipline.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Albert A. Garcia, Jr., is publicly reprimanded and placed on probation for two years from the date of filing of this order, subject to the conditions set forth above. Respondent shall pay $900 in costs pursuant to Rule 24, RLPR.

BY THE COURT:

/s/Alan C. Page Associate Justice


author: /s/Alan C. Page Associate Justice.

text:
    In re DISCIPLINARY ACTION AGAINST Jon K. SANNES, a Minnesota Attorney, Registration No. 204316.
    No. A08-43.
    Supreme Court of Minnesota.
    Jan. 23, 2008.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Jon K. Sannes committed professional misconduct warranting public discipline, namely, violating the terms of our October 3, 2006, order placing respondent on unsupervised probation on condition that, among other things, respondent abide by all of the terms of his criminal probation for driving while intoxicated and maintain total abstinence from alcohol and other mood-altering chemicals. The petition for disciplinary action alleges that respondent violated the terms of his criminal probation and the terms of our October 2006 order by consuming alcohol to intoxication, as verified by a breath test, and that respondent violated the terms of our October 2006 order by failing to immediately notify the Director of the allegation that respondent had violated the terms of his criminal probation and by failing to attend Alcoholics Anonymous or other outpatient alcohol treatment program during specified time periods. The petition alleges that respondent’s conduct violated Rule 8.4(d) of the Minnesota Rules of Professional Conduct.

Respondent admits the allegations of the petition, waives his procedural rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is a public reprimand and an extension of respondent’s disciplinary probation for an additional two years upon the following conditions:

(a) Respondent shall abide by all of the terms of his criminal probation and shall immediately notify the Director’s Office of any allegations or accusations that respondent is not in full compliance with any term of his criminal probation.
(b) Respondent shall maintain total abstinence from alcohol and other mood-altering chemicals, except that respondent may use prescription drugs in accordance with the directions of a prescribing physician who is fully advised of respondent’s chemical dependency before issuing the prescription.
(c) Respondent shall attend weekly meetings of Alcoholics Anonymous or other outpatient alcohol treatment program acceptable to the Director. Respondent shall, by the tenth of each month, without a specific reminder or request, submit to the Director an attendance verification on a form provided by the Director, which provides the name, address and telephone number of the person personally verifying respondent’s attendance.
(d) Respondent shall follow all ongoing recommendations of the chemical dependency assessment conducted in July 2007.

The court has independently reviewed the file and approves the jointly recommended disposition.

Based on all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Jon K. Sannes is publicly reprimanded and placed on two years’ unsupervised probation, subject to the terms and conditions set forth above. Respondent shall pay costs and disbursements in the amount of $900.

BY THE COURT:

/s/Alan C. Page Associate Justice.

ANDERSON, RUSSELL A., C.J., took no part in the consideration or decision of this ease.


author: /s/ALAN C. PAGE, Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Alan Francis MUSIELEWICZ, a Minnesota Attorney, Registration No. 207895.
    No. A08-347.
    Supreme Court of Minnesota.
    March 20, 2008.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition alleging that respondent Alan Francis Musielewiez committed professional misconduct warranting public discipline, namely, deposit of funds belonging to A.N.Y. into his trust account not in connection with a representation, and converting those funds into his personal funds and maintaining them in his trust account, in violation of Rule 1.15, Minnesota Rules of Professional Conduct.

Respondent admits the allegations of the petition, waives his procedural rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and joins with the Director in recommending that the appropriate discipline is a 60-day suspension, with reinstatement by affidavit conditional upon repayment of $7,780.35 to A.N.Y.

The court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Alan Francis Musielewicz is suspended from the practice of law for 60 days, effective as of the date of filing of this order. Respondent shall be reinstated following the expiration of the suspension period provided that, at least 15 days before the expiration of the suspension period, respondent files an affidavit pursuant to Rule 18(f), RLPR, with the Clerk of Appellate Courts and the Director’s Office establishing that respondent has paid A.N.Y. the sum of $7,780.35 and has complied with the other requirements of Rule 18(f). Respondent shall comply with Rule 26, RLPR (requiring notice of suspension to clients, opposing counsel, and tribunals), and shall pay costs in the amount of $900 pursuant to Rule 24(a), RLPR.

BY THE COURT:

/s/ALAN C. PAGE, Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Ronald Lyle KOPESKA, a Minnesota Attorney, Registration No. 5754X.
    No. A07-2152.
    Supreme Court of Minnesota.
    March 20, 2008.
   ORDER

On December 7, 2007, this court suspended respondent from the practice of law for a period of 90 days. Respondent has filed an affidavit stating that he has fully complied with the terms of the suspension order, save for successful completion of the professional responsibility portion of the state bar examination, and requests reinstatement. The Director of the Office of Lawyers Professional Responsibility does not oppose the request.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Ronald Lyle Kopeska is conditionally reinstated to the practice of law in the State of Minnesota, subject to his successful completion of the professional responsibility portion of the state bar examination by December 7, 2008. Respondent is placed on two years of supervised probation, pursuant to the following terms and conditions:

(a)Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with the probation and shall promptly respond to the Director’s correspondence by its due date. Respondent shall provide to the Director a current mailing address and shall immediately notify the Director of any change of address. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct that may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
(b) Respondent shall abide by the Rules of Professional Conduct.
(c) Respondent shall be supervised by a licensed Minnesota attorney, appointed by the Director to monitor compliance with the terms of this probation. Respondent shall provide to the Director the names of four attorneys who have agreed to be nominated as respondent’s supervisor within two weeks from the date of filing of this order. If, after diligent effort, respondent is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Until a supervisor has signed a consent to supervise, the respondent shall on the first day of each month provide the Director with an inventory of active client files described in paragraph (d) below. Respondent shall make active client files available to the Director upon request.
(d) Respondent shall cooperate fully with the supervisor in his or her efforts to monitor compliance with this probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall submit to the supervisor an inventory of all active client files by the first day of each month during the probation. With respect to each active file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
(e) If respondent, or any entity in which respondent has an ownership interest or serves as an officer or director, intends to enter into a business transaction with one of respondent’s clients, respondent shall notify the Director and submit the terms of the transaction to the Director for review in order to ensure respondent’s compliance with Minn. R. Prof. Conduct 1.8(a).

BY THE COURT:

/s/Alan C. Page Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Carol Lynn O’GARA, a Minnesota Attorney, Registration No. 230790.
    No. A08-42.
    Supreme Court of Minnesota.
    March 20, 2008.
   ORDER

The Director has filed a petition alleging that respondent Carol Lynn O’Gara has committed professional misconduct warranting public discipline, namely, failure to appear for two court appearances in two different client matters, failure to expedite litigation in one of those matters, failure to communicate with her client and diligently and competently pursue the other matter, and failure to comply with the terms of a stipulated private probation and the Director’s efforts to monitor that probation, in violation of Rules 1.1, 1.3, 1.4, 3.2, 3.4(c), 8.1(b), and 8.4(d), Minnesota Rules of Professional Conduct, and Rule 25, Rules on Lawyers Professional Responsibility (RLPR).

Respondent answered the petition, and, by order filed on January 29, 2008, we referred the matter to a referee for findings of fact and recommendations for disposition. Respondent now withdraws her previously-filed answer, admits her conduct violated the Rules of Professional Conduct, and waives her procedural rights under Rule 14, RLPR. Respondent and the Director jointly recommend that the appropriate discipline is an indefinite suspension of at least 90 days, with reinstatement by petition and hearing.

The court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Carol Lynn O’Gara is indefinitely suspended from the practice of law for a minimum of 90 days, commencing 14 days from the date of filing of this order. Respondent may petition for reinstatement pursuant to Rule 18(a), RLPR, not less than 60 days after the effective date of the suspension. Respondent shall pay costs in the amount of $900 pursuant to Rule 24(a), RLPR, and shall comply with Rule 26, RLPR (requiring notice of suspension to clients, opposing counsel, and tribunals). BY THE COURT:

/s/Alan C. Page Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Terry Lynn DJONNE, a Minnesota Attorney, Registration No. 226257.
    No. A08-380.
    Supreme Court of Minnesota.
    March 20, 2008.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging, on the basis of respondent Terry Lynn Djonne’s plea of no contest to theft by swindle over $2,500, that respondent has committed professional misconduct warranting public discipline, namely, violations of Minn. R. Prof. Conduct 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty) and 8.4(c) (conduct involving dishonesty or fraud).

Respondent admits the allegations of the petition, waives his procedural rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and, with the Director, recommends that the appropriate discipline is disbarment.

The court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Terry Lynn Djonne is disbarred from the practice of law. Respondent shall pay $900 in costs and disbursements pursuant to Rule 24, RLPR.

BY THE COURT:

/s/Alan C. Page Associate Justice


author: CROTHERS, Justice. VANDEWALLE, Chief Justice,

text:
    2008 ND 55
    Katherine Marie YOUNG, Plaintiff and Appellee, v. James Charles YOUNG, Defendant and Appellant.
    No. 20070293.
    Supreme Court of North Dakota.
    March 20, 2008.
    Rehearing Denied April 17, 2008.

      Melinda Hanson Weerts, Fargo, ND, for plaintiff and appellee.
    James Charles Young, pro se, Moor-head, MN, defendant and appellant.
   CROTHERS, Justice.

[¶ 1] James Young appeals the district court’s order amending his visitation rights with his minor daughter. Young disputes several of the district court’s factual findings, argues the new visitation schedule is not in his daughter’s best interests and claims the schedule change is not supported by sufficient evidence. We affirm because the district court’s finding of a material change in circumstances and other findings of fact are not clearly erroneous.

I

[¶ 2] Katherine and James Young were divorced in 2002. Katherine and James received joint legal custody of their daughter, with Katherine receiving physical custody and James receiving visitation. The original visitation schedule included alternate weekends from Friday at 6:30 p.m. until Sunday at 5:00 p.m., Father’s Day and alternate major holidays plus two uninterrupted weeks each summer. On February 2, 2005, James filed a motion requesting full custody. Rather than a change of custody, James received expanded visitation, including the previously listed holidays, alternate weekends from Friday at 4:00 p.m. (or after school) until Sunday at 7:00 p.m., Wednesdays from 4:00 p.m. (or after school) until 7:00 p.m. and six weeks each summer subject to Katherine having alternate weekend and Wednesday visitation. Exchanges were to occur at Rainbow Bridge Safe Exchange/Visitation Center. As part of the order, Katherine was found in contempt of court for failing to follow the visitation schedule over the Christmas holidays.

[¶ 3] Katherine moved to amend visitation on August 7, 2007, requesting a change in exchange times to accommodate her work schedule. Katherine’s work schedule had not actually changed; Katherine, a day care provider, had been relying on someone else to make the exchange on her behalf, and that person was no longer available. Katherine claims it is difficult to appear at the designated exchange time because of her work commitments and because she is unable to find anyone to transport her child to and from the exchange location. According to Katherine, court intervention is required because James refuses to cooperate due to his mental health issues. Katherine also requested James’ six weeks of visitation in the summer be modified so each parent would alternate two-week periods. Katherine claimed her daughter had a hard time adjusting to spending so much uninterrupted time away from Katherine. James argued Katherine’s scheduling problem was illusory because their daughter was picked up directly from school. James also alleged other children at Katherine’s house may be affecting their daughter’s moods.

[¶ 4] The district court found Katherine’s failure to find someone to pick up her daughter and her daughter’s behavior problems to be a material change in circumstances. The exchange time was changed from 4:00 p.m. to 6:00 p.m., regardless of the school schedule, and James’ summer visitation was changed to two-week alternating increments.

II

[¶ 5] James appeals the district court’s order alleging, first, that the district court erred in its determination of facts by ignoring problems caused by the new schedule, Katherine’s psychological problems, Katherine’s contradictory arguments and lack of credibility, and by amplifying their daughter’s behavior problems. Second, James alleges there was not a sufficient change in circumstances requiring a change of visitation.

[¶ 6] “A district court’s decision to modify visitation is a finding of fact, which will not be reversed unless clearly erroneous.” Hanson v. Hanson, 2005 ND 82, ¶ 20, 695 N.W.2d 205. “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or if, although there is some evidence to support the finding, on the entire evidence, we are left with a definite and firm conviction a mistake has been made.” Kienzle v. Selensky, 2007 ND 167, ¶ 14, 740 N.W.2d 393. This Court “do[es] not reweigh evidence or reassess witness credibility when the evidence supports the [district] court’s findings.” Id.

A

[¶ 7] James claims the district court overlooked the evidence he presented and relied too heavily on Katherine’s evidence. James indicates four instances where his evidence was incorrectly disfavored.

[¶ 8] First, James claims the scheduling problem found by the district court did not exist because he ordinarily picked his daughter up from school, eliminating the need for Katherine to provide transportation. Furthermore, the district court’s revised visitation schedule creates problems because it limits James’ Wednesday-night visitation to two hours, causing his visits with his daughter to be harried and interfering with his daughter’s bedtime. James also argues the exchange time was needlessly changed on Sundays, when Katherine’s work schedule is not a factor. Katherine’s affidavit to the district court, however, expressed that the 4:00 p.m. exchange time interfered with her work schedule and that she attempted to resolve the scheduling problem with James informally. According to Katherine, the attempts at resolution were futile because James refused to cooperate.

[¶ 9] Second, the district court changed the summer visitation to alternating two-week intervals between parents rather than a single six-week period with James. The district court based this change on the child’s “act[ing] out” and “mouthy” behavior exhibited when she returns to Katherine’s home from a visit with James. James argues the district court failed to consider that the child has not had any behavioral incidents in five months. James argues the district court also failed to consider the difficulties she has in getting along with other children at Katherine’s home, which James believes is the cause of his daughter’s problems. Katherine’s affidavit states the behavioral incidents occurred “in the recent past” and her daughter’s counselor suggested the child’s problems may have originated from the lengthy summer visitation away from Katherine.

[¶ 10] Third, James challenges the district court’s evaluation of Katherine’s credibility. According to James, Katherine’s affidavit and arguments to the district court, including statements about her work schedule, statements about the child’s behavior, statements about interactions with the child’s counselor and statements about James have been proven false by his evidence. Furthermore, James claims the district court did not assign enough weight to Katherine’s performance on a psychological evaluation, in which she tended to, according to the psychologist, “smooth over her faults and weaknesses” and “ap-proaeh[ ] the evaluation with a mixture of openness and guardedness.” The psychologist stated the test results may minimize the degree and extent of her psychological problems. James argues Katherine’s lack of candor with the psychologist is indicative of the dishonesty she exhibited throughout these proceedings.

[¶ 11] Last, James contends Katherine’s affidavit misrepresents statements made by the child’s counselor. James entered into evidence a letter from his daughter’s therapist which he construes as contradicting Katherine’s representation of the counselor’s statements.

[¶ 12] While we are particularly troubled by the reduction of James’ Wednesday visitation, each of his four arguments requires this Court to revisit either the district court’s factual determinations or its assessment of Katherine’s credibility. This Court may not reweigh evidence or reassess credibility when evidence exists to support the district court’s findings. Kienzle, 2007 ND 167, ¶14, 740 N.W.2d 393. “[D]ue regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” N.D.R.Civ.P. 52(a). Katherine’s affidavit, though contested, provides such evidence. Furthermore, the psychologist’s evaluations of both parents and the court documents from all proceedings following the divorce were available for the district court’s review. That evidence provides a factual basis for the district court’s findings, and we are not “left with a definite and firm conviction a mistake has been made.” Kienzle, at ¶ 14.

B

[¶ 13] James argues the district court lacked the authority to change the visitation order because there was not a requisite change in material circumstances. In order to modify visitation, the moving party must establish a “material change of circumstances has occurred since the prior visitation order and it is in the best interests of the child to modify the order.” Ibach v. Zacher, 2006 ND 244, ¶ 8, 724 N.W.2d 165. A “material change in circumstances” sufficient to amend a visitation order is similar to, but is distinct from, a “material change in circumstances” sufficient to change custody. See Helfenstein v. Schutt, 2007 ND 106, ¶ 17, 735 N.W.2d 410. “[M]odification of a visitation decision is governed by the standard set forth in our case law.” Id. at ¶ 16.

[¶ 14] A material change in circumstances is defined as “important new facts that were unknown at the time of the initial custody decree.” Helfenstein, at ¶ 18; see Ibach, at ¶ 10 (mother’s out-of-town move and father’s illness a sufficient material change); Simburger v. Simburger, 2005 ND 139, ¶ 18, 701 N.W.2d 880 (mother’s agreeing to unsupervised visitation with father followed by mother’s unwillingness to allow unsupervised visitation a material change); Reinecke v. Griffeth, 533 N.W.2d 695, 698-99 (N.D.1995) (son’s Attention Deficit Disorder diagnosis coupled with the visitation’s interference with son’s school work is an “implied material change” of circumstances). A change in a parent’s work schedule may also be a change of circumstances material to visitation and has been recognized in other jurisdictions. See Grange v. Grange, 15 Neb.App. 297, 725 N.W.2d 853, 860 (2006) (a significant change in a party’s work schedule may suffice to reopen the subject of visitation); Ahrens v. Conley, 5 Neb.App. 689, 563 N.W.2d 370, 372-73 (1997) (change in work schedule, the child’s increased age and child’s preference to spend more time with parent collectively suffice as a material change of circumstances for visitation).

[¶ 15] Here, the district court found Katherine’s scheduling problems together with the child’s recent behavior to be a material change of circumstances sufficient to modify the visitation order. This Court notes that Katherine’s work schedule did not change; rather, Katherine appears to be maintaining a schedule she has had for some time. The essential change, instead, appears to be Katherine’s loss of assistance from another individual who previously transported the child to the exchange location and Katherine’s failure to find an alternative solution. Even when combined with the child’s recent behavior problems, this change presents a close case to justify a reduction in James’ parenting time. However, we cannot say the district court’s finding of a material change was clearly erroneous, and we do not reexamine the district court’s factual determinations if evidence exists to support its findings. See Corbett v. Corbett, 2001 ND 113, ¶ 9, 628 N.W.2d 312.

Ill

[¶ 16] We affirm the district court’s order because the finding of a material change in circumstances and other findings of fact are not clearly erroneous.

[¶ 17] DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.

VANDEWALLE, Chief Justice,

concurring and dissenting.

[¶ 18] The record in this case reveals that Katherine Young was no longer able to deliver the child to a place of neutral exchange at 4:00 p.m., on Wednesdays, as had been agreed upon by the parties, because “[historically, Katherine was able to find someone, primarily her significant other, to bring Maria to Rainbow Bridge at 4:00 p.m., but that situation changed when he located other employment.” The trial court found this to be a change in circumstances that justified the modification of the judgment in order to begin visitation each Wednesday at 6:00 p.m. rather than 4:00 p.m. However, the record also reveals that, by agreement of the parties, on those Wednesdays on which the child was in school, James Young picked the child up at school. Because he is no longer allowed visitation until 6:00 p.m. he is no longer able to pick the child up at school and his visitation' has been shortened by two hours each Wednesday.

[¶ 19] The reason for the modification is James Young’s insistence on the child being delivered to the neutral place of exchange by 4:00 p.m. even though Katherine Young, who operates a daycare, was not able to do so on some of those Wednesdays on which the child was not in school. I take no issue with that decision. However, on those Wednesdays on which the child is in school, I would modify the judgment to’allow James Young to continue to pick the child up at school as he had in the past. During the summer when the child is not in school and on those Wednesdays on which the child is ill or for other reasons is not in school, the visitation time would begin at 6:00 p.m. rather than 4:00 p.m. Presumably there would be few of those Wednesdays during the school year. To not allow James Young to continue to pick up the child at school on those Wednesdays when she is in school seems to be a punishment for his intransigence rather than a decision furthering the best interests of the child.

[¶ 20] GERALD W. VANDEWALLE, C.J., and DALE V. SANDSTROM, J, concur.


author:
VANDE WALLE, Chief Justice. MARING, Justice,
      SANDSTROM, Justice,

text:
    2008 ND 47
    Gaylen HUWE, Claimant and Appellant v. WORKFORCE SAFETY AND INSURANCE, Appellee and G.L. Trucking & Rental, Respondent.
    No. 20070067.
    Supreme Court of North Dakota.
    March 20, 2008.

      Kevin J. Chapman, Chapman Law Office, Williston, N.D., for claimant and appellant.
    Lawrence E. King, Special Assistant Attorney General, Bismarck, N.D., for appel-lee.
   VANDE WALLE, Chief Justice.

[¶ 1] Gaylen Huwe appeals from a district court judgment affirming an order of Workforce Safety and Insurance (“WSI”) denying his reapplication for disability benefits. We reverse and remand to WSI for further consideration.

I

[¶ 2] Huwe suffered a serious work-related injury to his head, neck, back, jaw, and teeth while employed as a truck driver in December 1992. WSI accepted his claim and paid medical and disability benefits. In January 1995, Huwe accepted a position with the State of North Dakota as a motor carrier inspector, and his disability benefits were terminated.

[¶ 3] Huwe contends that he began experiencing increased headaches and back and neck pain in 2003. In September 2003, Huwe had back surgery to fuse discs at the C4-C7 levels. There is conflicting evidence in the record regarding the relative success of this surgery. Huwe contends he continued to suffer debilitating pain and migraine headaches after the surgery, as evidenced by his frequent doctor and emergency room visits after the surgery. Contemporaneous medical records indicate Huwe reported in November 2003, two months after the surgery, that he was doing “very well” and the headaches were “completely gone,” but that he continued to suffer “some vague neck pain.” At his three month follow-up visit in December 2003, Huwe stated he was “feeling better” and had returned to work, and he was advised he could return to his “normal daily activities.”

[¶ 4] In February 2004, Huwe entered a residential treatment program for alcoholism and substance abuse. Huwe never returned to his job with the State after that date. Huwe eventually tendered his resignation from his position with the State effective July 31, 2004, contending he was no longer physically capable of performing the duties of the job.

[¶ 5] While still in treatment for alcoholism and substance abuse, Huwe reapplied for disability benefits on June 9, 2004, alleging that his medical condition had significantly worsened in September 2003 and he was no longer able to work as a motor carrier inspector. WSI denied Huwe’s reapplication, noting that the medical evidence did not indicate Huwe had sustained a significant change in his com-pensable medical condition, that the medical records indicated he was physically able to return to work in light to medium positions, and that Huwe had been taken off work by his doctors because of addiction and medical conditions unrelated to the work injury.

[¶ 6] Huwe requested a formal hearing before an administrative law judge (“ALJ”). The ALJ issued recommended findings of fact, conclusions of law, and order, finding that Huwe had not sustained a significant change in his compensable medical condition at the time of reapplieation for disability benefits and had not sustained an actual wage loss attributable to a significant change in his medical condition. WSI adopted the findings, conclusions, and order of the ALJ as its final order and denied Huwe’s reapplication for disability benefits.

[¶ 7] Huwe appealed to the district court, which affirmed WSI’s order. Huwe has appealed from the district court judgment affirming WSI’s order, contending the greater weight of the evidence proved he had sustained a significant change in his compensable medical condition and had shown an actual wage loss attributable to the change in his medical condition.

II

[¶ 8] Courts exercise only a limited review in appeals from administrative agency decisions under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Fettig v. Workforce Safety & Ins., 2007 ND 23, ¶ 9, 728 N.W.2d 301; Tverberg v. Workforce Safety & Ins., 2006 ND 229, ¶ 7, 723 N.W.2d 676. Under N.D.C.C. § 28-32-46, the district court must affirm an administrative agency order unless:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

[¶ 9] On appeal from the district court’s decision in an administrative appeal, we review the agency order in the same manner. Tverberg, 2006 ND 229, ¶ 8, 723 N.W.2d 676. We exercise restraint in deciding whether the agency’s findings of fact are supported by a preponderance of the evidence, and we do not make independent findings or substitute our judgment for that of the agency. Fettig, 2007 ND 23, ¶ 10, 728 N.W.2d 301; Tverberg, at ¶ 8. In reviewing an agency’s findings of fact, we determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record. Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979); Fettig, at ¶ 10; Tverberg, at ¶ 8. However, an agency’s decision on questions of law are fully reviewable. Opp v. Ward County Social Services Bd., 2002 ND 45, ¶ 8, 640 N.W.2d 704.

[¶ 10] WSI has the responsibility to weigh the credibility of medical evidence and resolve conflicting medical opinions. Thompson v. Workforce Safety & Ins., 2006 ND 69, ¶ 11, 712 N.W.2d 309; Barnes v. Workforce Safety & Ins., 2003 ND 141, ¶ 20, 668 N.W.2d 290; Negaard-Cooley v. North Dakota Workers Comp. Bureau, 2000 ND 122, ¶ 18, 611 N.W.2d 898. When confronted with a classic “bat-tie of the experts,” a fact-finder may rely upon either party’s expert witness. Elshaug v. Workforce Safety & Ins., 2003 ND 177, ¶ 11, 671 N.W.2d 784. Although WSI may resolve conflicts between medical opinions, the authority to reject medical evidence selectively does not permit WSI to pick and choose in an unreasoned manner. Id.; Negaard-Cooley, at ¶ 19. WSI must consider the entire record, clarify inconsistencies, and adequately explain its reasons for disregarding medical evidence favorable to the claimant. Barnes, at ¶ 20; Negaard-Cooley, at ¶ 18.

Ill

[¶ 11] A claimant seeking benefits from the workers compensation fund has the burden of proving by a preponderance of the evidence that he is entitled to benefits. N.D.C.C. § 65-01-11; Aga v. Workforce Safety & Ins., 2006 ND 254, ¶ 13, 725 N.W.2d 204; Bachmeier v. North Dakota Workers Comp. Bureau, 2003 ND 63, ¶ 11, 660 N.W.2d 217. When a claimant’s disability benefits have been discontinued and the claimant subsequently sustains a significant change in medical condition that causes an additional wage loss, the claimant may file a reapplication seeking further disability benefits. Aga, at ¶ 13; Bachmeier, at ¶ 11. Reapplication for disability benefits is governed by N.D.C.C. § 65-05-08(1):

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

A claimant reapplying for disability benefits under N.D.C.C. § 65-05-08(1) bears the burden of showing a significant change in his compensable medical condition and an actual wage loss caused by the significant change in his compensable medical condition. Aga, at ¶ 13; Sorlie v. Workforce Safety & Ins., 2005 ND 83, ¶ 15, 695 N.W.2d 453.

IV

[¶ 12] The parties agree that this is a complex case with “voluminous” medical records. Huwe has psychological and addiction problems, some predating his work injury in 1992, that factor into his current disability status. Huwe has not argued that his psychological and addiction problems stem from his work injury, and has disavowed any reliance upon these psychological components. Rather, Huwe argues that there is “overwhelming” medical proof that he suffered a significant change in his physical medical condition warranting reinstatement of disability benefits under N.D.C.C. § 65-05-08(1).

[¶ 13] In support of its conclusion that Huwe failed to prove he had suffered a significant change in his compensable medical condition or an actual wage loss attributable to the change, WSI relies primarily upon the testimony of Dr. Cooper, WSI’s medical director. Dr. Cooper testified at the administrative hearing that, in his opinion, Huwe had not suffered a significant change in his compensable medical condition and any inability to work was caused by other non-work related factors. Dr. Cooper described some of Huwe’s preexisting conditions that were unrelated to the 1992 work injury:

Q. Okay. Can you describe to me your understanding of — of the — what I’ll generally categorize as nonwork-related conditions, and can you describe those for me?
A. Yes. Those conditions consist of alcohol dependence, tobacco use disorder, anxiety, depression, and migraine headaches, and a chemical dependency.
Q. And can you tell from your review of the records how long those conditions have been in existence?
A. There is evidence of it going back for 20 years when Mr. Huwe was treated at Fort Meade VA for chem — for chemical dependency.
Q. Let me — let me — before I finish that, let me ask you: What is his current diagnosis?
A. The current diagnosis is chronic pain syndrome and anxiety, depression, migraine headaches. There’s also a history of coronary artery disease, hypertension, high cholesterol, and there is a past history of peripheral vascular disease.

When asked whether the 1992 work injury caused Huwe’s chronic pain syndrome, Dr. Cooper responded:

[T]he cause of the current chronic pain syndrome or pain disorder is not the work injury. It is due to the preexisting factors which allowed the — for the development of chronic pain.

[¶ 14] Dr. Cooper was expressly asked whether Huwe had suffered a significant change in his compensable medical condition:

Q. Okay. Let me talk about Mr. Huwe’s reapplication and — and his assertion that he’s had a significant change in his medical condition since on or around September of 2003 with the cervical fusion.
Looking at his medical records from that date forward, do you see a significant change in his underlying medical condition?
A. No, apart from the fact that he had had the surgery.
Q. Okay.
A. There was no other change in his condition.
Q. Okay. Um—
A. I’m sorry.
Q. And, in deed, if — if after that it appeared initially to — well, no, let me— let me just ask it this way: Is there any objective medical evidence to establish a significant change in Mr. Huwe’s medical condition after that surgery, except for the fact that there was a surgery, which I obviously understand?
A. There was no objective evidence for any change in his condition.

[¶ 15] Dr. Cooper also testified that Huwe’s hospitalization in February 2004, the last time he worked, was unrelated to his work injury and was caused by depression and alcohol and substance dependence. When asked his opinion of Huwe’s ability to perform work, Dr. Cooper testified:

Though Mr. Huwe had been working in the fall of 2003 and then there were a series of events where he was having significant psychosocial difficulties, and then following those events, including, from my understanding, a condition called bacterial endocarditis, he did not return to work. So his condition in July 2004 may have been different from the condition in the fall of 2003 inasmuch as he may not have been physically capable of doing that work, but the reason for that was because of these other non-work-related conditions supervening.
BY MR. KING:
Q. And those other nonwork-related conditions were which, again?
A. The alcohol, the depression. The bacterial endocarditis may have also played a part in the deconditioning process so that his overall condition had declined to the point where he was weak and he’d lost range of motion in his extremities, but that would not have been due to his work injury in nineteen ninety — 1992. That would have been due to these other factors taking ahold of him and — and significantly changing his overall condition.

[¶ 16] Huwe contends that Dr. Cooper’s medical opinion is outweighed by other “overwhelming” medical evidence in the record. Huwe relies most prominently on the opinion of Dr. Zhang, who first examined Huwe on June 8, 2004. Huwe alleged Dr. Zhang advised him at that time he should not go back to work. Huwe filed his reapplication for disability benefits the next day, June 9, 2004, in reliance upon Dr. Zhang’s opinion.

[¶ 17] Although WSI acknowledges that Dr. Zhang believed Huwe was not able to return to work at that time, WSI argues that Dr. Zhang’s opinion was not based upon a significant change in Huwe’s compensable medical condition. Dr. Zhang’s notes from the June 8, 2004, examination indicate he was recommending Huwe remain off work until he had completed addiction treatment and a pain management program. Dr. Zhang did not indicate his recommendation was based upon any change in Huwe’s compensable medical condition.

[¶ 18] In written responses, dated July 2, 2004, to questions from a WSI claims analyst, Dr. Zhang further clarified that Huwe’s chronic pain was psychologically based, Huwe was physically able to perform light to medium duty work, and there were no objective medical findings to qualify Huwe’s being off work:

Question # 1: What is Mr. Huwe’s current diagnosis?
Answer: The current diagnoses are:
1. Chronic pain syndrome.
2. Substance abuse including alcohol and narcotic.
3. History of C4-7 spinal fusion failed to improve symptom.
4. Osteoarthritis of both hands. Question # 2: What is the etiology of his current pain complaint in his neck and lower back? Please explain.
Answer: The etiology for all those years of pain complaint of the neck and back is mostly psychological. This is a chronic pain condition which has been going on for many years and the history of failed repeated physical treatment including a very targeted injection and even surgery have failed to improve his pain condition and his pain behavior and ongoing substance abuse including alcohol and narcotic further prove that this pain condition is mostly a mental condition. Question # 3: Mr. Huwe has a light-duty-job release. Does this correspond with his current employment? Please explain.
Answer: I think Mr. Huwe physically is fully capable of doing light-duty job at least, even medium duty is no problem for his physical, but his mental condition may limit his ability due to his willingness and substance abuse behavior. At this time, I do not have his current employment description or any information regarding his current employment so I cannot have any comment on this part.
Question # 4: Mr. Huwe has been taken off work. What are the objective medical findings that are disabling him from his current employment?
Answer: No, there is no objective medical finding to qualify him being off work. The only condition which persuaded doctors to give him off work is his pain complaint and behavior as I understand.

[¶ 19] Huwe relies upon the opinions of Dr. Olson and Dr. Lwin to support his contention he was physically unable to perform his job as a motor carrier inspector. In support of this contention, Huwe draws our attention to Dr. Olson’s and Dr. Lwin’s written responses to questions from Huwe’s attorney in May 2005. Each doctor was asked, on the basis of the results of a functional capacities examination performed after Huwe had reapplied for benefits, whether Huwe was capable of performing his job as a motor carrier inspector. Dr. Olson responded “no — safety issues” and Dr. Lwin responded “No.” Neither doctor was asked to clarify or expound upon their cursory answers, and there was no attempt to tie their responses to a change in Huwe’s compensable medical condition.

[¶ 20] The ALJ, and subsequently WSI, concluded that Huwe had failed to carry his burden of proving a significant change in his compensable medical condition and a resulting actual wage loss. In so doing, the ALJ and WSI explained and resolved the conflicting medical opinions:

7. The preponderance (greater weight) of the evidence indicates that Gaylen Huwe did not sustain a significant change in his compensable medical condition at the time of his reapplication for disability benefits on June 11, 2004. The medical records are consistent with Huwe’s testimony that his pain increased as the physical demands of his job increased after September 11, 2001, and that his resumption of drinking is associated with the increased job demands. The records shed little light, however, on the relationship between the many different factors that contributed to Huwe’s increased pain symptoms and his com-pensable medical condition or conditions. Huwe had osteoarthritis in his hands and other areas. His pneumonia and bacterial endocarditis could have affected his overall stamina. He had other heart-related problems. The radiological studies in evidence and the physical examinations by specialists document reported pain levels not commensurate with the objective medical findings. Records from the Fargo VA suggest that other non-work-related accidents from many years ago may have been a factor. Posttraumatic stress disorder may even be a factor. Many of the medical records suggest a strong psychological component to Huwe’s chronic pain, long before his job became more physically demanding. That psychological component may well have been caused at least in part by his severe work-related injury but the record does not adequately address that possibility. Finally, neither Dr. Olson’s nor Dr. Lwin’s responses in May 2005 address the issue of a substantial change in Huwe’s compensable medical condition.
8. The preponderance (greater weight) of the evidence indicates that Gaylen Huwe did not sustain an actual wage loss. Huwe concedes he was still employed when he filed his reapplication but argues Dr. Zhang took him off work at that time. Dr. Zhang did not take Huwe off work because of any significant change in the compensable medical condition but because he thought Huwe needed to complete his residential aleo-hoi treatment program and a chronic pain management program first. Dr. Zhang had no knowledge of the physical demands of Huwe’s job but he believed Huwe had a “disability mentality” that made any work problematic. Huwe asserts that he nevertheless did sustain an actual wage loss after July 31, 2004, because he resigned only when he believed his pain would prevent him from ever doing his job, a belief he validated by the August 2004 FCE and the responses of Dr. Olson and Dr. Lwin.
A doctor’s opinion can, under limited circumstances, constitute objective medical evidence. But all medical evidence, even physician opinions, must be examined and credibility must be assessed in the process of weighing the medical evidence. See generally, Myhre v. N.D. Workers Compensation Bureau, 2002 ND 186, ¶¶ 15, 24, 25, 653 N.W.2d 705. In that regard, WSI’s arguments concerning the weight to be accorded Dr. Olson’s and Dr. Lwin’s opinions are more persuasive than Huwe’s arguments.

But, the record before us contains extensive medical records from Trinity Community Clinic concerning the pain medications Huwe was receiving for his condition. Although the findings of the ALJ discuss Huwe’s pain and depression they do not refer to these records.

[¶ 21] As we observe in ¶ 11, the claimant is required to establish that he suffered a significant change in his compensable medical condition at the time he was employed and earning wages, and that the change in his medical condition caused an actual loss of those wages. Bachmeier v. N.D. Workers Comp. Bureau, 2003 ND 63, ¶ 13, 660 N.W.2d 217; Gronfur v. N.D. Workers Comp. Fund, 2003 ND 42, ¶¶ 11-12, 658 N.W.2d 337; see also Lesmeister v. N.D. Workers Comp. Bureau, 2003 ND 60, ¶ 22, 659 N.W.2d 350; and Beckler v. Workforce Safety and Ins., 2005 ND 33, ¶ 9, 692 N.W.2d 483; N.D.C.C. § 65-05-08(1). The change in medical condition does not need to cause a total loss of wages, but can cause only a partial loss of wages. Beckler, at ¶ 10. A claimant must prove by a preponderance of the evidence that the medical condition for which he seeks benefits is causally related to a work injury. Swenson v. Workforce Safety and Ins., 2007 ND 149, ¶ 24, 738 N.W.2d 892. “To establish a causal connection, a claimant must demonstrate that his employment was a substantial contributing factor to the injury, not that [the] employment was the sole cause of the injury.” Id.

[¶ 22] The record does support that Huwe self-treated with alcohol as found by the ALJ. There was also concern he was addicted to Lorcet and had withdrawal symptoms when he ran out or it was decreased. The ALJ found Huwe was admitted to the emergency room at the hospital in Williston on “numerous” occasions.

[¶ 23] At both the administrative and the district court hearings, Huwe submitted evidence and argued he suffered chronic pain and increased pain as a result of his surgery and the greater physical demands of his job. Dr. Zhang was of the opinion Huwe was suffering from severe chronic pain syndrome, which needed to be treated before he returned to any employment. Huwe’s work-related injury does not need to be the sole cause of his medical condition. Further, the employer takes the employee as it finds him. Bruns v. ND Workers Comp. Bureau, 1999 ND 116, ¶ 16 n. 2, 595 N.W.2d 298. The fact that Huwe suffered from an addictive personality does not foreclose his recovery of disability benefits. In addition, Dr. Zhang was of the opinion Huwe had a drug abuse problem and should be in a drug rehabilitation program. The evidence suggests Huwe’s narcotic dependency was a result of his medications for his neck and back pain and severe headaches.

[¶ 24] Although Huwe may not have relied on his addiction and psychological problems to support his claim, there is nevertheless considerable evidence in the record to indicate that those problems which stem from and are related to the injury are in great part the reason he is unable to work. If his addiction problems and psychologically based chronic pain syndrome are directly related to Huwe’s work injury, they may support an award as a “significant change in the compensa-ble medical condition” under N.D.C.C. § 65-05-08(1). To hold that addiction because of medically prescribed drugs to ease the pain of the work-related injury cannot result in a significant change in the compensable medical condition of the claimant is too narrow a reading of that provision and too narrow a reading of Dr. Zhang’s observation that Huwe was physically capable of doing light or medium duty work. If Huwe’s body structure is physically capable of the work but he is unable to work as a result of addiction and psychological problems, including chronic pain syndrome, attributable to his work injury, he has sustained a significant change in his compensable medical condition.

[¶ 25] Nor do the ALJ’s findings necessarily indicate Huwe could not be awarded benefits if his inability to work is due to pain medication and resulting depression. Rather, the findings appear to be premised on the fact the records “suggest that other non-work related accidents from many years ago may have been a factor.” (Emphasis supplied). The findings thus recognize the psychological component to Huwe’s pain but again observe the records “suggest” it existed “long before his job became physically demanding” and conclude that while the “psychological component may well have been caused at least in part by his severe work-related injury ... the record does not adequately address that possibility.”

[¶ 26] These findings are imprecise and equivocal on the issue of whether or not the work injury and the resulting pain and depression are a substantial contributing factor in determining whether or not Huwe suffered a significant change in his compensable medical condition or an actual wage loss attributable to the change. That may be due in large part to Huwe’s lack of reliance on those factors. While Huwe may not have relied on his addiction and psychologically based chronic pain syndrome, it is what the record reflects and not what Huwe relied upon which governs the decision of WSI in its determination and this Court in its appellate review under N.D.C.C. § 28-32-46.

Y

[¶ 27] The findings of fact made by the agency on the issue of whether or not the pain medication and resulting depression from his work-related injuries substantially contributed to a significant change in Huwe’s medical condition or an actual wage loss attributable to the change in medical condition do not sufficiently address the evidence presented to the agency. We reverse and remand to WSI for consideration and further findings on these issues under N.D.C.C. § 28-32-46(7).

[¶ 28] CAROL RONNING KAPSNER and MARY MUEHLEN MARING, JJ„ concur.

MARING, Justice,

concurring.

[¶ 29] I respectfully concur. After a thorough review of the medical evidence in this record, I agree with the majority that the administrative law judge (“ALJ”) did not sufficiently address the evidence presented by Huwe. I write only to further point out the medical evidence not addressed in the ALJ’s decision.

[¶ 30] The record indicates that after his work injury Huwe continued to have severe headaches, which were thought to be “vascular and muscle contraction type headaches secondary to neck injury in December of 1992” according to the notes at Trinity Medical Center in 1998. It was also noted at that time that the patient was narcotic dependent. Huwe was experiencing numbness and tingling and weakness in both arms. The diagnostic considerations were cervical radiculopathy, thoracic outlet syndrome or severe musculoskeletal strain on neck and shoulders. He received several epidural injections.

[¶ 31] In 1999, Dr. Melissa Ray, a doctor of osteopathy, conducted a permanent partial impairment evaluation of Huwe at the request of WSI. His current complaints were “headaches from the posterior occipital region over the top of his head into the frontal skull region.” He reported that his pain radiates “through the eyes.” He also reported pain over the TMJs bilaterally, “posterior cervical spinal pain radiating from the superior aspect of the posterior neck medially to the inferior scapular regions,” and “left lower back pain over the L5-S1 region, more on the left.” Dr. Ray noted: “the patient reports depression due to his physical limitations and pain.” Huwe reported to Dr. Ray that his symptoms had essentially remained the same over the past three years. He was taking aspirin and Lorcet. Dr. Ray noted Huwe was a recovering alcoholic and that his last drink was in 1981.

[¶ 32] Dr. Ray concluded Huwe suffered a 25 percent whole person impairment for his cervical spine injury, a 5 percent whole person impairment for his lumbar spine injury and a 12 percent whole person impairment for the TMJ, teeth problems and associated headaches. She found that these combined to equate to a 37 percent whole person impairment utilizing the combined values chart of the AlMA Guides to the Evaluation of Permanent Impairment.

[¶ 33] On November 16, 1999, Huwe was admitted to Mercy Medical Center by Dr. Mark Olson. Dr. Olson noted that Huwe had a “history of Lorcet and other narcotic abuse from an occupational accident.” Huwe had used up his prescription of Lorcet and was having withdrawal symptoms from Lorcet. Dr. Olson’s impression was: “1. Narcotic withdrawal. 2. Chronic pain due to occupational accident. 3. Recovering alcoholic.”

[¶ 34] In 2000, Huwe discussed with Dr. Olson and Dr. Moore, an orthopedic surgeon about undergoing a “provocative discography.” Dr. Michael Moore told Huwe he could not do that without Huwe reducing his Lorcet tablets to no more than three a day.

[¶ 35] The ALJ found that a cervical discography was performed on February 1, 2001, and that Dr. Moore recommended an anterior discectomy and fusion at C4-C5 and C5-C6 based on the amount of degeneration. Huwe chose not to undergo surgery at that time.

[¶ 36] On June 17, 2003, Huwe attended physical therapy at Mercy Wellness Center. The physical therapist noted significant deficits in his cervical range of motion.

[¶ 37] On July 3, 2003, Huwe went to see Dr. Moore, an orthopedic surgeon, again. Dr. Moore noted he had seen Huwe in 2001 and “[w]e had discussed surgery with him previously in 2001, but he decided to hold off on that until things got worse and he feels like he is at that point now.” Dr. Moore noted that the “[pjatient uses no alcohol.”

[¶38] On August 8, 2003, Dr. Moore reviewed Huwe’s MRI and found no significant changes from his previous MRI study. He noted a history of difficulty of swallowing, ringing in ears, limited neck motion, neck pain, arthritis, fracture, frequent headaches, numbness in hands or feet, depression and anxiety. Dr. Moore recommended an anterior cervical discec-tomy and fusion C4 to C7. In 2001, Dr. Moore recommended fusion only from C4 to C6.

[¶ 39] Dr. Moore performed the surgery on September 2, 2003. Dr. Moore noted under “INDICATIONS: The patient is a 52-year-old gentleman with a long-standing history of neck pain and shoulder pain related to a work-related injury. Conservative treatment has been tried for a protracted period of time and been unsuccessful. Because of this the patient is judged to be a suitable candidate for the above-noted procedure.” Dr. Moore carried out discectomies at each level of C4 to C7. The osteophytes were removed and the anterior/inferior lip of the superior vertebral body margin was removed. An Atlantis plate was then “opposed to the spine and bent into the increased lordosis which was demanded by the patient’s alignment.”

[¶ 40] On September 17, 2003, Huwe was seen for follow-up after his neck surgery. Huwe reported he had an 8 out of 10 pain in his anterior neck and chest. He reported his headaches were improved. Dr. Moore’s nurse practitioner noted Huwe was to continue to protect his neck, but may wean himself out of his cervical collar. On October 1, 2003, Huwe returned for postoperative care to Dr. Moore’s office. Huwe reported he was getting better, but his pain was still a 6 on a scale of 10. He denied use of alcohol. He was told to discontinue use of his cervical collar, but to continue to protect his neck and avoid lifting greater than 20 pounds. He was told they wanted to wean him off of Vicodin and replace it with Ultracet.

[¶ 41] Dr. Moore’s nurse practitioner saw Huwe again on November 4, 2003, and December 5, 2003, when she said he could return to his normal daily activities.

[¶ 42] In October 2003, Huwe continued to see his physician, Dr. Mark Olson, and his nurse practitioner at Trinity Community Clinic. On October 21, 2003, he presented with complaints of increased neck pain and depression. The record notes: “He is having tears rolling down his face as he is talking to me.” The nurse practitioner wrote: “I am quite concerned about his mental state and I am going to also place him on some Wellbutrin.... Obvious inadequate pain control at this time.... Would like him to return to Bone & Joint Clinic in Bismarck for follow up cares as his pain has increased.” He was prescribed Oxycodone and Naproxen together with the Wellbutrin.

[¶ 43] On November 17, 2003, Huwe was again seen at Trinity Community Clinic. At that time, the record states: “Have discussed with him at some length that his physical dependence does not necessarily mean that he has an addiction to this [Oxycodone] although he does, because of his alcoholism, have an addictive type personality and he is agreeable with this course of action and will follow quite closely.” Huwe was switched to some OxyCon-tin with Oxycodone for breakthrough. He also was going to receive some epidurals. He was seen again on November 26, 2003, and it was noted he was doing much better with the OxyContin and Oxycodone.

[¶ 44] On December 10, 2003, the medical records of Trinity Community Clinic indicate he had relief from the epidural and is somewhat better with the OxyCon-tin and Oxycodone. The nurse practitioner again notes “I think at this point I am worried about some depression. He was expecting better results from having this neck fusion surgery and have tried to explain to him it still can take up to three months before any pain relief from the fusion can be present.”

[¶ 45] On December 23, 2003, the Trinity Community Clinic records indicate Huwe admitted he got drunk over the weekend. He was seen and evaluated at Mercy Recovery and was to start outpatient therapy as soon as possible. The assessment was “chronic neck pain, status post cervical fusion.”

[¶ 46] Huwe was seen on January 9, 2004, at Trinity Community Clinic to renew his pain medications. The notes indicate he was to be seen at the pain clinic in Bismarck for regulation and pain management. On January 21, 2004, the notes state: “He continues to have an overlap of facet mediated pain and left sciatic pain. Degenerative changes to the low back.”

[¶ 47] None of the foregoing medical records from Trinity Community Clinic are mentioned by the ALJ. The ALJ states that Huwe could not explain why the nurse practitioner’s notes for Dr. Moore reflected a “more rosey picture.” The fact that Huwe was receiving heavy pain medications in the form of OxyContin and Oxy-codone from Dr. Mark Olson of Trinity Community Clinic might explain it, but the ALJ never mentions the treatment Huwe was receiving, including epidurals following his surgery.

[¶ 48] The records indicate that after the surgery, he had an emergency room visit in Williston on October 19, 2003, with complaints of neck pain after the fusion; on February 2, 2004, for a narcotic overdose; and on May 13, 2004, with complaints of headaches and alcohol abuse.

[¶ 49] On February 2, 2004, Dr. Mark Olson noted he has “frequent visits to the emergency room because of the pain in his neck and back secondary to his accident that occurred in 1992.” Dr. Olson wrote: “He admits that he is taking more alcohol and narcotics than prescribed. He states he has to do that to control the pain.” Dr. Olson’s impression: “[N]arcotie overdose likely accidental,” and “[c]hronic pain.” The plan was: “1. Given his history of abuse in the past, I think we are going to need to get Mercy Recovery Center and Dr. Greiner involved. 2. I think my job tonight is going to be getting him into the hospital and start weaning him off his narcotics.”

[¶ 50] The ALJ found that Huwe’s last day of physical presence at his job as a motor carrier inspector was February 4, 2004. Huwe then went on sick leave to attend a residential treatment program for his alcohol and narcotic over use at Mercy Recovery Center.

[¶ 51] On February 16, 2004, Huwe saw Dr. Mark Olson with slurred speech, dizziness, and confusion. Dr. Olson’s impression was “[mjedication side effect.”

[¶ 52] On March 3, 2004, Dr. Olson noted Huwe had been hospitalized with a very significant pneumonia and was also found to have acute bacterial endocarditis. Huwe was still under treatment for these conditions. On March 17, 2004, he was put back in the hospital.

[¶ 53] On April 7, 2004, Dr. Olson saw Huwe at the Trinity Community Clinic. Huwe came in regarding his pain. Dr. Olson wrote in his notes:

He was down and saw Carol Miller who did some trigger point injections. He thought there was some relief for a short period of time, but the pain has returned at this point in his neck. He is wondering if he should get back on some type of narcotic. Carol Miller did mention in her note that the symptoms may be facet mediated pain and is thinking that facet injections may be worthwhile.

Dr. Olson’s plan was to set Huwe up in Bismarck for facet injections.

[¶ 54] On April 21, 2004, Huwe saw Dr. Olson because his wife was concerned he was suicidal. Dr. Olson wrote:

Apparently, two days ago he started drinking again. He had been doing very well, but two days ago something changed. He is blaming it on the pain, but he did not do anything different in his activities that would exacerbate the pain. He does have a history of chronic pain and history of depression in the past.

Dr. Olson referred him to Dr. Campos so he could get admitted into the inpatient unit.

[¶ 55] On May 5, 2004, Huwe was rechecked by Dr. Olson at Trinity Community Clinic for his neck and back pain. Dr. Olson noted: “He sits in his chair with a very flat affect. He is obviously very frustrated if not angry about the situation that he is in. He at one point expresses understanding of being off the narcotics and the next he is requesting there [sic] return.” Dr. Olson planned to set Huwe up with Dr. Zhang to get a second opinion from a physiatrist to see if there is anything further that can be done to help with his back pain. Dr. Olson wrote: “It should be noted that I did not clear him to go back to work. We will wait until after Dr. Zhang has had a chance to review things.”

[¶ 56] On May 13, 2004, Huwe went to the emergency room of Mercy Medical Center complaining of chronic head and neck pain and requesting treatment for acute and chronic alcohol abuse.

[¶ 57] On May 19, 2004, Huwe saw Dr. Moore, the orthopedic surgeon. Huwe reported he continued to have neck pain, occipital headaches, frontal headaches, as well as lower back pain. Huwe told Dr. Moore he feels like he is about 10 percent better from his cervical fusion. Dr. Moore told him he did not have anything further to offer him and that he would refer him to Dr. Killen for long term pain management and for any disability and impairment issues.

[¶ 58] Huwe went to Dr. Olson at Trinity Community Clinic for his chronic neck and back pain on May 28, 2004. The notes indicate: “At this time he does look quite miserable. He has little motion to his neck since his fusion. He has no smell of alcohol at this time.” The nurse practitioner explained she would not give him narcotics.

[¶ 59] The evidence in this record indicates that Huwe continued to suffer severe pain in his neck and severe headaches after his surgical fusion of C4-C7 in September 2003. The record repeatedly states Huwe had become narcotic dependent as a result of his pain and needed to be taken off narcotics. Dr. Zhang was of the opinion Huwe should undergo drug rehabilitation as well as a chronic pain management program. Without the availability of narcotics to control his pain, Huwe had begun to drink more heavily and his depression worsened to the point of suicidal ideation.

[¶ 60] After a thorough review of the record of this case, I agree with the majority that the findings of fact of the ALJ do not sufficiently address the medical evidence and the issue of whether Huwe sustained a significant change in his compen-sable medical condition and I agree the matter must be reversed and remanded.

[¶ 61] Mary Muehlen Maring

SANDSTROM, Justice,

dissenting.

[¶ 62] Because I believe the majority has exceeded the scope of appellate review permitted under N.D.C.C. §§ 28-32-46 and 28-32-49,1 respectfully dissent.

[¶ 63] The majority concludes WSI’s findings of fact did not sufficiently address whether Huwe’s psychological and addiction problems were a substantial contributing factor to a change in his compensable medical condition. As the majority concedes, however, not only did Huwe not raise or rely upon this argument to support his claim for benefits, he expressly disavowed any such reliance. The majority concludes, at ¶ 26, that the decision of WSI and this Court must be governed by “what the record reflects and not what Huwe relied upon.” As this Court has noted, however, “judges are not ferrets, obligated to engage in unassisted searches of the record for evidence to support a [party’s] position.” Vandeberg v. State, 2003 ND 71, ¶ 7, 660 N.W.2d 568; see also Linrud v. Linrud, 552 N.W.2d 342, 345 (N.D.1996). Administrative agencies and ALJs are not ferrets, either. Parties have the duty to raise appropriate issues, delineate their arguments, and draw the court’s or agency’s attention to supporting evidence in the record. When a party has failed to raise an issue, and particularly when the party has expressly disavowed the issue, a court exceeds the appropriate scope of appellate review when it relies upon that issue to reverse the decision of an administrative agency.

[¶ 64] In this case, the majority has gone one step further. Having determined that the ALJ and WSI should have considered whether Huwe’s psychological and addiction problems were a substantial contributing cause to a change in his com-pensable medical condition, the majority then reaches medical conclusions not drawn by any of the numerous medical experts who provided opinions in this case. Not a single doctor or health care provider indicated Huwe’s psychological or addiction problems were caused by or related to the 1992 work injury. Yet, at ¶¶ 23-24, the majority draws the conclusions that “[t]he evidence suggests Huwe’s narcotic dependency was a result of his medications for his neck and back pain and severe headaches” and that there was “considerable evidence” Huwe’s addiction and psychological problems “stem from and are related to the injury.” It is for the medical experts, not the courts, to “connect the dots” and determine whether a claimant’s psychological and addiction problems are the “result of’ or “stem from” a prior work injury. This record is devoid of any expert opinion making that connection.

[¶ 65] There was, of course, one medical expert who offered an opinion on the connection between Huwe’s psychological and addiction problems and his work injury. Dr. Cooper testified that Huwe’s psychologically based chronic pain syndrome was not caused by his work injury and that Huwe’s addiction and psychological problems were “nonwork-related.” The majority does not address Dr. Cooper’s testimony when it concludes WSI did not adequately address the evidence in the record about the causal connection between Huwe’s psychological and addiction problems and his prior work injury.

[¶ 66] The ALJ and WSI recognized that the psychological component of Huwe’s chronic pain may have been caused in part by his work injury, but found “the record does not adequately address that possibility.” As a claimant seeking reinstatement of disability benefits, Huwe had the burden of presenting evidence demonstrating a significant change in his com-pensable medical condition and a resulting wage loss. Aga v. Workforce Safety & Ins., 2006 ND 254, ¶ 13, 725 N.W.2d 204; Sorlie v. Workforce Safety & Ins., 2005 ND 83, ¶ 15, 695 N.W.2d 453. The ALJ and WSI correctly concluded that he failed to do so.

[¶ 67] Although acknowledging at ¶ 8 that “[cjourts exercise only a limited review in appeals from administrative agency decisions,” the majority has effectively usurped the function of claimant’s counsel by raising and deciding an issue expressly disavowed by counsel, usurped the function of the expert medical witnesses by drawing its own conclusions from the medical evidence, and usurped the function of the ALJ and the agency by ignoring the evidence presented by the one medical expert who actually provided an opinion on the issue and concluding the agency’s findings of fact did not adequately address the issue. Applying the limited scope of review authorized by N.D.C.C. §§ 28-32-46 and 28-32-49, I would affirm the district court judgment affirming WSI’s order denying Huwe’s reapplication for disability benefits.

[¶ 68] DALE V. SANDSTROM and DANIEL J. CROTHERS, JL, Concur.