text:
    Michelle Marie HENDERSON, Appellant, v. ALLINA HEALTH SYSTEM, d/b/a Unity Hospital, et al., Respondents.
    No. CX-99-1640.
    Court of Appeals of Minnesota.
    April 11, 2000.
    Review Denied June 13, 2000.

      Jo Lynn Isaacson, Wellner & Isaacson, PLLP, Circle Pines (for appellant).
    Bradley J. Betlach, Minnetonka (for respondents).
    Considered and decided by KALITOWSKI, Presiding Judge, WILLIS, Judge, and HALBROOKS, Judge.

       BLATZ, C J., took no part in the consideration or decision of this case.

   OPINION

KALITOWSKI, Judge.

Appellant Michelle Marie Henderson challenges the district court’s order granting summary judgment to respondents Al-lina Health System, d/b/a Unity Hospital, and its unidentified employees. Appellant contends the district court erred in determining that her personal injury claim is barred by the two-year statute of limitations for medical malpractice actions under Minn.Stat. § 541.07 (1998).

FACTS

Appellant received inpatient treatment at Unity Hospital from April 5 through 8, 1996. During her hospitalization, appellant was shaky, uncoordinated, and disoriented. She had difficulty ambulating and required assistance to use the restroom. Shortly after midnight on April 8, appellant fell from her hospital bed, landing on her hands and knees. At the time of the fall appellant was unattended. She was not physically restrained or otherwise secured in her bed and the side rails on her bed had not been raised to a fully upright position. Appellant claims to have suffered permanent damage to her knees as a result of the injuries she sustained in the fall.

Appellant instituted this action on May 1, 1998, just over two years after her fall. In her complaint, she alleged that respondents had negligently failed to properly position the bed rails or otherwise safely secure her. The district court granted summary judgment in favor of respondents based on its conclusion that appellant’s action asserted a claim for medical malpractice and thus was beyond the two-year statute of limitations under Minn. Stat. § 541.07 (1998).

ISSUE

Does the statute of limitations for medical malpractice claims under Minn.Stat. § 541.07 (1998) apply to this action alleging negligent failure to raise hospital bed rails?

ANALYSIS

Summary judgment may be granted if there is no genuine issue as to any material fact and either party is entitled to a judgment as a matter of law. Minn. R. Civ. P. 56.03. In reviewing a grant of summary judgment, we must determine whether there are any genuine issues of material fact and whether the district court erred in its application of the law. Betlach v. Wayzata Condominium, 281 N.W.2d 328, 330 (Minn.1979). The evidence must be viewed in the light most favorable to the party against whom summary judgment was granted. Abdallah, Inc. v. Martin, 242 Minn. 416, 424, 65 N.W.2d 641, 646 (1954).

I.

At the time appellant brought her action, medical malpractice claims were subject to a two-year statute of limitations. Minn.Stat. § 541.07(1) (1998). The statute provided:

Except where the uniform commercial code * * * otherwise prescribes, the following actions shall be commenced within two years:
(1) * * * all actions against physicians, surgeons, dentists, occupational therapists, hospitals, other health care professionals as defined in section 145.61, and * * * hospitals, sanitariums for malpractice, error, mistake or failure to cure, whether based on contract or tort.

Id. Appellant argues that because respondents’ failure to raise her bed rails constitutes simple negligence rather than medical malpractice, the six-year statute of limitations under Minn.Stat. § 541.05 (1998) should apply. We disagree.

Under Minnesota law, a medical malpractice action “typically involve[s] negligent conduct that is connected to a person’s professional licensure.” Paulos v. Johnson, 597 N.W.2d 316, 320 (Minn.App.1999), review denied (Minn. May 20, 1997). A plaintiff must commence a lawsuit within the more restrictive time period for medical malpractice actions when the allegations involve negligence that flows from the therapeutic relationship, rather than administrative or policymaking functions. Compare Kaiser v. Memorial Blood Ctr., 486 N.W.2d 762, 767 (Minn.1992) (holding that blood bank not covered by two-year statute because its physicians did not administer tainted blood in connection with their professional licensure) with Paulos, 597 N.W.2d at 320 (holding physician’s fraudulent misrepresentations made as precursor to reconstructive surgery subject to two-year statute for medical malpractice actions).

As a threshold matter, respondents assert that the Kaiser analysis is inapplicable because appellant’s claim constitutes medical malpractice under the statute by virtue of respondent Unity Hospital’s status as a hospital. We disagree. Under Kaiser, the negligent acts by the blood bank’s physician-employees did not constitute medical malpractice even though they were committed by physicians because the physician-employees were not performing functions requiring a professional license. Kaiser, 486 N.W.2d at 767. As the court noted in Kaiser, a distinction exists “between malpractice by professionals acting pursuant to their professional licensure [and] negligence based upon conduct for which a professional license is not required.” Id.

Citing Kaiser, appellant claims that respondents’ failure to raise her bed rails constitutes simple negligence because it involves an action for which a professional license is not a prerequisite. She argues that respondents’ written bed-rail policy wrested away all discretion from hospital staff with respect to the use of bed rails for a patient in her condition, rendering the decision administrative rather than medical. We disagree.

Respondents’ Patient Care Administration Manual contains the following directives regarding the use of bed rails:

A. Side rails are available on all beds as indicated by patient status. * * *
1. Side rails will be raised as necessary by caregivers based on patient’s status.
2. Full side rails on each side of the bed will be raised for patients who are unconscious or semi-conscious state [sic].
3. All side rails must be up if the bed is elevated.

Thus, by its plain language this policy contemplates that unless the bed is elevated, caregivers should raise bed rails based on a medical assessment of a patient’s condition, including his or her relative level of consciousness. We conclude that this type of medical judgment falls within the category of an action requiring a professional licensure, since it necessitates an understanding of a patient’s medical needs and medical status.

We reject appellant’s argument that respondent Unity Hospital made an administrative decision concerning the use of bed rails merely by adopting a written policy. Instituting a general written policy is not the same as recognizing that a particular patient exhibits the medical conditions that trigger the policy’s provisions. Appellant provides no evidence that respondents had made a determination that appellant needed bed rails or other safety restraints prior to the fall but nonetheless failed to provide them. Thus, this case is distinguishable from cases in other jurisdictions that have held that a claim for injuries after a fall from a hospital bed is a claim for simple negligence where a hospital fails to equip a patient’s bed with side rails after an express assessment that the patient’s condition requires such a heightened level of care. See, e.g., Halas v. Parkway Hosp., Inc., 158 A.D.2d 516, 551 N.Y.S.2d 279, 280 (1990) (finding claim asserted simple negligence where hospital failed to use side rails despite recognized risk of harm); Smith v. North Fulton Med. Ctr., 200 Ga.App. 464, 408 S.E.2d 468, 470 (1991) (finding claim for failure to carry out nurse’s written instruction to raise bed rails constituted ordinary negligence claim). Moreover, these jurisdictions have also held that a complete failure to recognize that a plaintiffs condition requires the use of bed rails constitutes medical malpractice. See Mossman v. Albany Med. Ctr., 34 A.D.2d 263, 311 N.Y.S.2d 131, 132-33 (1970) (finding claim asserted medical malpractice where no facts suggested hospital had recognized need for use of side rails); Robinson v. Medical Ctr. of Cent. GA, 217 Ga.App. 8, 456 S.E.2d 254, 256 (1995) (“Whether the side rails should have been in the ‘up’ position or the ‘down’ position was a professional question.”).

We conclude that respondents’ written bed-rail policy provides guidance in determining the appropriate course of action following a medical assessment of a patient’s condition. Thus, respondents’ decision not to raise appellant’s bed rails required an initial medical judgment concerning her condition and mental status, and appellant’s claims based on respondents’ mistakes or errors in making that decision necessarily sound in medical malpractice rather than ordinary negligence.

DECISION

The district court did not err in granting respondents’ motion for summary judgment because appellant’s claim was barred by the statute of limitations for medical malpractice actions under Minn.Stat. § 541.07(1) (1998).

Affirmed.


source: Caselaw Access Project

author: KALITOWSKI, Judge

license: Public Domain

text:
    Joe KUELBS, Appellant, v. Joe WILLIAMS, et al., Respondents, Suzanne Flolid, et al., Respondents.
    No. C6-99-1523.
    Court of Appeals of Minnesota.
    April 11, 2000.
    Review Denied June 27, 2000.

      Marc G. Kurzman, Kurzman Grant & Ojala, Minneapolis (for appellant).
    Jon K. Iverson, Paul D. Reuvers, Erstad & Reimer, P.A., Minneapolis (for respondents Joe Williams, et al.).
    David Wendorf, Wendland Timmerman, Blue Earth (for respondents Suzanne Flo-lid, et al.).
    Considered and decided by WILLIS, Presiding Judge, KALITOWSKI, Judge, and HALBROOKS, Judge.
   OPINION

KALITOWSKI, Judge

Appellant Joe Kuelbs sued respondents City of Savage, Savage police officers Joe Williams and Terrance Gliniany, Scott County, Scott County Human Services Agency, and Scott County social worker Susanne Flolid alleging: (1) bad faith investigation and reporting of child abuse; (2) defamation; and (3) intentional infliction of emotional distress. Appellant challenges the district court’s summary judgment in favor of all respondents, arguing the court erred in determining: (1) there is no civil cause of action for bad faith investigation and reporting of child abuse under Minn.Stat. § 626.556; (2) respondents are entitled to official and vicarious official immunity; and (3) the evidence was insufficient as a matter of law to sustain appellant’s claim for intentional infliction of emotional distress.

FACTS

On the morning of May 20, 1998, a construction worker at a neighborhood home called the police to appellant Joe Kuelbs’s residence after he heard yelling and saw a boy run from the residence saying “don’t hit me anymore.”

Two City of Savage police officers, including respondent Terrance Gliniany, responded to the police call. Appellant, his girlfriend C.R., and C.R.’s 11-year-old son M.R. were present at the home when they arrived. The officers stated appellant was visibly upset and confrontational. C.R. told the police that she’argued with M.R. and that appellant then intervened and spanked M.R. M.R. said his mom became mad when he missed the bus, they argued, and then appellant became involved. M.R. said appellant struck him with a zippered sweat jacket and with his hand.

After asking M.R. to raise his shirt the officers observed and photographed a fresh abrasion under M.R.’s right arm. C.R. told the police that she caused the abrasion by grabbing M.R. to restrain him. Appellant contends that he confronted the police officers because they had M.R. lift his shirt while outside and refused to move to the garage to avoid a public scene.

The police reported possible abuse of M.R. to Scott County Human Services (SCHS) on May 22, 1998. Respondent Suzanne Flolid, an SCHS social worker, determined that the reports indicated physical abuse had occurred and commenced an assessment. Flolid and respondent City of Savage Police Officer Joe Williams interviewed M.R. at his school on May 22, 1998. M.R. said he did not think what happened was anyone’s business but explained that he had been angry at his mom and then appellant got angry and threw his sweat jacket at him, causing the marks. M.R. demonstrated how appellant hit him with the jacket. Flolid and Williams also conducted a taped interview with appellant and C.R. on June 3,1998, in which C.R. again stated she caused the marks.

After these interviews, Flolid concluded that maltreatment had occurred but that protective services were not needed. She made this determination based on (1) her contact with M.R.; (2) consistent statements by the police; (3) appellant’s “escalating conduct”; (4) her opinion that appellant and C.R. were presenting inconsistent statements; and (5) her opinion that M.R.’s marks were more consistent with his explanation than with his mother’s explanation. Appellant alleges that Officer Williams told him twice, on unspecified' occasions, that the only reason there was a finding of maltreatment was because of appellant’s “bad attitude.”

Flolid mailed C.R. a letter, dated June 4, 1998, informing C.R. of her determination of maltreatment. The letter said that the assessment indicated appellant “struck [M.R.] repeatedly with a sweatshirt resulting in red scratch marks to the upper right side of [M.R.’s] torso” based on the police reports and the interviews with M.R., C.R., and appellant.

The finding of maltreatment by SCHS was appealed to the Minnesota Department of Human Services. The department reversed the finding of maltreatment after determining the marks on M.R. were more consistent with bumping into something rather than being hit with a jacket.

Following this determination, appellant sued respondents alleging that: (1) all respondents investigated and reported the allegations of child maltreatment in bad faith in violation of MinmStat. § 626.556; (2) the Scott County respondents were liable for defamation because Flolid mailed a letter to C.R. that stated appellant repeatedly struck M.R.; and (3) all respondents committed the tort of intentional infliction of emotional distress. Respondents moved for summary judgment arguing: (1) the alleged statutory cause of action did not exist; (2) they were entitled to various immunities and defamation privileges; and (3) appellant’s emotional distress claim was insufficient as a matter of law. The district court granted respondents’ summary judgment motion on all three claims.

ISSUES

1. Is there a civil cause of action under Minn.Stat. § 626.556 for bad faith reporting or investigating child maltreatment?

2. Are respondents protected from defamation liability by qualified privilege?

3. Did the district court err in determining that appellant failed to allege extreme and outrageous conduct or severe emotional distress sufficient to maintain an action for intentional infliction of emotional distress?

ANALYSIS

I.

Appellant claims the district court erred in determining there is no private cause of action for bad faith reporting and investigating child maltreatment under the Reporting of Maltreatment of Minors Act (RMMA), Minn.Stat. § 626.556 (1998 & Supp.1999). This presents a question of statutory interpretation, which is reviewed de novo. In re Blilie, 494 N.W.2d 877, 881 (Minn.1993).

Unless a statute manifests a legislative intent to modify the common law, a statute is presumed not to alter the common law. Haage v. Steies, 555 N.W.2d 7, 8 (Minn.App.1996). Courts are precluded from creating a new statutory cause of action that does not exist at common law where the legislature has not provided for civil liability either by the statute’s express terms or by implication. Bruegger v. Faribault County Sheriff’s Dep’t, 497 N.W.2d 260, 262 (Minn.1993).

RMMA provides that persons in law enforcement who know or have reason to know a child is being physically abused must immediately report the information to the local welfare agency. Minn.Stat. § 626.556, subd. 3(a)(1). If the report alleges physical abuse by a parent, guardian, or a person in the family unit responsible for the child’s care, the local welfare agency must conduct an assessment. Minn. Stat. § 626.556, subd. 10(a). The statute has detailed provisions regarding the investigation process. See Minn.Stat. § 626.556, subd. 10.

Appellant argues that there is a civil cause of action for bad faith reporting or investigating based on an immunity provision in the statute. The statute, in relevant part, provides that:

(a) The following persons are immune from any civil or criminal liability that otherwise might result from their actions, if they are acting in good faith:
(1) any person making a voluntary or mandated report under subdivision 3 or under section 626.5561 or assisting in an assessment under this section or under section 626.5561;
(2) any person with responsibility for performing duties under this section or supervisor employed by a local welfare agency * ⅜ *.
(b) A person who is a supervisor or person with responsibility for performing duties under this section employed by a local welfare agency or the commissioner complying with subdivisions 10 and 11 or section 626.5561 or any related rule or provision of law is immune from any civil or criminal liability that might otherwise result from the person’s actions, if the person is (1) acting in good faith and exercising due care, or (2) acting in good faith and following the information collection procedures established under subdivision 10, paragraphs (h), (i), and (j).

Minn.Stat. § 626.556, subd. 4. Appellant contends that by including this immunity provision the legislature created a private cause of action. We disagree. Had the legislature intended to create a private cause, of action for bad faith reporting and investigation of maltreatment, it could have done so explicitly as it did in other sections of this statute. See Minn.Stat. § 626.556, subd. 5 (stating that a person who knowingly or recklessly makes a false report “shall be liable in a civil suit”).

Moreover, Minnesota courts are reluctant to imply a cause of action. Haage, 555 N.W.2d at 9. In determining whether a private cause of action can be implied, this court must consider:

(1) whether appellant belongs to the class for whose benefit the statute was enacted; (2) whether the legislature indicated an intent to create or deny a remedy; and (3) whether implying a. remedy would be consistent with the underlying purpose of the statute.

Flour Exch. Bldg. Corp. v. State, 524 N.W.2d 496, 499 (Minn.App.1994), review denied (Minn. Feb. 14, 1995).

None of these factors support appellant’s contention. First, RMMA’s legislative statement of public policy does not include appellant among the class of persons RMMA intends to benefit. The statement of public policy provides:

The legislature hereby declares that the public policy of this state is to protect children whose health or welfare may be jeopardized through physical abuse, neglect, or sexual abuse. In furtherance of this public policy, it is the intent of the legislature under this section to strengthen the family and make the home, school, and community safe for children * * ⅜.

Minn.Stat. § 626.556, subd. 1. Second, the relevant statutory language does not indicate an intent to create a new cause of action. Although appellant argues that the immunity provision indicates an intent to create a cause of action if persons with duties under RMMA act in bad faith, the immunity provision is by its plain language, intended to limit civil or criminal liability. Third, implying a new cause of action is inconsistent with the purpose of the statute. RMMA’s purpose of protecting children from maltreatment would not be furthered if the fear of civil liability discouraged persons from candidly reporting findings, conducting necessary investigations, or reaching findings of maltreatment.

We also note that Minnesota courts have been reluctant to recognize private causes of action under reporting acts. See Hoppe by Dykema v. Kandiyohi Co., 543 N.W.2d 635, 638 (Minn.1996) (declining to recognize an implied civil cause of action for negligent delay in conducting an investigation under the Vulnerable Adults Reporting Act); Valtakis v. Putnam, 504 N.W.2d 264, 267 (Minn.App.1993) (declining to recognize an implied civil cause of action under RMMA for failure to report suspected child abuse). Appellant attempts to distinguish Valtakis on the basis that the immunity provision in RMMA was amended in 1995. But the version of the statute interpreted in Valtakis contained a substantially similar immunity provision, including the good faith language upon which appellant relies. See Minn.Stat. § 626.556, subd. 4 (1990).

As stated in Valtakis, we are prohibited from creating causes of action neither expressly nor impliedly recognized by the legislature. 504 N.W.2d at 266. We conclude that there is no express or implied civil cause of action under RMMA for bad faith reporting or investigating child maltreatment.

II.

Appellant contends the district court erred in granting summary judgment on his defamation claim against respondents Flolid, SCHS, and Scott County based on the letter Flolid sent to C.R. These respondents contend they are not liable for defamation because of official and vicarious official immunity or because of a defamation privilege. The district court did not reach the issue of privilege because it concluded respondents were entitled to official immunity and vicarious official immunity. But official immunity does not protect an official against a defamation claim. Gleason v. Metropolitan Council Transit Operations, 582 N.W.2d 216, 220 (Minn.1998). Because respondents raised the issue of privilege below and because we may affirm summary judgment on alternative grounds, we address respondents’ privilege argument. See Winkler v. Magnuson, 539 N.W.2d 821, 827 (Minn.App.1995) (stating that the court of appeals may properly consider an issue raised below and that an appellate court can affirm stannary judgment on alternative grounds), review denied (Minn. Feb. 13, 1996).

The initial determination of whether a statement is privileged is a question of law subject to de novo review. Lewis v. Equitable Life Assurance Soc’y, 389 N.W.2d 876, 890 (Minn.1986). Based on the Minnesota Supreme Court’s decision in Bol v. Cole, 561 N.W.2d 143, 150 (Minn.1997), we conclude respondents are entitled to a qualified privilege.

A person who makes a defamatory statement is not liable if a qualified privilege applies and the privilege is not abused. Bol, 561 N.W.2d at 149. For a defamatory statement to be protected by a qualified privilege, the statement must be made in good faith, on a proper occasion, from a proper motive, and based on reasonable or probable cause. Id. If a defendant is protected by a qualified privilege, the plaintiff has the burden to prove that the privilege was abused because the statements were tnade with malice. Id. at 150. Malice is defined as “actual ill-will or a design causelessly and wantonly to injure a plaintiff.” Id. (quotation omitted). Malice cannot be implied from the statement itself or from the fact that the statement was false. Buchanan v. State Dep’t of Health, 573 N.W.2d 733, 738 (Minn.App.1998), review denied (Minn. Apr. 30, 1998). Although malice is generally a question of fact, summary judgment is appropriate if the plaintiff fails to raise a genuine issue of material fact regarding malice. Bol, 561 N.W.2d at 150-51.

In Bol, the defendant sent a notice of maltreatment to the child’s parent. The court determined that the defendant had a qualified privilege for information in the letter and that the plaintiff failed to raise a genuine issue of material fact regarding malice. Id. at 150. The court determined that there was no evidence of malice where the language in the letter reporting child abuse to a parent did not evince malice, the mode of publication did not evince malice, and the other evidence submitted was insufficient to create a fact issue. Id. at 150-51.

Here, the alleged defamatory statement is Flolid’s statement in her letter to C.R. that appellant repeatedly struck M.R. Flolid made this statement in a notice of maltreatment, which she is required by law to send to the child’s parent. See Minn.Stat. § 626.556, subd. lOf (providing that if maltreatment is found, the agency must notify the child’s parent and the person determined to be maltreating the child of the finding). Flo-lid was required to summarize the reasons for her determination in the notice. See Minn.Stat. § 626.556, subd. lOf (providing that the notice must include a summary of the specific reasons for the determination).

We conclude that Flolid made the statement in good faith, on a proper occasion, and with proper motivation. She sent the letter to fulfill her statutory duties and to assist in preventing further harm to M.R. Further, Flolid’s statement that appellant repeatedly struck M.R. was made based on her interview with M.R., his demonstration of being hit, and her professional opinion that M.R.’s version of the events was the most consistent with his injury. Because the qualified privilege applies, it is appellant’s burden to prove that the privilege was abused.

We conclude that appellant has failed to raise a genuine issue of material fact regarding malice. The language in Flolid’s letter does not evince malice and the letter was sent to C.R. in accordance with the statute. Appellant alleges that the Savage Police Department had some animus against him based on an incident in 1987. But, even if there was animus, appellant failed to show any connection between the 1987 incident and Scott County’s investigation of the alleged child maltreatment. Appellant’s sole evidence of malice is the statement by City of Savage Police Officer Williams that the only reason for the finding of maltreatment was appellant’s bad attitude. But there is no evidence that Williams played any role in Scott County’s determination that appellant maltreated M.R. Thus, even if true, Officer Williams’s statement provides no evidence of malice on the part of Flolid, SCHS, or Scott County, the respondents accused of defamation.

III.

To sustain a claim for intentional infliction of emotional distress, a plaintiff must show: (1) the conduct was extreme and outrageous; (2) the conduct was intentional or reckless; (3) it caused emotional distress; and (4) the distress was severe. Hubbard v. United Press Int’l, 330 N.W.2d 428, 438-39 (Minn.1983). On a claim for intentional infliction of emotional distress, summary judgment is proper if a party does not meet the high standard of proof needed for the claim. Strauss v. Thorne, 490 N.W.2d 908, 913 (Minn.App.1992), review denied (Minn. Dec. 15, 1992). See also Hubbard, 330 N.W.2d at 439 (stating that a plaintiff has a heavy burden of production regarding the severity of the mental distress). It is for the court to determine whether, on the evidence, severe emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed. Cafferty v. Garcia’s of Scottsdale, Inc., 375 N.W.2d 850, 853 (Minn.App.1985). A party resisting summary judgment must do more than rest on mere averments. DLH Inc. v. Russ, 566 N.W.2d 60, 70 (Minn.1997).

Appellant has failed to sustain his heavy burden of producing evidence of severe mental distress. Appellant did not introduce any evidence of any specific symptoms that could constitute severe emotional distress. We conclude that his mere averment is insufficient to withstand a motion for summary judgment, especially considering the high standard required for a claim of intentional infliction of emotional distress.

DECISION

Because Minn.Stat. § 626.556 (1998 & Supp.1999) neither expressly nor impliedly creates a civil cause of action for bad faith reporting or investigating child maltreatment, appellant failed to state a claim for which relief can be granted. We affirm the district court’s grant of summary judgment on appellant’s defamation claim because the alleged defamatory statement of Flolid is protected by a qualified privilege and appellant failed to raise a genuine issue of material fact regarding malice. Finally, appellant failed to present evidence sufficient to withstand summary judgment on his claim for intentional infliction of emotional distress.

Affirmed.


author: SANDSTROM, Justice.

text:
    2000 ND 74
    Kenneth S. CHRISTL, Plaintiff and Appellant, v. Lisa SWANSON and M.M.S., a minor child, represented by her natural mother, Lisa Swanson, Defendants and Appellees.
    No. 990256.
    Supreme Court of North Dakota.
    April 5, 2000.

      Mark R. Fraase (argued) and Douglas W. Nesheim (on brief) of Wegner, Fraase, Nordeng, Johnson & Ramstad, Fargo, N.D., for plaintiff and appellant.
    Bonnie Jendro Askew, Fargo, N.D., for defendants and appellees.
   SANDSTROM, Justice.

[¶ 1] Kenneth S. Christl appealed a judgment in his paternity, custody, visitation, and support action against Lisa Swanson and the child. We conclude the trial court had discretion to allow, or to not allow, deduction of business costs paid, but not expensed for internal revenue service purposes, in determining Christl’s net income from self-employment. We further conclude the trial court erred in ruling capital expenditures Christl made before the child was born were subject to a presumption they were asset transactions warranting an upward deviation from the Child Support Guidelines. We reverse and remand for redetermination of Christl’s child support obligation.

I

[¶ 2] Kenneth Christl and Lisa Swanson, who have never married, are the biological parents of a child, who was born September 30, 1998. Christl sued Lisa and the child, seeking a judgment adjudging Christl to be the natural father of the child, granting Lisa Swanson custody of the child, granting Christl reasonable visitation, and requiring Christl to pay Lisa Swanson child support under the Child Support Guidelines, N.D. Admin. Code ch. 75-02-04.1. Lisa Swanson answered the complaint and requested similar relief. Christl moved for summary judgment. The trial court granted partial summary judgment ruling a parent-child relationship exists between Christl and the child and reserved ruling on the other issues.

[¶ 3] Christl, a self-employed farmer, argued he was entitled to deduct all of his expenditures for the purchase of farm assets in computing his income for calculating his child support obligation. Christl submitted copies of his tax returns for 1994 through 1998, calculated his monthly income for those five years as $2,399.99, and argued his child support obligation is $475 per month. Lisa Swanson argued Christl did not borrow any money to purchase assets and was not entitled to deduct any of his expenditures for farm assets. She calculated Christl’s monthly income at $8,000 and argued Christl’s child support obligation is $1,377 per month.

[¶ 4] The trial court relied on N.D. Admin. Code § 75-01-04.1-05(2), and ruled it had “discretion to subtract certain business costs ... not allowed as a deductible expense for income tax purposes but ... paid by the self-employed parent, from the parent’s adjusted gross income.” Relying on N.D. Admin. Code § 75-02-04.1-09(2)(h) and (4), the court held:

The Court may make an upward deviation from the guideline amount of the presumptively correct child support if ... the parent has an increased ability to pay such support, due to his purposeful reduction of income available for payment of child support by “engaging in an asset transaction.”
Christl’s daughter was born on September 30, 1998. This action for establishment of Christl’s child support obligation, among other things, was commenced on January 21, 1999. Hence, all capital expenditures made by Christl subsequent to January 21, 1997 are subject to a presumption of an asset transaction warranting" an upward deviation from the child support guidelines, irrespective of Christl’s intention.

The court also ruled: 1) Christl is entitled to deduct some, but not all, of his purchase cost of depreciable assets; 2) it lacked “sufficient farming acumen to judge the propriety” of Christl’s capital expenditures for farm machinery; and 3) it “retains its discretion to disallow deductions for vehicle and other non-machinery purchases.”

[¶ 5] The trial court did not allow deductions for a vehicle, computer, and computer program. The court found Christl’s net monthly income for the purpose of determining his child support obligation is $6,300, and found Christl’s child support obligation is $1,103 per month. Christl appealed' from the judgment.

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

II

[¶ 7] Christl argues the trial court erred in determining his income and child support obligation because the trial court misapplied the Child Support Guidelines. “Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review.” Buchholz v. Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d 215. “A court errs as a matter of law when it fails to comply with the requirements of the Guidelines.” Id. “A proper finding of net income is essential to a determination of the correct amount of child support under the guidelines.” Schleicher v. Schleicher, 551 N.W.2d 766, 769 (N.D.1996). “When a district court may do something, it is generally a matter of discretion.” Buchholz, at ¶ 11. “A district court abuses its discretion when it acts arbitrarily, capriciously, or unreasonably.” Id.

[¶ 8] Christl contends the trial court erred in concluding it had “discretion whether to allow Mr. Christl to deduct actual costs of doing business which are not allowed as a deductible expense for income tax purposes.”

[¶ 9] Before its amendment in 1999, N.D. Admin. Code § 75-02-04.1-05(2) provided for determining net income from self-employment:

After adjusted gross income from self-employment is determined, all business expenses allowed for taxation purposes, but which do not require actual expenditures, such as depreciation, must be added to determine net income from self-employment. Business costs actually incurred and paid, but not expensed for internal revenue service purposes, such as principal payments on business loans (to the extent there is a net reduction in total principal obligations incurred in purchasing depreciable assets), may be deducted to determine net income from self-employment.

(Emphasis added.) In Hieb v. Hieb, 1997 ND 171, ¶ 18, 568 N.W.2d 598, we held the word “may” in the regulation is permissive rather than mandatory. We conclude the trial court had discretion to allow, or to not allow, deduction of business costs paid, but not expensed for internal revenue service purposes, in determining Christl’s net income from self-employment. We further conclude the trial court had discretion to allow deduction of the cost of some kinds of assets, such as tools and farm machinery, but to not allow deduction of the cost of other kinds of assets, such as vehicles, computers, and computer programs, which are less obviously necessary for farming than tools and farm machinery.

[¶ 10] Christl contends the trial court erred in concluding that for asset purchases made before the child was born on September 30, 1998, “under section 75-02-04.1-09(4), NDAC, ‘Christl may be presumed to have engaged in asset transactions’ for the purpose of reducing his income available for child support.”

[¶ 11] Section 75-02-04.l-09(2)(h), N.D. Admin. Code, provides the presumption that the guideline amount is the correct amount of child support may be rebutted by “[t]he increased ability of an obligor, who has engaged in an asset transaction for the purpose of reducing the obligor’s income available for payment of child support, to provide child support.” Section 75-02-04.1-09(4), N.D. Admin. Code, provides:

For purposes of subdivision h of subsection 2, a transaction is presumed to have been made for the purpose of reducing the obligor’s income available for the payment of child support if:
a. The transaction occurred after the birth of a child entitled to support;
b. The transaction occurred no more than twenty-four months before the commencement of the proceeding that initially established the support order; and
c. The obligor’s income is less than it likely would have been if the transaction had not taken place.

[¶ 12] “Unlike the term ‘or,’ which is disjunctive in nature and ordinarily indicates an alternative between different things or actions, the term ‘and’ is conjunctive in nature and ordinarily means in addition to.” Narum v. Faxx Foods, Inc., 1999 ND 45, ¶ 20, 590 N.W.2d 454 (citations omitted). The literal meaning of the terms “and” and “or” “should be followed unless it renders the statute inoperable or the meaning becomes questionable.” 1A Norman J. Singer, Sutherland Statutory Construction, § 21.14 (5th ed. 1991) (2000 Cum.Supp. 26).

[¶ 13] The literal meaning of the conjunctive “and” in N.D. Admin. Code § 75-02-04.1-09(4)(a)-(c), rather than the disjunctive “or” does not render the subsection inoperable or its meaning questionable, and indicates all three factors must exist before an asset transaction may be presumed to have been made for the purpose of reducing a child support obligor’s income available for the payment of child support. Under N.D. Admin. Code § 75-02-04.1-09(4)(a), the presumption only applies to transactions that occur “after the birth of a child entitled to support.” Thus, a transaction by Christl may only be “presumed to have been made for the purpose of reducing the obligor’s income available for the payment of child support if’ the transaction occurred after the child was born, and within 24 months before commencement of the proceeding initially establishing the child support order, and Christl’s income is less than it likely would have been without the transaction. We conclude the trial court erred, as a matter of law, in determining asset expenditures Christl made before the child was born were presumed to be asset transactions made for the purpose of reducing his income available for child support, warranting an upward deviation in child support.

[¶ 14] The trial court had discretion to determine whether, and to what extent, to allow deduction of business costs paid for the purchase of business assets, but not expensed for internal revenue purposes, in determining Christl’s net income from self-employment. However, we are not certain how the trial court would have exercised that discretion had it not acted under the mistaken view that capital expenditures made before the child’s birth could be presumed to be asset transactions warranting upward deviation from the presumptively-correct Child Support Guideline amount of support. Our function is one of review, rather than initial determination. See Lippert v. Lippert, 353 N.W.2d 333, 336 (N.D.1984) (“it is not generally for the appellate court but is for the trial court to initially determine what is equitable”); Suedel v. North Dakota Workmen’s Comp. Bur., 218 N.W.2d 164, 171 (N.D.1974) (it is not this court’s function to try the facts, but to review the facts to determine if they support the findings made). Therefore, we conclude the trial court must redetermine Christl’s child support obligation.

Ill

[¶ 15] We need not address other issues Christl has raised, because answers to those issues are not necessary to a determination of this appeal. See, e.g., State v. Evans, 1999 ND 70, ¶ 17, 593 N.W.2d 336.

[¶ 16] The judgment is reversed and the matter is remanded for redetermination of Christl’s child support obligation.

[¶ 17] GERALD W. YANDE WALLE, C.J., WILLIAM A. NEUMANN, MARY MUEHLEN MARING, CAROL RONNING KAPSNER, JJ., concur.


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

text:
    2000 ND 67
    Diane MIKKELSON, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Garrison Public School, Respondent.
    No. 990309.
    Supreme Court of North Dakota.
    April 5, 2000.
    Rehearing Denied May 11, 2000.

      Dean J. Haas, Dietz, Little & Haas, Bismarck, N.D., for claimant and appellant.
    Lawrence E. King, Special Assistant Attorney General, Bismarck, N.D., for appel-lee.
   VANDE WALLE, Chief Justice.

[¶ 1] Diane Mikkelson appealed from a judgment affirming a Workers Compensation Bureau order awarding her benefits on a 50 percent aggravation basis, and denying disability benefits after October 27, 1997. We conclude the Bureau correctly applied the aggravation statute, N.D.C.C. § 65-05-15, and did not err in limiting her disability benefits. We affirm.

I

[¶ 2] Mikkelson applied for workers compensation benefits in connection with an October 6, 1997 back and neck injury she suffered when lifting a developmentally disabled child from a wheelchair while employed as a teacher’s aide by the Garrison Public School District. A chiropractor who treated Mikkelson on October 10, 1997, advised her to not work from October 10 until October 20, 1997, but said she could return to work from October 20 until October 27, 1997, provided she perform only “[l]ight [mjedium [wjork” during that period of time with no work restriction thereafter. On October 24, 1997, Mikkel-son resigned from her position with the Garrison Public School District because of her “recent injury ... and the nature of the job I must do....” In November 1997, Mikkelson was diagnosed with “[u]p-per thoracic back pains” and was referred for physical therapy treatments.

[¶ 3] In a prior injury questionnaire, Mikkelson stated she had injured her neck and back in a June 1993 car accident. The Bureau referred Mikkelson to Dr. Gary Dilla, a physical medicine specialist, for an independent medical evaluation. From his January 15, 1998 evaluation, Dr. Dilla found Mikkelson’s “[cjurrent history and examination findings [are] highly consistent with diagnosis of possible fibromyal-gia.” Dr. Dilla described Mikkelson’s complaints as “diffuse,” including achiness between her shoulder blades and pain radiating “into the neck and shoulder region bilaterally” and into her low back. Mik-kelson also reported occasional pain into her right forearm and into the left medial knee to the ankle. Dr. Dilla said “the thoracic strain suffered by [Mikkelson] would be consistent with the type of lifting injury she describes dated 10/06/97.”

[¶ 4] Dr. Dilla also reviewed Mikkelson’s prior medical records relating to her June 1993 car accident. Mikkelson’s symptoms at the time “included neck pain, particularly on the right side, pain in the thoracic area, muscle spasms in the thoracic area which is the most painful area to her, [and] pain in the lumbar spine which is constant and bilateral.” Physical therapy notes from 1993 indicated “a lot of modalities were being given to treat multiple trigger points throughout the cervical, thoracic and lumbar area.” Physical therapy notes from January through May 4, 1994 also indicated “[t]here were a lot of treatments being given into the upper trapezius area and also the parascapular area between the shoulder blades.” Dr. Dilla said “the condition which [Mikkelson] currently has was at least in some fashion pre-existent to the 10/06/97 date.”

[¶ 5] The Bureau ordered payment of “reasonable and necessary medical expenses directly related to treatment of [Mikkelson’s] October 6, 1997, thoracic strain/sprain” and found she was entitled to disability benefits from October 10 through October 27, 1997. The Bureau also concluded, however, Mikkelson failed to prove “her problems with her neck, low back, [and] fibromyalgia ... are related to her October 6, 1997, injury.... ” Mikkel-son requested a formal hearing.

[¶ 6] Following the hearing, the Administrative Law Judge (“ALJ”) recommended finding Mikkelson sustained an injury arising out of and in the course of her employment on October 6, 1997, involving “a thoracic sprain/strain and the acceleration of [her] pre-existing condition into fibromyalgia;” Mikkelson’s pre-exist-ing condition had been aggravated by the work injury, entitling her to benefits on a 50 percent aggravation basis; and Mikkel-son failed to establish any entitlement to disability benefits after October 27, 1997. The ALJ recommended remanding to the Bureau for further evidentiary development and decision on “whether [Mikkel-son] is still in the period of acute care, or whether that time period ended sometime between January 15, 1998, and the present. ...” The Bureau adopted the ALJ’s recommended findings and conclusions, and the district court affirmed the Bureau’s order.

II

[¶ 7] On appeal, we review the Bureau’s decision, not the district court’s decision. Hein v. North Dakota Workers Compensation Bureau, 1999 ND 200, ¶ 13, 601 N.W.2d 576. Under N.D.C.C. §§ 28-32-19 and 28-32-21, we must affirm the Bureau’s decision unless its findings of fact are not supported by a preponderance of the evidence, its conclusions of law are not supported by its findings of fact, its decision is not supported by its conclusions of law, its decision is not in accordance with the law or violates the claimant’s constitutional rights, or its rules or procedure deprived the claimant of a fair hearing. Saakian v. North Dakota Workers Compensation Bureau, 1998 ND 227, ¶ 9, 587 N.W.2d 166. In determining whether the Bureau’s findings of fact are supported by a preponderance of the evidence, we exercise restraint and do not make independent findings or substitute our judgment for that of the Bureau, but determine only whether a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record. Renault v. North Dakota Workers Compensation Bureau, 1999 ND 187, ¶ 16, 601 N.W.2d 580.

A

[¶ 8] Mikkelson argues the Bureau erred in applying the aggravation statute, now codified at N.D.C.C. § 65-05-15, to her claim for benefits.

[¶ 9] This Court has for many years dealt with various versions of the aggravation statute. When originally enacted in 1931, the aggravation statute allowed compensation in the case of preexisting diseases “only for such proportion of the disability due to the aggravation of such prior disease as may reasonably be attributable to the injury.” 1931 N.D. Sess. Laws ch. 312, § 1. The statute remained essentially the same for almost 50 years. This Court construed the early version of the statute to apply only when the injured worker suffered “disability” from the preexisting disease or injury and not when a dormant preexisting disease or injury was present. See Wolf v. North Dakota Workmen’s Compensation Bureau, 267 N.W.2d 785, 789 (N.D.1978); Gullickson v. North Dakota Workmen’s Compensation Bureau, 83 N.W.2d 826, 832 (N.D.1957); Tweten v. North Dakota Workmen’s Compensation Bureau, 69 N.D. 369, 381-82, 287 N.W. 304, 310-11 (1939).

[¶ 10] In 1977, the Legislature amended the aggravation statute to say “[c]ompen-sation shall not be paid for any condition which existed prior to the happening of a compensable injury nor for any disability chargeable to such condition,” and set 50 percent as the percentage award “[i]f the degree of aggravation cannot be determined .... ” 1977 N.D. Sess. Laws ch. 579, § 14. The statute continued to allow an aggravation award “only for such proportion of the disability, death benefits, or expense arising from the aggravation of such prior condition as reasonably may be attributable to such compensable injury.” Id. In a series of cases, this Court and the Court of Appeal held this version of the aggravation statute could be used to apportion benefits only if the preexisting condition was known in advance of the work-related injury and resulted in an actual disability that significantly impaired the work capacity of the claimant. See Sloan v. North Dakota Workers Compensation Bureau, 462 N.W.2d 638, 643 (N.D.1990); Elliott v. North Dakota Workers Compensation Bureau, 435 N.W.2d 695, 697-98 (N.D.1989); Balliet v. North Dakota Workmen’s Compensation Bureau, 297 N.W.2d 791, 794-95 (N.D.1980); Jepson v. North Dakota Workmen’s Compensation Bureau, 417 N.W.2d 184, 185 (N.D.Ct.App.1987).

[¶ 11] In 1989, the Legislature amended the aggravation statute by completely revising the previous statutory language and providing for an aggravation award in the case of a “preexisting condition,” which was specifically defined to mean “disability or impairment known in advance of the work injury. It is sufficient to invoke the aggravation statute if the preexisting condition is active at the time of the work injury, evidenced by work restriction (active disability) or interference with function (active impairment).” 1989 N.D. Sess. Laws ch. 766, § 5. In Bruns v. North Dakota Workers Compensation Bureau, 1999 ND 116, ¶¶ 12-21, 595 N.W.2d 298, this Court held, under the 1989 version of the statute, an aggravation award is proper when a new work injury combines with and aggravates a preexisting condition, and the preexisting condition which is active at the time of the work injury can be evidenced by impairment less severe than loss of or loss of use of a member of the body.

[¶ 12] In 1997, the Legislature again amended and revised the aggravation statute. 1997 N.D. Sess. Laws ch. 544, § 1. Mikkelson’s case is governed by the 1997 version of N.D.C.C. § 65-05-15, which provides in part:

When a compensable injury combines with a noncompensable injury, disease, or other condition, the bureau shall award benefits on an aggravation basis, on the following terms:
1. In cases of a prior injury, disease, or other condition, known in advance of the work injury, which has caused previous work restriction or interference with physical function the progression of which is substantially accelerated by, or the severity of which is substantially worsened by, a compensable injury, the bureau shall pay benefits during the period of acute care in full. The period of acute care is presumed to be sixty days immediately following the com-pensable injury, absent clear and convincing evidence to the contrary. Following the period of acute care, the bureau shall pay-benefits on an aggravation basis.
2. If the progression of a prior com-pensable injury is substantially accelerated by, or the severity of the compensable injury is substantially worsened by a noncompensable injury, disease, or other condition, the bureau shall pay benefits on an aggravation basis.
3. The bureau shall pay benefits on an aggravation basis as a percentage of the benefits to which the injured worker would otherwise be entitled, equal to the percentage of cause of the resulting condition that is attributable to the compensable injury. Benefits payable on an aggravation basis are presumed to be payable on a fifty percent basis. The party asserting a percentage other than the presumed fifty percent may rebut the presumption with clear and convincing evidence to the contrary.

The 1989 statutory reference to the preexisting condition being “active at the time of the work injury” is absent from the 1997 legislation.

[¶ 13] Mikkelson relies on Wolf, Balliet, Elliott, Sloan, Jepson and Bruns for her argument the preexisting condition must result in work restrictions or impairment that are evident at the time of the work injury for the aggravation statute to apply, and because there was no evidence of work restrictions or impairment at the time of her work injury, the Bureau erred in applying the aggravation statute to her claim for benefits. Those cases, however, were decided under previous versions of the aggravation statute, and they are not particularly helpful in analyzing her claim under the 1997 statute. Under the new statute, an aggravation award is appropriate if the prior injury, disease or other condition is known in advance of a connected work injury and has caused previous work restriction or interference with physical function, and the work injury combines with the preexisting condition to substantially accelerate the progression of, or substantially worsen the severity of, the preexisting condition.

[¶ 14] At the time of her June 1993 car accident, Mikkelson missed about two weeks of work before returning to employment without any medically mandated work restrictions. Treatments given to Mikkelson for almost one year after the car accident focused on “diffuse cervical, thoracic and lumbar pain, primarily cervical and thoracic pain,” conditions similar to her current conditions.

[¶ 15] At his deposition, Dr. Dilla was asked whether Mikkelson had fibromyalgia before her October 1997 work injury:

A. Yes, sir. I do believe she suffered from fibromyalgia prior to the work injury.
Q. And it appears — or is it your opinion that that fibromyalgia was certainly at times symptomatic prior to the work injury of October ’97?
A. Yes, sir, I do.
Q. After the work injury did the fi-bromyalgia itself and in describing that condition, did that condition itself — I want to focus just on the condition right now — did that condition get substantially worse?
A. Yes, sir, I believe that that is the case. That would be accurate.
Q. Did she have the fibromyalgia back in ’93 did it appear given the diffuse nature of the complaints or don’t we know?
A. Again, I can’t say definitively not having examined her back in ’93 or ’94, but based on my review of the records, the areas that she was complaining of, the trigger points that were supposedly being palpated out by her therapists and other treating physicians, all of those pieces of information are consistent with fibromyalgia.

Dr. Dilla also agreed that Mikkelson’s work injury “substantially accelerated” her preexisting fibromyalgia.

[¶ 16] Dr. Dilla was unable to say whether Mikkelson had an impairment at the time of her October 1997 work injury, and Mikkelson denied any impairment or disability. Dr. Dilla noted, however, that Mikkelson’s fibromyalgia clearly predated the work injury, and that he has never seen anyone with fibromyalgia have 100 percent symptom resolution. Dr. Dilla also stated Mikkelson’s fibromyalgia was symptomatic before her work injury:

Q. Clearly, Diane Mikkelson had some interference with her functioning based on what appears to have been fibromyalgia back in ’93 and ’94?
A. Clearly back in ’93, ’94, yes, sir.
Q. And the question of how long that interference with function continued beyond May of ’94 you’re unable to answer because we don’t have the medical records for it?
A. Yes, sir.

[¶ 17] The ALJ found Mikkelson’s testimony “supported by lay witnesses and medical evidence showing improvement in her condition after the 1993 accident is ... consistent with the progression of a condition which resolved for a time until it was aggravated by a new injury which substantially accelerated its progress.” Evidence that Mikkelson’s preexisting condition was “active” at the time of her compensable work injury was not required to invoke the aggravation statute. We believe a reasoning mind reasonably could have found from the evidence that Mikkelson had preexisting fibromyalgia known in advance of the work injury which caused substantial interference with her functioning, and that the work injury substantially aggravated Mikkelson’s underlying preexisting fibro-myalgia. We conclude the Bureau properly applied the aggravation statute in this case.

B

[¶ 18] Mikkelson contends the Bureau erred in failing to award her disability benefits after October 27,1997.

[¶ 19] The disability verification requirements are found in N.D.C.C. § 65-05-08.1, which provides in part:

1. An injured employee’s doctor shall certify the period of disability and the extent of the injured worker’s abilities and restrictions.
2. A doctor certifying disability shall include in the report filed with the bureau:
a. The medical basis established by-medical evidence supported by objective medical findings for the certification of disability;
b. Whether the employee is totally disabled, or, if the employee is not totally disabled, whether the employee is able to return to any employment, and a statement of the employee’s restrictions and physical limitations; and
c. A professional opinion as to the expected length of, and reason for, the disability.
d. A doctor may not certify or verify past disability commencing more than sixty days before the doctor’s examination of the employee.
3. The report must be filed on a form furnished by the bureau, or on any other form acceptable to the bureau.
4. The injured employee shall ensure that the required reports for any period of disability are filed.

To establish entitlement to disability benefits, the claimant must ensure that the claimant’s doctor verify disability in a filed report containing the information required by the statute. Lindell v. North Dakota Workers Compensation Bureau, 1998 ND 174, ¶¶ 16-21, 584 N.W.2d 520 (construing the 1995 version of the statute).

[¶ 20] In its original order awarding benefits, the Bureau concluded Mikkelson was entitled to disability benefits from October 10 through October 27, 1997. This award was based on the report filed by Mikkel-son’s chiropractor who advised her to not work from October 10 until October 20, 1997, but said she could return to “[l]ight Medium [w]ork” from October 20 until October 27,1997. The report contained no work restrictions after October 27, 1997. The Bureau’s order specifically advised Mikkelson it had “not received any medical verification of disability for the claimant beyond October 27,1997.”

[¶ 21] The original report filed by Mik-kelson’s chiropractor is the only evidence in the record verifying any disability, and Mikkelson was placed on notice that further medical verification was necessary to obtain disability benefits beyond October 27, 1997. Mikkelson relies on Dr. Dilla’s January 15, 1998 independent medical evaluation, in which he indicated that Mik-kelson should “undergo a full two day functional capacity assessment,” and “suspect[ed]” the assessment would probably show some degree of disability. Mikkel-son also relies on a form provided by her chiropractor less than a week before the formal hearing, found “untimely” and inadmissible by the ALJ, indicating Mikkelson should be restricted to “Might” work. However, neither of these items meets the specific statutory requirements for disability verification.

[¶ 22] We believe a reasoning mind reasonably could have determined from the evidence that Mikkelson failed to establish the statutory requirements for verifying disability after October 27, 1997. We conclude the Bureau did not err in denying Mikkelson disability benefits after October 27,1997.

Ill

[¶ 23] The judgment is affirmed.

[¶ 24] CAROL RONNING KAPSNER, DALE V. SANDSTROM, WILLIAM A. NEUMANN, JJ., concur.

MARING, Justice,

concurring in part and dissenting in part.

[¶ 25] This is but another example of the erosion of the bargain struck between workers and employers, specifically in the area of benefits for an aggravation of a preexisting condition. See Saari v. ND Workers Compensation Bureau, 1999 ND 144, 598 N.W.2d 174; Baldock v. ND Workers Compensation Bureau, 554 N.W.2d 441 (N.D.1996); compare N.D.C.C. § 65-05-15 (1989) and N.D.C.C. § 65-05-15 (1997). The problem is further compounded by Bureau attorney Reagan Pufall’s representation to the legislative committee that the deletion of the language that the condition be “active” at the time of the work injury did not change the concepts of the 1989 aggravation statute and all the precedent developed by this Court, when in fact, it did, as pointed out in the majority opinion in footnote one.

[¶ 26] I concur with the majority in Part B, but respectfully dissent from Part A. The opinion of Dr. Dilla that Mikkelson had fibromyalgia before the October 1997 work injury has no factual basis. In fact, Dr. Dilla testified he was unable to state “definitively” Mikkelson had fibromyalgia in 1993 or 1994 only that her “trigger points” “palpated out by her therapists and other treating physicians” were “consistent with fibromyalgia.” Bureau hearings must be conducted in accordance with the due process and fair hearing ground rules set out in the Administrative Agencies Practice Act (“AAPA”). N.D.C.C. ch. 28-32. “[The AAPA] outlines what evidence can be presented at the hearing, and what evidence can be considered in reaching decisions. N.D.C.C. §§ 28-32-06, 28-32-07.” S & S Landscaping Co. v. ND Workers Compensation Bureau, 541 N.W.2d 80, 83 (N.D.1995). Under N.D.C.C. § 28-32-06(1), “[t]he admissibility of evidence in any adjudicative proceeding before an administrative agency shall be determined in accordance with the North Dakota Rules of Evidence.” Although an administrative agency may waive application of the North Dakota Rules of Evidence, “only relevant evidence shall be admitted.” N.D.C.C. § 28-32-06(1). The evidence on which the Bureau bases its findings must be both relevant and competent, however. Sunderland v. ND Workmen’s Compensation Bureau, 370 N.W.2d 549 (N.D.1985); O’Brien v. ND Workmen’s Compensation Bureau, 222 N.W.2d 379 (N.D.1974); Erickson v. ND Workmen’s Compensation Bureau, 123 N.W.2d 292 (N.D.1963). Our decisions have stated a medical opinion must be stated to a reasonable degree of medical certainty or probability. Kunnanz v. Edge, 515 N.W.2d 167, 173 (N.D.1994).

[¶ 27] No one ever diagnosed Mikkelson with fibromyalgia before her October 1997 working injury. Dr. Krause, who treated Mikkelson following her 1993 car accident, never diagnosed fibromyalgia. In addition, Dr. Songsiridej, with whom Mikkel-son sought treatment in 1998 for symptoms associated with her work injury, states that Mikkelson, in her opinion, did not have fibromyalgia after the car accident. The only diagnosis of fibromyalgia was made by Dr. Dilla, who performed a review of Mikkelson’s medical records and an examination of Mikkelson at the request of the Bureau on January 15, 1998, which was after her October 1997 work injury. As Dr. Dilla himself acknowledged, fibromyalgia must be carefully diagnosed by identifying a minimum of 11 trigger points and determining that all the criteria for fibromyalgia are present. There is no evidence that everyone who suffers a paracervical strain or “whiplash” develops fibromyalgia. A reasoning mind could not have reasonably concluded from this evidence that Mikkelson had preexisting fibromyalgia, known in advance of the work injury, which caused substantial interference with her functioning. There are no facts to support the conclusory opinion of Dr. Dilla. The findings of fact are, therefore, not supported by any competent evidence, only pure speculation. I would reverse the Bureau’s decision that the aggravation statute applies in this case and remand for reinstatement of full benefits due.

[¶ 28] Mary Muehlen Maring

      . The Bureau represented to the Legislature that, for the most part, all concepts of the 1989 aggravation statute were "carried over into the new language in the Bill, but they are restated in clearer and more concise terms.” Hearing on H.B. 1261 Before the House Industry, Business and Labor Comm., 55th N.D. Legis. Sess. (Feb. 3, 1997) (written testimony of Reagan R. Pufall, attorney for the Bureau, at p. 5). The one concept from the 1989 law "omitted from the new language,” i.e., that the condition be "active” at the time of the work injuiy, was removed because it was "unnecessarily confusing” and was “vague and unhelpful.” Id. at pp. 5-6.
      The representations to the legislative committee concerning the omission of language from the proposed legislation was, in itself, at best confusing or at worst misleading. However, it does not alter the reality that the language was omitted from the statute and that under our rules of statutory construction the omission leaves no ambiguity to resolve. E.g., Anderson v. Anderson ex rel. Anderson, 1999 ND 57, ¶ 4, 591 N.W.2d 138 (stating Supreme Court does not disregard clear and unambiguous language in pretext of pursuing legislative intent); Scott v. North Dakota Workers Compensation Bureau, 1998 ND 221, ¶ 15, 587 N.W.2d 153 (stating it is presumed Legislature does not perform useless acts and that it intended to change existing law). The deletion of the language that the condition be "active” at the time of the work injury is clear and unambiguous.

      . The Bureau adopted the ALJ’s recommendation to remand to the Bureau for determination of Mikkelson's "period of acute care," during which benefits are payable "in full” under N.D.C.C. § 65-05-15. Although the parties on appeal have argued about the length of Mikkelson’s acute phase, we express no opinion on this question.


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

text:
    2000 ND 71
    Dennis SCHAAN, Plaintiff and Appellee, v. MAGIC CITY BEVERAGE CO., Defendant and Appellant.
    No. 990119.
    Supreme Court of North Dakota.
    April 5, 2000.

      J. Philip Johnson, Wold Johnson, P.C., Fargo, N.D., and Mark J. Butz (on brief), Rugby, N.D., for defendant and appellant.
    Michael R. Hoffman, Tuntland and Hoffman, Bismarck, N.D., for plaintiff and ap-pellee.
   MARING, Justice.

[¶ 1] Magic City Beverage, Inc. (“Magic City”) appeals from a judgment entered upon a jury verdict and also from the trial court’s order denying its motion for a new trial. Dennis Schaan filed a motion to dismiss the appeal, claiming our Court is without jurisdiction. We conclude that we lack jurisdiction, and therefore, we dismiss this appeal.

I.

[¶ 2] On November 14, 1998, a jury found Magic City discriminated against Schaan on the basis of his age and awarded Schaan $125,346 in past and future economic damages. Following the trial, Schaan requested attorney’s fees as costs under the North Dakota Human Rights Act. The trial court awarded $12,825 in attorneys fees and $431.60 in other costs and entered judgment on January 22, 1999. Schaan served Magic City with a notice of entry of judgment on January 25, 1999.

[¶ 3] Magic City served a motion, dated February 26, 1999, for a new trial or judgment notwithstanding the verdict, which was filed on March 2, 1999. Magic City’s stated grounds were:

1. Contemporaneous with this motion, Defendant will order from the recorder a transcript of the proceedings.
2. The estimated completion date of such transcript is April 1,1999.
3. Within ten days of receipt of the transcript Defendant will submit its brief setting forth the grounds and argument for new trial or judgment notwithstanding the verdict.
4. Pending disposition of such motion, security has been provided and execution of the judgment stayed.

On March 3, the court ordered execution of the judgment stayed, so long as the defendant deposited $140,000 in a bank account. The court noted in its order that, “[i]n the event the proper appellate procedures are not complied with and the Defendant forfeits it’s [sic] right to appeal, the deposit shall be used to satisfy the Judgment.”

[¶ 4] On March 31, 1999, Schaan filed a motion requesting that the trial court enforce satisfaction of the judgment. Schaan claimed Magic City’s motion for a new trial was defective because it did not state grounds with particularity, and its motion for judgment notwithstanding the verdict was defective because it was not timely filed. Schaan argued the defective motion failed to toll the time for filing the notice of appeal, which Schaan claimed had expired March 29,1999.

[¶ 5] Magic City then served two motions, both dated April 7, 1999, and filed April 12, 1999. One motion requested an extension of time to file a motion for a new trial under Rules 59(c) and 60(b), N.D.R.Civ.P., based on the delay in obtaining the transcript and excusable neglect of defense counsel. The other motion requested a 30-day extension of the time to file a notice of appeal, based on the same grounds. Magic City filed an amended motion for a new trial or judgment as a matter of law on April 16,1999.

[¶ 6] The trial court issued its findings and order on April 23, 1999. The order granted Magic City’s motion for an extension of time to file an amended motion for a new trial, but simultaneously denied the motion for a new trial or judgment notwithstanding the verdict. The trial court acknowledged the motion for a new trial did not state its grounds with particularity, but found this did not make the motion defective because Magic City wished to procure a transcript and did, after receipt of the transcript, file an amended motion setting forth its grounds more specifically. The trial court also granted Magic City’s motion for an extension of time to file a notice of appeal for good cause shown and excusable neglect, concluding Magic City’s motion for a new trial or judgment notwithstanding the verdict tolled the time for filing the notice of appeal on March 2, 1999. The trial court reasoned the full time for filing the notice of appeal started to run upon the date of its ruling on the Rule 59 motion. In addition to that 60-day period, the court granted Magic City an additional 30 days for good cause shown and for the excusable neglect of Magic City’s counsel. Magic City filed its Notice of Appeal on April 26,1999.

II.

[¶ 7] Schaan contends Magic City’s motion for a new trial or judgment notwithstanding the verdict was defective. First, Magic City failed to move for judgment as a matter of law within, the 15-day time period allowed for such a motion under Rule 50, N.D.R.Civ.P. Second, Magic City’s motion did not state its grounds with particularity as required by Rule 7(b)(1), N.D.R.Civ.P., and so faüed as a motion. Thus, Schaan argues this Court is without appellate jurisdiction to review the trial court’s denial of the motion on its merits. We agree.

A.

[¶ 8] Under Rule 50(b), a party may move for judgment as a matter of law (“JAML”) “by serving and filing a motion not later than 15 days after notice of entry of judgment and may request a new trial or join a motion for a new trial under Rule 59.” The trial court interpreted the provision allowing joinder of the two motions as substituting the 60-day time period allowed for filing a motion for a new trial under Rule 59, for the 15-day time period allowed under Rule 50(b). Thus, the trial court concluded Magic City’s post-trial motion for JAML was timely filed on March 2, 1999, because Magic City had 60 days to file its motion following the notice of entry of judgment on January 25, 1999. We disagree with this analysis.

[¶ 9] Rule 50(b) contains only one time limit and draws no distinction between the treatment of a motion which is solely for JAML and that of a JAML motion joined with a motion for a new trial. In addition, Rule 50(b) is the only rule which provides that motions for a new trial and JAML may be joined; Rule 59 does not state the motions may be joined and submitted within its 60-day deadline. We do not believe a party’s decision to join the two motions extends the time allowed for filing a motion for JAML by an additional 45 days. We conclude a motion for a new trial under Rule 59 may be joined with a timely filed Rule 50 motion for JAML, but joining the motions does not extend the time limit for filing a Rule 50 motion beyond the 15 days allowed by that rule.

[¶ 10] Magic City received the notice of entry of judgment on January 25, 1999. Under Rule 50(b), Magic City then had 15 days to file a motion for JAML, plus three days for. service by mail allowed under Rule 6(e). Under our rules, the deadline for such a motion was February 12, 1999; Magic City’s motion for JAML was not filed until March 2, 1999. Thus, the motion for JAML was untimely. An untimely JAML motion does not toll the running of time for filing a notice of appeal under N.D.R.App.P. 4(a). Magic City’s appeal was not filed within 60 days of notice of entry of judgment. As we note below, no other action taken by Magic City or the trial court properly extended the time for appeal. Therefore, we are without jurisdiction to consider Magic City’s appeal from the trial court’s denial of the motion.

B.

[¶ 11] Rule 59, N.D.R.Civ.P., governs motions for new trials in civil cases. Under Rule 59(c)(2), a motion for a new trial must be served and filed within 60 days after notice of entry of judgment, unless the court extends the time for good cause shown. Rule 6(e), N.D.R.Civ.P., permits an additional three days to be added to this time period for service by mail. A motion under Rule 59 is subject to the requirement stated in N.D.R.Civ.P. 7(b)(1), that a motion “shall state with particularity the grounds therefore.”

[¶ 12] The particularity requirement codified in Rule 7(b)(1) has long been part of North Dakota law. See Olson v. Great Northern Ry. Co., 56 N.D. 690, 219 N.W. 209 (1928). Three policy grounds support the particularity requirement: (1) it spares the court a search of the record and directs the court’s attention to possible faults; (2) it advises opposing counsel so that she may prepare and adequately contest the motion; and (3) it provides an adequate record for appellate review. Fowler v. Delzer, 177 N.W.2d 756, 762 (N.D.1970); Sullwold v. Hoger, 110 N.W.2d 457, 459 (N.D.1961). This Court has often stated the requirement that grounds be specified is not a “technical obstacle[ ] to a moving party seeking justice.” Sullwold, 110 N.W.2d at 459. Rather, the rule is a procedural safeguard in that,

if the ‘grounds’ which the litigant considers meritorious are actually lacking in merit, the requirement of particularity in presentation will serve to disclose to the examining eye and the evaluating mind their weakness.

Id.

[¶ IS] Our Court has held repeatedly that specifying “grounds” means something more than stating generalities. See Porter v. Porter, 274 N.W.2d 235, 242 (N.D.1979); Fowler, 177 N.W.2d at 762. In Porter, we concluded a motion for a new trial under Rule 59 did not adequately specify its grounds when it merely stated that “material mistakes of fact occurred in a particular finding or conclusion of law.” 274 N.W.2d at 242. There we stated:

[i]t is not the duty of the trial court on a motion for a new trial to search the record to determine whether or not the evidence is sufficient to sustain a finding. The party making the motion must point out where the evidence is insufficient. (Citation omitted.) The mere assertion that a mistake was made in a particular finding does not meet the specificity requirement.

Id.

[¶ 14] We conclude Magic City’s motion lacked the level of particularity required by Rule 7(b)(1). In the motion, Magic City made no attempt whatsoever to explain the basis for its request for a new trial. Rather, the motion Magic City submitted contained no grounds at all, not even a general statement of insufficiency of the evidence; it simply informed the trial court that a transcript had been ordered and that Magic City would present its grounds at some later date. Under long standing North Dakota precedent, the document Magic City presented was clearly inadequate because it was not sufficiently precise to inform the opposing party and the court of the question involved. Thus, Magic City’s “motion” did not meet the particularity requirement for a valid motion for a new trial.

[¶ 15] Though our case law recognizes two circumstances in which a motion may be valid despite its failure to meet the particularity requirement on its face, neither of those exceptions applies in this case. First, when a party has filed a motion which is defective on its face, supporting papers or briefs filed contemporaneous with the motion detailing grounds with specificity may suffice to meet the particularity requirement. See, e.g., Eisenbarth v. Eisenbarth, 91 N.W.2d 186, 188 (N.D.1958); Fowler, 177 N.W.2d at 763. In this case, however, Magic City submitted no supporting documents along with its defective new trial motion. Second, this Court has reviewed a motion for a new trial despite its admitted lack of particularity when the opposing party failed to object and the trial court, on its own initiative, determined the “interests of justice” justified review. Gleson v. Thompson, 154 N.W.2d 780, 785 (N.D.1967). Here, Schaan vigorously objected to the motion in the trial court; and Rule 59(g) and (i), N.D.R.Civ.P., provide the proper procedure for the court on its own initiative to vacate a verdict.

[¶ 16] Under our law, it may also be possible for a party to amend a defective motion in order to remedy a lack of specificity. In Sullwold, this Court stated a defective motion, duly objected to, may be amended or corrected if there are meritorious grounds. 110 N.W.2d at 459. Magic City did attempt to amend its motion; on April 12, 1999, Magic City requested an extension of time to file an amended motion for a new trial and eventually filed that amended motion on April 16, 1999. However, we conclude Magic City’s request for an extension was untimely, and therefore, its amended motion was also untimely and could not remedy the insufficiency of its earlier motion.

[¶ 17] Rule 59(c)(2) allows the trial court to extend the time to file a motion for a new trial beyond the 60 days allowed by that rule when a party shows good cause. Rule 59(c)(2) does not, however, expressly state such an extension may be granted upon motion made after the original 60-day time period has expired. In contrast, Rule 4(a), N.D.R.App.P., specifically allows the trial court to extend the time to file a notice of appeal upon motion made after the time period for filing the notice has expired. Further, under Rule 6(b)(2), N.D.R.Civ.P., a party may request an extension of time for filing various motions even after the time period has already expired; however, the rule further states that the trial court “may not extend the time for taking any action under Rule[ ] ... 59(c) ..except to the extent and under the conditions stated” therein. Thus, Rule 59(c)(2) is unlike Rule 4(a) and is expressly excluded from Rule 6(b)(2). We conclude the absence in Rule 59(c)(2) of express language permitting a trial court to grant an extension upon motion made after the time for filing a motion for a new trial has expired renders a trial court without power to grant such an extension.

[¶ 18] Magic City filed its motion for an extension of time to file an amended motion for a new trial on April 12, 1999, two weeks after the time for filing a new trial motion under Rule 59 expired. We conclude this motion was untimely and that the trial court was without power to grant the extension when the motion was made after the originally prescribed time period had expired. It follows that Magic City’s amended motion for a new trial, filed 18 days after the time period allowed for such motions under Rule 59, was also untimely. Under our rules, the trial court had no power to authorize its delayed filing. Thus, the time for filing an appeal was not tolled by either the insufficiently particular motion Magic City originally filed or the untimely amended motion. Therefore, we are without jurisdiction to consider Magic City’s appeal from the trial court’s denial of the motion for a new trial.

III.

[¶ 19] Finally, Schaan contends the trial court abused its discretion in granting Magic City an extension of time to file a notice of appeal and that Magic City’s notice of appeal was not timely filed. Thus, Schaan argues Magic City’s notice of appeal did not confer jurisdiction on this Court based on a valid extension. We agree.

[¶ 20] Under N.D.R.App.P. 4(a), in a civil case, a notice of appeal “must be filed with the clerk of the trial court within 60 days of service of notice of entry of the judgment or order appealed from.” Rule 6(e), N.D.R.Civ.P., permits three days to be added to this time limit for service by mail. Rule 4(a) allows the trial court to extend the time allowed for filing a notice of appeal by up to 30 days, but the time period may not exceed 90 days from the date of service of notice of entry of judgment. In the Interest of J.S., 1998 ND 92, ¶ 10, 578 N.W.2d 91.

[1121] Under Rule 4(a), the filing of a timely motion under Rule 59 tolls the running of the time for filing a notice of appeal. However, because Magic City failed to file a proper Rule 59 motion, the time for filing a notice of appeal was not tolled and expired on March 29, 1999. Magic City requested an extension of time to file its notice of appeal on April 12,1999. As explained above, Rule 4(a) expressly allows the trial court to grant such an extension after the original time for filing a notice of appeal has expired.

[¶ 22] To receive an extension of time under Rule 4(a), a party must show the failure to file a timely notice of appeal was the result of excusable neglect. We will not set aside a trial court’s order on a motion for an extension of time based on excusable neglect absent an abuse of discretion. K & K Implement, Inc. v. First Nat’l Bank, Hettinger, North Dakota, 501 N.W.2d 734, 737 (N.D.1993). A trial court abuses its discretion when it acts arbitrarily, unconscionably or unreasonably. Nas trom v. Nastrom, 1998 ND 75, ¶ 6, 576 N.W.2d 215. In this case, the trial court granted Magic City’s motion for an extension of time to file a notice of appeal “for good cause shown” and for “other excusable neglect as set forth in the affidavit” submitted by Magic City’s trial counsel. We conclude, under the circumstances, the trial court abused its discretion in granting Magic City an extension of time to file a notice of appeal.

[¶ 23] First, the trial court’s order was based, in part, on good cause shown. Yet, in Hagert v. Hatton Commodities, Inc., this Court expressly stated that under Rule 4(a), “[t]he sole ground for granting an extension of time for filing a notice of appeal under our rule is excusable neglect” and that “good cause is not a ground for granting an extension.” 421 N.W.2d 473, 475 (N.D.1988). Thus, the trial court’s order contradicted both the express language of Rule 4(a) and our clear precedent interpreting that rule.

[¶ 24] Second, we conclude the trial court’s determination excusable neglect existed in this case was unreasonable. This Court has stated that to establish excusable neglect a party must show “unique or extraordinary circumstances” caused the delay in filing. Nastrom, 1998 ND 75, ¶ 8, 576 N.W.2d 215. In Hagert, we affirmed a trial court order denying an extension of time to file a notice of appeal because the requesting party did not show the failure to file was the result of excusable neglect. 421 N.W.2d at 476. In that case, the circumstances proffered as amounting to excusable neglect included clerical error, the resignation of a lawyer who had been handling the matter, and that the appeal was prepared by a law school graduate who was studying for the bar and was distracted by an illness in his family. Id. at 475-476. We affirmed the trial court’s conclusion that neither clerical error nor the press of an attorney’s work load or other commitments constitute excusable neglect. Id. at 476. Rather, we stated, the failure was “one of those careless omissions to which everyone is indeed subject, but which do not excuse inaction.” Id. at 476 (quoting Nichols-Morris Corp. v. Morris, 279 F.2d 81, 83 (2nd Cir.1960)).

[¶ 25] Similarly, in Nastrom, this Court affirmed a trial court determination excusable neglect did not exist where counsel failed to timely file a notice of appeal because he was not satisfied certain testimony was inaccurate until more than 60 days after notice of entry of judgment. 1998 ND 75, ¶ 6, 576 N.W.2d 215. We noted Nastrom’s claim of excusable neglect was not reasonably supported-by .evidence when she failed to produce evidence she claimed existed showing the testimony was untruthful and never explained why it took so long to find such evidence. Id. at ¶ 8.

[¶ 26] In this case, the trial court’s order stated no reasoning regarding the showing of excusable neglect, but incorporated an affidavit submitted by Magic City’s trial counsel. In this affidavit, Magic City’s trial counsel claims Magic City could not meet post-trial filing deadlines because a transcript of the trial was unavailable. Counsel explains Magic City consulted with another attorney regarding a possible appeal and then decided to order a transcript. The affidavit states Magic City ordered the trial transcript on February 26, 1999, and that the transcript was completed approximately five and one-half weeks later, on April 5,1999.

[¶ 27] The jury returned its verdict against Magic City on November 14, 1998. Magic City admits it waited over three months following the verdict, until late February, to order a trial transcript. The affidavit incorporated in the trial court’s order merely states that Magic City believed obtaining a transcript was necessary to prepare an appeal; it does not explain Magic City’s decision to delay for so long in making that determination. An unexplained delay in ordering a transcript is simply not a unique or extraordinary circumstance which would justify a finding of excusable neglect. Instead, as in Hagert, it is an omission which does not excuse inaction. Thus, the affidavit offers no actual evidence of excusable neglect and the trial court’s order contains no reasoning, beyond its incorporation of the affidavit, to explain its conclusion excusable neglect existed. Therefore, we conclude the trial court abused its discretion in allowing Magic City an extension of time to file a notice of appeal.

[¶ 28] We conclude Magic City’s notice of appeal filed on April 26, 1999, was untimely because the trial court’s extension was an abuse of discretion. Thus, this Court lacks jurisdiction to review the judgment entered by the trial court.

IV.

[¶ 29] In this case, Magic City failed to provide the required level of particularity in the motion it filed and also disregarded numerous filing deadlines established by our rules. As a consequence, this Court is without jurisdiction to hear its appeal from the order denying the motions and from the judgment. We, therefore, dismiss.

[¶ 30] CAROL RONNING KAPSNER, DALE V. SANDSTROM, JJ. concur.

VANDE WALLE, Chief Justice,

concurring in part and dissenting in part.

[¶ 31] I concur in the result reached in parts I and II of the majority opinion. I respectfully dissent to part III and would affirm the trial court’s order granting the motion for extension of time to file a notice of appeal.

[¶ 32] Although I agree with the majority’s extensive analysis of Magic City’s motion for a new trial or judgment notwithstanding the verdict, and its conclusion that the first motion failed as a motion because it did not state its grounds with particularity, and the second motion was not timely, the analysis does not require we reverse on the issue of excusable neglect in the appeal from the judgment. To the contrary, I believe the extensive analysis required suggests we affirm rather than reverse on the issue of excusable neglect. As the majority notes, we apply the abuse of discretion standard of review on appeal from an order granting a motion for extension of time in which to file an appeal. Although Magic City undoubtedly made some erroneous assumptions in filing the motions and the notice of appeal, I am not convinced the trial court abused its discretion in extending the time in which to appeal. The matter of the trial transcript permeated the proceedings and was intertwined with the filings of the motions as well as with the appeal. Had the first motion been complete or the second motion been timely made, either would have tolled the time for filing a notice of appeal under N.D.R.App.P.4(a). In this instance, where both the appellant and the trial court believed the motions for JAML or a new trial tolled the time for appeal, and granted the extension of time to appeal as a result of excusable neglect, I defer to the judgment of the trial court and conclude the trial court did not abuse its discretion in granting the extension.

[¶ 33] We have said an abuse of discretion occurs “only when [the trial court] acts in an arbitrary, unconscionable, or unreasonable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination;” Grinaker v. Grinaker, 553 N.W.2d 204, 207 (N.D.1996). Although we disagree with the trial court’s analysis as to the form and timely filing of the motions, that does not mean the analysis is, nor would I characterize the trial court’s order granting the motion to extend the time for appeal as, arbitrary, unconscionable, or unreasonable, nor would I characterize it as irrational under these circumstances. Because we prefer to hear appeals on their merits, e.g., Liebelt v. Saby, 279 N.W.2d 881, 884 (N.D.1979), and we construe the statutes and the rules governing the right to appeal liberally, e.g., First Trust v. Conway, 345 N.W.2d 838 (N.D.1984), we should allow the trial court wide discretion when it grants an extension of time in which to appeal.

[¶ 34] The majority opinion cites several cases in which we have affirmed a trial court’s denial of the extension of time in which to appeal. I am aware of no cases, prior to this case, in which we have reversed an order granting the extension. Mistakes may constitute excusable neglect. See, e.g., K & K Implement v. First Nat. Bank, 501 N.W.2d 734 (N.D.1993) (allowing plaintiff to file late notice of appeal as to remaining defendants because plaintiff and attorney clearly intended to appeal judgment as to all defendants); Vorachek v. Citizens State Bank of Lankin, 421 N.W.2d 45 (N.D.1988) (allowing defendant filing untimely notice of appeal to benefit from Supreme Court’s determination on appeal). Here, too, the intent of Magic City was clear and I would not reverse in this case.

[¶ 35] With regard to the merits of the appeal from the judgment, Magic City complains that Schaan did not prove discharge based on discrimination due to age, that Schaan did not establish the essential element of replacement by a younger employer, and that the verdict form and supporting instructions do not properly frame the discharge issue. The final instructions and verdict form were not objected to at trial yet Magic City complains no “at-will employment” instruction was given. None was requested at trial. Compare Schuhmacher v. North Dakota Hosp. Ass’n., 528 N.W.2d 374, 382 (N.D.1995) (reversing jury verdict for among other matters, the refusal by the trial court to instruct on the “at-will” termination statute, N.D.C.C. § 34-03-01 when requested). Magic City raised the issue in a post-trial brief but that brief was filed after the decision. Compare Matter of Estate of Luken, 551 N.W.2d 794, 799 (N.D.1996) (holding issue raised in post-trial brief which trial court considered before issuing its order is properly before Supreme Court on appeal).

[¶ 36] The evidence combined with the instructions and jury form which became the “law of the case,” e.g., Erickson v. Schwan, 453 N.W.2d 765, 769 (N.D.1990); Jore v. Saturday Night Club, Inc., 227 N.W.2d 889 (N.D.1975); Rule 51, N.D.R.Crim.P., arguably support the jury verdict. Because we view the verdict in light of the established law of the case, c.f., Deichert v. Fitch, 424 N.W.2d 903, 905 (N.D.1988), I would affirm the judgment.

[¶ 37] WILLIAM A. NEUMANN, J., concurs.