author: NEUMANN, Justice. MARING, Justice,

text:
    2003 ND 60
    Beverly LESMEISTER, Claimant and Appellee, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellant, and Lutheran Home of the Good Shepherd, Respondent.
    No. 20020265.
    Supreme Court of North Dakota.
    April 15, 2003.

      Daniel E. Phillips, Schneider, Schneider & Phillips, Fargo, for claimant and appel-lee.
    Leo F.J. Wilking, Special Assistant Attorney General, Nilles, Hansen & Davies, Fargo, for appellant.
   NEUMANN, Justice.

[¶ 1] The North Dakota Workers Compensation Bureau appeals from a district court judgment reversing a Bureau order denying Beverly Lesmeister disability benefits on her reapplication for a 1983 work injury and on her application for a 1999 work injury. We hold the Bureau’s findings that Lesmeister was terminated for misconduct and did not sustain an actual wage loss caused by any significant worsening of her 1983 work injury and that she was not entitled to disability benefits as a result of her 1999 work injury are supported by a preponderance of evidence. We reverse.

I

[¶ 2] In 1983, Lesmeister injured her lower back while lifting a patient into bed dining the course of her employment as an LPN at the City Hospital in New Rockford. The Bureau accepted liability for Lesmeister’s back injury, and thereafter paid her medical benefits and periodically paid her total and partial disability benefits. In 1985, Lesmeister began working at the Lutheran Home of the Good Shepherd, a nursing home in New Rockford. After many years of low back pain and periodic receipt of total and partial disability benefits, Lesmeister underwent back surgery in February 1996 and returned to work at Good Shepherd that summer. Lesmeister also had a history of right ankle problems, and in September 1998, Dr. Bruce Piatt performed a “[rjight ankle exploration and debridement of flexor hal-lucis longus tendon.” In late 1998 and early 1999, Lesmeister’s back condition worsened, and she completed a three-week chronic pain management program in March 1999. Lesmeister did not work from March 8, 1999 through June 1, 1999, and she received total disability benefits during that time.

[¶ 3] After Lesmeister completed the pain management program, the Bureau’s vocational rehabilitation provider, CorVel, assisted her in returning to work at Good Shepherd. Am April 1999 report by CorV-el’s Mike Almquist stated “there [were] many problems with employer and injured worker. The shifts are over eight hours and injured worker is restricted to eight hours per day. A mediator is needed to work through the problems or she will lose her job.” Almquist’s report further provided:

I met with Mr. Tim Hager, [Good Shepherd] Administrator and Ms. [Vicky] Richter, [Good Shepherd] Director of Nursing on April 8, 1999. I met with Ms. Lesmeister at her home on April 9, 1999. I met with all parties in a meeting held on Monday, April 12, 1999. At the latter meeting it was decided that Ms. Lesmeister would be taken off the schedule and not allowed to work until she could work a full work day, the hours it takes for the work to be done. We agreed that I would contact both Dr. [Scott] Turner[, the physician treating Lesmeister’s back,] and Dr. Piatt to see if they would release Ms. Lesmeister to work part time, 3 days per week but full shifts on those particular days. The employer seemed willing to schedule her part time and hopefully work to full time. The employer feels that if Ms. Lesmeister really wants to work she will convince the doctors that she can give it a trial basis.

[¶ 4] Thereafter, Dr. Turner, in consultation with Dr. Piatt, released Lesmeister to return to work on June 1, 1999, at a sedentary-light / light level on the night shift with a maximum of three nights in a row followed by one to two nights off. Lesmeister returned to work at Good Shepherd under those restrictions on June 1, 1999, and her disability benefits were terminated in June 1999. The parties agree Dr. Turner’s June 1, 1999 work release is the benchmark for determining whether or not Lesmeister sustained a significant change in her compensable medical condition under N.D.C.C. § 65-05-08(1).

[¶ 5] In the ensuing months, Lesmeis-ter continued to seek medical treatment for her back. On June 9, 1999, Dr. Turner saw Lesmeister, and he reported she had increased pain with increased activity and she described a knife-like pain in her back. Dr. Turner restricted Lesmeister from crawling and required her to get help releasing brakes on beds. On July 12, 1999, and on August 12, 1999, Dr. Turner saw Lesmeister, and he continued her work restrictions.

[¶ 6] On September 1, 1999, Lesmeis-ter tripped on molding during the course of her employment at Good Shepherd. Dr. James M. Craig initially treated Les-meister for this injury on September 10. Dr. Craig reported a “muscular ligamen-tous strain to the right ankle with secondary pain to the right calf and right thigh and exacerbation of pain to the lower back,” and took Lesmeister off work. On September 14, Dr. Turner saw Lesmeister, and he noted she experienced increased low back pain and right anHe pain. Dr. Piatt also saw Lesmeister on September 14, and he reported she had “a little sprain of the ankle.” On September 15, Dr. Craig saw Lesmeister, and he reported she felt “significantly better and essentially turned back to its normal condition.” Dr. Craig released Lesmeister to work under the previous restrictions.

[¶ 7] On October 14, 1999, Lesmeister saw Dr. Turner with complaints of increased neck, low back, ankle, and toe pain. On October 14, Dr. Piatt also saw Lesmeister, and he reported she had dropped a fifty pound camshaft on her right toe in a non-work related injury, she was having pain in the toe as well as the posterior medial ankle, and the pain in her ankle had not really resolved much. Dr. Piatt suggested a consultation at the University of Minnesota.

[¶ 8] On October 18, 1999, Lesmeister tripped on electrical cords during the course of her employment at Good Shepherd. On November 4, 1999, Dr. Turner saw Lesmeister, and he reported she had tripped on electrical cords at work, which flared up her back pain. Dr. Turner reported Lesmeister complained of “knife-like pain” in her back, severe discomfort in her left lower extremity to the knee, right leg pain with numbness in her toes, sleep loss, and trouble lifting her right leg. Dr. Turner noted Lesmeister arose from a seated to a standing position with “slight difficulty.” On November 10, Dr. Craig saw Lesmeister, and he reported her back injury was exacerbated by the October 18, 1999 work-related injury. Dr. Craig diagnosed a “workman’s comp back injury with exacerbation on 10-18-99, nonresponsive to outpatient therapy,” and admitted her to a hospital for physical therapy, pain medication, and muscle relaxants. However, Dr. Craig discharged Lesmeister on November 11, indicating the Bureau “apparently reviewed her condition and felt she was not a candidate for inpatient therapy and ... she could be treated as an outpatient.” On November 15, a physical therapist encouraged Lesmeister to “... avoid sitting for more than 30 min., not to do any lifting, to be laying prone on elbows for 5-10 min. several times per day and to be as active as she can w/o increasing her pain including walking.” On November 19, Dr. Craig saw Lesmeister, and he reported her pain was “about the same.” On November 23, Dr. Turner saw Lesmeister, and he reported she was still having back discomfort and knife-like pain, and she had some difficulty getting up out of a chair.

[¶ 9] Meanwhile, in November 1999, a co-worker reported Lesmeister had slapped a patient. Vicky Richter, the Director of Nursing at Good Shepherd, completed an investigative report in which she was “unable to determine” if the slapping incident occurred. Richter and Good Shepherd Administrator Timothy Hagar contacted the State Board of Nursing and were advised there was no way to prove guilt or innocence for the investigation. On November 29, 1999, Good Shepherd terminated Lesmeister’s at will employment “without cause.”

[¶ 10] On December 9, 1999, Dr. Turner saw Lesmeister, and he reported she was still having knife-like pain in her back and trouble sleeping. Dr. Turner reported no change in physical findings from Les-meister’s last visit. On December 21, Dr. Turner again saw Lesmeister, and he reported little change from her last visit. Dr. Turner recommended that Lesmeister “may want to consider Social Security Disability.” On December 21, Dr. Piatt also saw Lesmeister, and he reported:

Patient with right ankle who at this time appears to be doing pretty well. I discussed with her that I think her best option for her future is to kind of modify her activities and would continue her on a work program similar to what she had been. Would allow her to weightbear as tolerated on the ankle although would keep her hours down to less than eight hours a shift with frequent times where she can get off her feet as necessary. Would also have her avoid climbing, crawling, kneeling. Would not have her pushing or pulling or lifting more than just a couple of pounds, maybe up to 10 pounds. Have also had it where it worked very nicely for her in the past to have days off in between her days at work so that she is working kind of an every other day type pattern as this allows her ankle and foot to recover and has helped to control the symptoms. I would keep this as kind of a permanent restriction at this time.

[¶ 11] In January 2000, Lesmeister saw Dr. Thomas Wise and Dr. Chris Coetzee at the University of Minnesota. Their assessment was “Right ankle pain. We do not feel she has an exacerbation of her tendinitis, based on her physical exam. We feel this is rather a residual symptom from an ankle sprain.” They recommended “no restrictions in regard to her ankle. We instructed her to do activities as functionally tolerated and to continue her physical therapy.”

[¶ 12] On February 17, 2000, Lesmeis-ter saw her regular physician, Dr. Patrick Moore, who reported Lesmeister continues to experience low back pain with numbness in her right foot and diagnosed her with chronic low back pain, sleep disorder, depression, anxiety, and hypothyroidism. Dr. Moore encouraged Lesmeister to continue the disability application process. After seeing Lesmeister on March 23, 2000, Dr. Moore wrote to the Bureau to clarify her long-term picture. Dr. Moore indicated Lesmeister’s “status has not improved in over a year, and it is felt that she has reached maximum medical benefit, and in essence, because of her restrictions, is unemployable in her current occupation.” Dr. Moore saw Lesmeister on April 27, 2000, and he reported “chronic work-related low back pain.” On September 9, 2000, Dr. Moore noted Lesmeister continued to have a great deal of difficulty with her right knee and ankle pain and “[p]retty much any type of activity causes ankle, knee, or back pain to flare up.” Dr. Moore continued Lesmeister’s work restrictions. On October 5, 2000, Dr. Moore recommended Lesmeister continue with her present work restrictions and try to find work within those guidelines.

[¶ 13] In an April 3, 2001 letter to Les-meister’s counsel, Dr. Moore stated Les-meister could walk or stand only 2-4 hours out of an 8-hour day; could lift less than 10 pounds; could sit for no more than 4 hours out of an 8-hour day; could not bend, squat, or crawl; could not push or pull greater than 10 pounds with her upper or lower extremities; and could not do more than sedentary work on a limited basis. In a June 29, 2001 letter to Les-meister’s counsel, Dr. Moore stated Les-meister had a significant change in her back condition in November 1999, and as a result of that change, she was unable to perform her job at the nursing home since November 29,1999.

[¶ 14] The Bureau denied Lesmeister’s reapplication for disability benefits for her 1983 work injury, and she requested a formal hearing. Lesmeister had also filed a claim for her September 1, 1999 work injury. The Bureau accepted liability and paid medical benefits for that claim, but did not pay her disability benefits because she did not miss work for five consecutive days. See N.D.C.C. § 65-05-08. Les-meister subsequently requested disability benefits for her 1999 work injury. The Bureau denied Lesmeister disability benefits-for that injury, and she requested a formal hearing.

[¶ 15] After a formal hearing, an ALJ recommended denying Lesmeister disability benefits on her reapplication for the 1983 work injury and on her application for the 1999 work injury. The ALJ recommended finding Lesmeister was able to perform her job duties up to the time she was terminated from her employment on November 29, 1999; she was terminated for reasons unrelated to her compensable work injury; she had not suffered a significant change in her compensable medical

condition after her disability benefits were terminated in June 1999; and any wage loss sustained by Lesmeister was unrelated to any significant change in her com-pensable medical condition. The ALJ rejected Dr. Moore’s opinion that Lesmeister had a significant worsening in her back condition in November 1999, concluding his opinion was contrary to evidence Les-meister was able to do her job until she was terminated, to Dr. Craig’s November 19, 1999 note that Lesmeister’s condition was “about the same” to medical reports that she had experienced “knife-like pain” in her back since December 1998, and to Dr. Piatt’s December 21, 1999 note that Lesmeister was “not having any significant amount of pain” and “appears to be doing pretty well.” The ALJ also found Les-meister was terminated for misconduct, and even if there had been a significant change in her compensable medical condition, she had failed to prove she sustained an actual wage loss caused by the significant change in her compensable medical condition.

[¶ 16] The Bureau modified the ALJ’s recommendation and denied Lesmeister disability benefits on her reapplication for the 1983 work injury and on her application for the 1999 work injury. The Bureau found Lesmeister was able to perform her job duties up to the time she was terminated from her employment on November 29, 1999; she was terminated from her employment for reasons unrelated to the com-pensable injury to her back or her right ankle; she failed to show she suffered a significant worsening of her back condition after June 1999, or she missed five consecutive days of work for her right ankle; any wage loss sustained by Lesmeister was unrelated to any alleged significant worsening of her back condition; and she had no wage loss related to her right ankle injury. The Bureau adopted the ALJ’s rejection of Dr. Moore’s opinion that Les-meister had a significant worsening of her back condition after November 1999, concluding Dr. Moore’s opinion was contrary to evidence Lesmeister was able to do her work up to the time of her termination and contrary to other evidence that her back condition was about the same in November 1999. The Bureau adopted the ALJ’s finding that Lesmeister was not terminated for her compensable medical condition, but rather for misconduct. The Bureau also found Lesmeister’s September 1, 1999 work injury did not preclude her from working after November 29, 1999, and denied her application for disability benefits for that injury.

[¶ 17] The district court reversed the Bureau’s order. The court concluded the Bureau’s rejection of Dr. Moore’s opinion was not erroneous, but the remainder of the medical evidence did not support the Bureau’s decision that Lesmeister had not sustained a significant change in her com-pensable medical condition. The court also concluded the Bureau’s finding Les-meister was terminated for reasons related to the alleged abuse incident was not supported by the record, and a “complete review of the record shows Lesmeister was unable to perform her job due to her physical condition, and the Bureau’s findings and conclusions that Lesmeister’s wage loss was unrelated to her worsening condition are not supported by the evidence.” The court directed the Bureau to enter an order finding Lesmeister disabled since November 29, 1999, and remanded to the Bureau to award disability benefits consistent with that order. The Bureau appealed.

II

[¶ 18] Under N.D.C.C. § 28-32-46, a district court must affirm an administrative agency order unless:

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

Under N.D.C.C. § 28-32-49, this Court reviews the district court judgment in the same manner. See Grand Forks Prof'l Baseball, Inc. v. North Dakota Workers Comp. Bureau, 2002 ND 204, ¶ 8, 654 N.W.2d 426.

[¶ 19] We affirm the Bureau’s decision unless its findings of fact are not supported by a preponderance of the evidence, or its conclusions are not supported by its findings. Ollom v. North Dakota Workers Comp. Bureau, 529 N.W.2d 876, 878 (N.D.1995). In evaluating the Bureau’s findings of fact, we do not make independent findings or substitute our judgment for that of the Bureau; rather we determine only whether a reasoning mind reasonably could have determined the factual conclusions reached were proved by the weight of the evidence from the entire record. Meljie v. North Dakota Workers Comp. Bureau, 2002 ND 174, ¶ 3, 653 N.W.2d 62.

[¶ 20] The adversarial concept has only limited application to claims for workers compensation benefits, and the Bureau must consider the entire medical record and adequately explain its reason for disregarding medical evidence favorable to the claimant. See Negaard-Cooley v. North Dakota Workers Comp. Bureau, 2000 ND 122, ¶ 18, 611 N.W.2d 898; Flink v. North Dakota Workers Comp. Bureau, 1998 ND 11, ¶ 12, 574 N.W.2d 784; Kopp v. North Dakota Workers Comp. Bureau, 462 N.W.2d 132, 135 (N.D.1990). See also N.D.C.C. § 28-32-46(7) (agency’s findings must sufficiently address appellant’s evidence). In Kopp, at 135 (citations omitted), we explained:

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

III

[IT 21] The Bureau argues the district court erred in weighing conflicting medical opinions and substituting its judgment for that of the Bureau. The Bureau argues a preponderance of evidence supports the Bureau’s findings Lesmeister did not experience a significant worsening of her back injury and Lesmeister did not sustain an actual wage loss as a result of any significant worsening in her back condition. Lesmeister responds the Bureau’s decision is not in accordance with the law, the Bureau’s findings do not sufficiently address the evidence presented by her, and the Bureau’s findings are not supported by a preponderance of the evidence. She argues, regardless of the stated reason for her termination, the only medical evidence in this record is that her condition significantly worsened in 1999, which caused her to be physically unable to perform even her modified LPN position and resulted in an actual wage loss. She argues the Bureau improperly rejected medical evidence under the guise of weighing the evidence and failed to sufficiently address her evidence.

A

[¶ 22] Under N.D.C.C. § 65-01-11, a claimant must establish by a preponderance of the evidence the right to receive benefits from the workers compensation fund. When a claimant’s disability benefits have been terminated, the claimant may reapply to begin payment again under N.D.C.C. § 65-05-08(1), which governs reapplications for benefits and provides:

When disability benefits are discontinued, the bureau may not begin payment again unless the injured employee files a reapplication for disability benefits on a form supplied by the bureau. In case of reapplication, the award may commence no more than thirty days before the date of reapplication. Disability benefits must be reinstated upon proof by the injured employee that:
a. The employee has sustained a significant change in the compensable medical condition;
b. The employee has sustained an actual wage loss caused by the signifi- ■ cant change in the compensable medical condition; and
c. The employee has not retired or voluntarily withdrawn from the job market as defined in section 65-05-09.8.

As relevant to this case, claimants reapplying for disability benefits under N.D.C.C. § 65-05-08(1) must show both a significant change in their compensable medical condition and an actual wage loss caused by the significant change in their compensable medical condition. See Gronfur v. North Dakota Workers Comp. Fund, 2008 ND 42, ¶¶ 6, 11, 658 N.W.2d 337; Baier v. North Dakota Workers Comp. Bureau, 2000 ND 78, ¶¶ 11-12, 609 N.W.2d 722. In Gronfur, at ¶¶ 11-12, a majority of this Court held that, in order to show actual wage loss, claimants must show they were earning wages from employment when the significant change in compensable medical condition occurred and the change in medical condition caused at least a partial loss of those wages.

[¶ 23] Here, the Bureau adopted the ALJ’s recommendation that even if Lesmeister had proven a significant change in her compensable medical condition, that change did not cause her to lose wages because she was not terminated for her medical condition, but rather for misconduct, and the greater weight of evidence showed she was able to do her job up to the date she was terminated. Tim Hager, the administrator at Good Shepherd, testified he did not explicitly terminate Lesmeister for the slapping incident, but it was “definitely a trigger” to her termination, and she was terminated “without cause” because:

There were two reasons. One of them is, if you’re going to terminate with cause, you better have everything all documented so that you have exact quotes from people and all those types of things. The second reason is, is especially with the trigger being that abuse investigation and the fact than, even though it couldn’t be proved, I had some real strong concerns about it. I didn’t want that on her record for finding a job again, and I’m not required to terminate for cause, and so I’m not required to put it on her record. And as I indicated that said we would not be keeping that investigation with her personnel file. So that allows her to have a fairly clear record for going on to other employment.

[¶ 24] On this record, we need not decide whether Lesmeister sustained a significant change in her compensable medical condition, because even if she did sustain a significant change, we conclude a reasoning mind could reasonably conclude, as the Bureau did, that Lesmeister was terminated for misconduct and that she therefore did not sustain an actual wage loss caused by a significant change in her compensable medical condition. We conclude the Bureau’s findings provide an adequate explanation for its decision. Because the Bureau found Les-meister did not sustain an actual wage loss caused by any significant change in her compensable medical condition, we conclude the Bureau did not err in denying Lesmeister’s reapplication for disability benefits for her 1983 work injury.

B

[¶ 25] The Bureau argues it properly denied Lesmeister’s application for disability benefits for her September 1, 1999 work injury. Lesmeister did not initially receive disability benefits for her September 1, 1999 work injury because she was not off work for five consecutive days, see N.D.C.C. § 65-05-08 (“No benefits may be paid for disability, the duration of which is less than five consecutive calendar days”), and she subsequently applied for disability benefits for that work injury.

[¶ 26] Disability means a loss of earnings capacity and may be permanent total, temporary total, or partial. N.D.C.C. § 65-01-02(15). In Saakian v. North Dakota Workers Comp. Bureau, 1998 ND 227 ¶ 23, 587 N.W.2d 166 (citations omitted), we said

A “total disability” exists when a worker is unable, solely because of a job-related injury, to perform or obtain any substantial amount of labor in that particular line of work, or in any other for which the worker would be fitted. A worker who is medically able to return to work is not totally disabled. To establish a “partial disability,” there should be a physical disability, the employee should be able to work subject to the disability, and there should be an actual loss of earning capacity that is causally related to the disability.

[¶ 27] Here, Dr. Craig initially treated Lesmeister for her September 1, 1999 work injury. He reported a “muscular ligamentous strain to the right ankle with secondary pain to the right calf and right thigh and exacerbation of pain to the lower back,” and took her off work. On September 14, 1999, Dr. Piatt diagnosed Lesmeis-ter with “a little sprain of the ankle.” According to Dr. Craig’s September 15, 1999 note, Lesmeister’s ankle was then “significantly better and essentially turned back to its normal condition,” and he returned her to work. In October 1999, Dr. Piatt suggested a referral to a physician at the University of Minnesota. On December 21, 1999, Dr. Piatt noted Lesmeister was “actually doing pretty well ... [s]he is not having any significant amount of pain” and she appeared to be doing pretty well. In January 2000, Lesmeister was seen at the University of Minnesota by Dr. Thomas Wise and Dr. Chris Coetzee. They concluded Lesmeister had right ankle pain which was a residual symptom from her ankle sprain, not an exacerbation of her tendinitis, and they recommended no restrictions in regard to her ankle.

[¶ 28] There was evidence that Les-meister was able to work despite her September 1, 1999 work injury. We do not reweigh the medical evidence about Les-meister’s 1999 work injury. Rather, we conclude a reasoning mind could reasonably conclude, as the Bureau did, that Lesmeister was not entitled to disability benefits as a result of her 1999 work injury. We therefore conclude the Bureau did not err in denying Lesmeister’s application for disability benefits for her 1999 work injury.

C

[¶ 29] Lesmeister argues even if she was terminated for misconduct, her disability benefits should be reinstated under Wendt v. North Dakota Workers Comp. Bureau, 467 N.W.2d 720 (N.D.1991), once her work-related condition disables her from working.

[¶ 30] In Wendt, 467 N.W.2d at 728 (citations omitted), this Court said:

Although it has been stated rather broadly in some decisions that “an employee who is discharged for just cause is not entitled to workers’ compensation benefits,” we agree with those courts which hold that a discharge for just cause does not automatically bar an employee from receiving disability benefits.

We adopt the approach set forth by the Minnesota Supreme Court:

“[A] justifiable discharge for misconduct suspends an injured employee’s right to wage loss benefits; but the suspension of entitlement to wage loss benefits will be lifted once it has become demonstrable that the employee’s work-related disability is the cause of the employee’s inability to find or hold new employment. Such a determination should be made upon consideration of the totality of the circumstances including the usual work search ‘requirements.’ ”

In this case, Wendt does not dispute that he was discharged by Steiger for just cause and does not claim that the discharge was in any way related to his back injury.

We conclude that the Bureau could reasonably find that Wendt’s loss of earning capacity was causally related to his discharge for cause rather than from his disability. Wendt may reapply for disability benefits any time in the future when he can demonstrate a causal connection between his disability and a loss in earning capacity.

[¶ 31] However, Wendt was decided before N.D.C.C. § 65-05-08(1), was amended in 1991 N.D. Sess. Laws, ch. 714, § 43 and 1997 N.D. Sess. Laws ch. 542, § 1, to require reapplicants for disability benefits to show an actual wage loss caused by the significant change in the compensable medical condition. See Gronfur, 2003 ND 42, ¶14, 658 N.W.2d 337. The Bureau found Lesmeister was not entitled to disability benefits on her reapplication for her 1983 work injury and on her application for her 1999 work injury, and under the requisite deferential standard of review, we have sustained those findings. However, Lesmeister is not precluded from reapplying for disability benefits for her 1983 work injury any time in the future when she can satisfy the requirements of N.D.C.C. § 65-05-08(1). See Wendt, 467 N.W.2d at 728. See also Lass v. North Dakota Workmen’s Comp. Bureau, 415 N.W.2d 796, 800-01 (N.D.1987).

IV

[¶ 32] We reverse the district court judgment and remand for entry of judgment affirming the Bureau decision.

[¶ 33] GERALD W. VANDE WALLE, C.J, WILLIAM A. NEUMANN, CAROL RONNING KAPSNER, and DALE V. SANDSTROM, JJ., concur.

MARING, Justice,

dissenting in part and concurring in part.

[¶ 34] I concur in part II B and respectfully dissent from the remainder of the majority opinion.

[¶ 35] In Wendt v. North Dakota Workers Comp. Bureau, 467 N.W.2d 720, 728 (N.D.1991) (citations omitted), we held: “we agree with those courts which hold that a discharge for just cause does not automatically bar an employee from receiving disability benefits.” We further held:

“[A] justifiable discharge for misconduct suspends an injured employee’s right to wage loss benefits; but the suspension of entitlement to wage loss benefits will be lifted once it has become demonstrable that the employee’s work-related disability is the cause of the employee’s inability to find or hold new employment. Such a determination should be made upon consideration of the totality of the circumstances including the usual work search ‘requirements.’ ”

Id. (citation omitted). In Wendt, we adopted this approach and rejected the approach of other jurisdictions that an employee who has been terminated for just cause is not entitled to any workers compensation benefits. Id. at 728. We noted that Professor Larson, in his treatise, discusses the inappropriateness of total forfeiture of all compensation rights where the claimant, through his own fault, lost his job for which he was concededly fitted, but his present inability to get a job is solely because of his work-related physical impairment. Id. at 727-28 (quoting 2 Larson, The Law of Workmen’s Compensation § 57.64(a), at pp. 10-264 through 10-269 (1989)). Therefore, the Bureau’s finding that because Lesmeister was terminated from her employment for just cause she cannot receive disability benefits does not necessarily follow. Also, termination for cause does not conclusively establish that she was medically able to perform the duties of her employment at the Good Shepherd nursing home or generally as an LPN.

[¶ 36] The issue in this case with regard to her back injury is whether Les-meister is entitled to permanent total or partial disability benefits under N.D.C.C. § 65-05-09 or N.D.C.C. § 65-05-10. Generally, we have set forth three factors for determining whether an individual is entitled to partial disability benefits:

First, there should be a physical disability; second, the disability should be partial, or in other words, the employee should be able to work subject to the disability; and third, there should be an actual loss of earning capacity that is causally related to the disability.

Wendt, at 727 (quoting Jimison v. North Dakota Workmen’s Comp. Bureau, 331 N.W.2d 822, 827 n. 5 (N.D.1983)). For total disability benefits, an employee must establish he is “unable, solely because of a job-related injury, to perform or obtain any substantial amount of labor in that particular line of work, or in any other for which the worker would be fitted.” Saakian v. North Dakota Workers Comp. Bureau, 1998 ND 227, ¶23, 587 N.W.2d 166.

[¶ 37] Because this is a reapplication for benefits, under N.D.C.C. § 65-05-01, Lesmeister must first establish a significant change in her compensable back injury.

[¶ 38] After a thorough review of the medical evidence and history in this record, I am of the opinion a reasoning mind could not reasonably conclude Lesmeister did not suffer a significant worsening of her back condition. In fact, there is no evidence to the contrary. Lesmeister originally injured her back in 1983. Thereafter, she received a great deal of medical treatment and was at times partially disabled and totally disabled. She underwent a laminectomy at L4-L5 and a fusion at L5-S1 in February 1996. She returned to work in the summer of 1996, but her condition worsened in March 1999. She completed a three-week chronic pain management program March 26,1999. On March 23, 2000, Dr. Moore told the Bureau that Lesmeister was unemployable in her current occupation and on April 3, 2001, he stated that in his opinion:

1.At this point in time, I feel that Bev has a chronic back pain syndrome secondary to her disk disease as well as the radiculopathy and given the length of time since her initial injury in 1983 and the reinjury in September of 1999, I do not feel that Bev is likely to have any additional improvement. She has been extremely faithful in doing her back exercises, taking her medication, and keeping her appointments for therapy and chronic pain management and, despite all of this, there has not ever been any significant improvement in her symptoms.
2. Her chronic back and ankle problem have definitely limited her ability to walk or stand in an eight-hour day. I think it would be totally unrealistic to expect that Mrs. Lesmeister would be able to walk or stand for even as little as two to four hours in an eight-hour work day.
3. ‘Mrs. Lesmeister’s condition definitely affects her ability to do any lifting, pushing, pulling, or carrying because of the reactivation of her symptoms. I would think that a weight of less than ten pounds would be the limit.
4. I feel Mrs. Lesmeister’s condition and sjunptoms would prevent her from sitting beyond four hours in an eight-hour work day.
5. Any bending, squatting, or crawling, I would definitely expect, would aggravate her symptoms.
6. I feel that Mrs. Lesmeister’s condition limits her ability to use both upper and lower extremities to reach, push, or pull to any significant degree and anything greater than ten pounds in weight.
7. Mrs. Lesmeister definitely has chronic pain and I have never felt that she has been dishonest or deceitful in relating her symptoms and limitations they have placed on her. Definitely at times when her symptoms are worse her muscle spasm and limitation of range of motion is limited. The level of her pain definitely limits her ability to perform substantial gainful employment. I do not feel that she would be able to perform anything beyond sedentary work on a limited basis because of the amount of time she needs to spend in exercising, bending, and stretching to prevent her symptoms from worsening. I do not feel that she fits into the light work category.
8. Mrs. Lesmeister definitely suffers from depression which I feel is primarily related to the limitations her back problem has placed on her career and her ability to work in a vocation which she loves dearly. Certainly the depression may have some affect on her ability to be gainfully employed, but I do not think she would be experiencing the depression if she did not have the chronic back and ankle problems.
9. I definitely do not feel that Mrs. Lesmeister is capable of working in the light level of exertion. I base this on the fact that her condition in almost a year and a half has not improved despite all of the efforts put forth by her in exercising good back care and following through with her medical appointments.
10. I have always gotten the impression that if there were any way possible that Bev would be able to return to work and be gainfully employed without adversely affecting her health and worsening her back condition she would love to do that but, unfortunately, at this point I do not feel that this is realistic. I would, therefore, strongly support her claim for social security disability benefits.

Dr. Craig saw Lesmeister after an additional work injury on September 1, 1999. Dr. Craig took her off work because of her ankle injury and the exacerbation of her back injury. She was returned to work on September 15, 1999. On October 19, 1999, she tripped on some electrical cords which flared up her back pain. She saw Dr. Turner for “knife-like pain” and severe discomfort in her left lower extremity right leg pain and an inability to sleep. Her pain forced her to Dr. Craig on November 10, 1999, with complaints of severe back and ankle pain and an inability to sleep due to pain. Dr. Craig diagnosed her with a back injury exacerbated on 10-18-99 and noted it was unresponsive to outpatient therapy. Dr. Craig placed Les-meister in the hospital. She was discharged on November 11, 1999, because the Bureau would not agree to pay for inpatient therapy. On November 19, 1999, she returned to Dr. Craig still complaining about pain. She said it was “about the same,” but it is obvious she is referring to the pain that she had back on November 10-11, 1999. On November 28, 1999, Dr. Turner, her primary back physician, saw Lesmeister for her back pain and inability to sleep. Dr. Turner had provided work reductions for Lesmeister on June 1, 1999, which included “sed-lightdight [lifting restrictions,] release[d] [to the] night shift [with a] maximum] 3 nights in a row[,] off 1-2 nights, maximum] 3 night [shifts] consecutive.” In December 1999, Dr. Turner advised Lesmeister to apply for Social Security disability benefits. In order to be successful in obtaining Social Security disability benefits, an applicant must establish an “inability to engage in any substantial gainful activity....” 42 U.S.C. § 423(d)(1)(A). The Bureau totally ignored Dr. Turner’s notes and opinions without explanation. Section 28-32-46(7), N.D.C.C., requires the Bureau to address the evidence favorable to the employee. Although the Bureau discredits Dr. Moore’s opinion, it cannot ignore Dr. Turner’s notes and opinions.

[¶ 39] However, even if Lesmeister suffered a significant worsening of her back injury, the Bureau states Lesmeister did not establish “actual wage loss” because she was terminated for cause. The medical evidence, however, indicates she can no longer perform work as an LPN. Having established she is totally disabled from performing her former employment due to physical restrictions caused by her back injury, Lesmeister is entitled to disability benefits. On December 21,1999, when Dr. Turner advised her to seek Social Security disability benefits, he was of the opinion she no longer could perform her work as an LPN or for that matter any other employment for which she may be qualified by training and transferable skills. I continue to adhere to my dissent in Gronfur v. North Dakota Workers Comp. Fund, 2003 ND 42, ¶ 17-20, 658 N.W.2d 337 (Maring, J., dissenting), wherein I state that it is only logical “actual wage loss” can be proven by an inability to gain employment, which in turn can be proven by medical evidence that the employee sustained a physical impairment from a compensable work injury resulting in total disability from work.

[¶ 40] In this case, it is the Bureau’s position that an employee, whose compen-sable medical condition worsens to- the point that working is not advised and who coincidentally is fired, cannot be entitled to workers compensation disability benefits. In other words, the employee must have the doctor’s opinion the medical condition has worsened and has totally disabled him from his work before he is fired. I am of the opinion this is contrary to our decision in Wendt.

[¶ 41] I would affirm the decision of the district court.

[¶ 42] MARY MUEHLEN MARING


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2003 ND 58
    Suzanne Kearns CANNADAY, Plaintiff and Appellee, v. Douglas Edward CANNADAY, Defendant and Appellant.
    No. 20020185.
    Supreme Court of North Dakota.
    April 15, 2003.

      Suzanne Kearns Cannaday, pro se, Lari-more, for plaintiff and appellee; no brief filed.
    Douglas Edward Cannaday (argued), pro se, Vinton, VA, for defendant and appellant.
   MARING, Justice.

[¶ 1] Douglas Cannaday appealed from a judgment revoking his legal separation from Suzanne Cannaday and awarding them a divorce. We hold the 1998 property division was final and not reviewable and the award of spousal support to Suzanne was not clearly erroneous, and we affirm.

I

[¶ 2] Douglas and Suzanne Cannaday were married in October 1967. They have three children of their marriage, all of whom are adults. Douglas is retired from the United States Air Force, but the parties were married during the entire 26 years that Douglas served in the military. Suzanne has a high school education. She followed her husband to various duty stations while he was in the military, raising the children and providing home schooling for them. She also worked at various temporary jobs to supplement the family income.

[¶ 3] The parties were legally separated in November 1998. On December 11, 2001, Douglas moved the court, under N.D.C.C. § 14-06-05, to revoke the parties’ legal separation and to grant them a divorce. After an evidentiary hearing, the district court granted the motion, revoking the separation and granting the parties a divorce on the grounds of irreconcilable differences. The court found the property division and award of spousal support entered as part of the 1998 separation judgment were equitable and refused to alter those decisions. The court, however, clarified the parties’ responsibilities regarding title to the marital home and payment of debt.

II

[¶ 4] Douglas asserts the district court committed several errors in distributing the marital property and in awarding Suzanne spousal support.

[¶ 5] Section 14-05-29, N.D.C.C., provides:

At any time after a decree for separation has been granted, the court may revoke the decree based upon any regulations or restrictions the court imposed in the decree. Application for revocation may be made by either party to the decree. The party making the application for revocation shall provide to the other party to the decree at least ten days’ and not more than twenty days’ notice of the application. Service must be made in the same manner as service of a summons in a civil action. If it appears to the court at the hearing of the application that reconciliation between the parties to the marriage is improbable, the court shall revoke the separation decree and, in lieu of that decree, shall render a decree divorcing the parties. If the court has not previously done so, the court shall provide for the equitable division of the property, shall make orders with respect to any minor children, and may provide for the payment of support to either party by the other.

Under this statute, when the court revokes a separation decree and enters a divorce decree it shall, if not previously done, “provide for the equitable division of the property ... and may provide for the payment of support” by either party. The rules pertaining to the division of property are the same in a separation action as in a divorce action, and the division must be an equitable one. Fedora v. Fedora, 403 N.W.2d 10, 14 (N.D.1987). When the district court grants a separation and makes a distribution which it intends to be final, the separation judgment is binding upon the parties, and it is improper for the court to subsequently alter the property division under the statute. Id. at 15.

Ill

[¶ 6] Douglas asserts the district court erred in awarding Suzanne fifty percent of his military retirement pay. Under N.D.C.C. § 14-05-24, a district court must make an equitable distribution of the property and debts of divorcing parties.

[¶ 7] In awarding Suzanne fifty percent of Douglas’ retirement pension as part of the property division in the November 1998 judgment, the court found:

[Suzanne] and [Douglas] were married the entire time that [Douglas] was in the U.S. Military. [Douglas] retired after 26 years in the U.S.A.F. [Douglas], throughout his military was able to move up in rank retiring as a Sr. MSGT. Sgt., an E-8, a level achieved only by 3% of the military NCO’s according to [Douglas]. The skills, training, and status of his military career development has left [Douglas] in a position of superior marketability for future employment as compared to [Suzanne]. By contrast, [Suzanne], throughout the parties marriage, has not developed any skills, training, education or job marketabilities as compared to [Douglas]. [Suzanne] has only 12 years of schooling completed prior to. the parties marriage. [Suzanne] has followed [Douglas] from duty station to duty station, raising the children as the primary custodial parent, implementing “home schooling” of the children, and acting as homemaker throughout the marriage. [Suzanne] was exclusive caretaker of the children when [Douglas] had TDY duty tours. [Suzanne] otherwise worked “tag along” jobs at various assignment locations to supplement family income as the parties moved from station to station. [Suzanne] currently has no career, and has no retirement of her own. [Suzanne] clearly was in support of this family unit and [Douglas’] military career.

[¶ 8] It appears the district court intended the division of property in 1998 to be a final division. Nothing in that separation judgment indicates it was intended to be only temporary or that the division was subject to modification. Consequently, we hold the division is binding on the parties and not subject to review by the district court in revoking the separation and awarding the parties an absolute decree of divorce. Although the district court, in awarding the divorce decree, reviewed the property division and refused to modify it on the ground it was equitable, we conclude the court’s review constituted harmless error. This Court will not set aside a correct result merely because the district court assigned an incorrect reason, if the result is the same under the correct law and reasoning. Peters-Riemers v. Riemers, 2001 ND 62, ¶ 15, 624 N.W.2d 83.

IV

[¶ 9] Douglas asserts the district court erred in valuing the parties’ marital home at $65,000. Because the home was part of the marital property, and the division was final upon entry of the separation judgment, we conclude it is not subject to review on the appeal from the divorce decree.

V

[¶ 10] Douglas asserts the district court erred in awarding Suzanne $2,354 from the parties’ checking account and also erred in ordering Douglas to pay $4,198 of a Mastercard AT & T debt. Those decisions were made as part of the 1998 judgment, and in the 2002 judgment the court clarified the responsibility of the parties going forward:

The only remaining issues are the refusal of [Douglas] to abide by the terms of the Separation Decree and pay [Suzanne] $4,453 and the need to have [Suzanne] quit claim her interest in the marital home to [Douglas]. [Douglas] has refused to pay [Suzanne] $4,453 as ordered in the Judgment. The Judgment also required the parties to each pay $2,099 towards the AT & T Master-card. [Douglas] maintains he has paid more than his share of $2,099 on the AT & T Mastercard. [Suzanne] admits she has made no payments on this debt because she cannot afford to do so until she receives the $4,453 [Douglas] is to pay her. [Douglas’] Exhibit 10 indicates the current balance on the AT & T Mastercard as of December 7, 2001 was $1,538.14 less the $50 payment in December. Accordingly, [Douglas] has paid approximately $561 toward [Suzanne’s] share of the AT <& T Master-card debt. To simplify matters, the property and debt allocation shall be amended to require! ] [Douglas] to assume full responsibility for the AT & T Mastercard debt. In exchange, [Douglas’] obligation to pay [Suzanne] $4,453 shall be reduced by her share of the AT & T Mastercard debt in the amount of $2,099. A money Judgment shall be entered against [Douglas] for $2,354 with interest!] accruing at 6% annum since November 5,1998. The Judgment shall also be amended to require [Suzanne] to execute whatever legal documents are necessary to transfer her ownership interest in the marital home to [Douglas] within 30 days of entry of Judgment.

We conclude the district court’s clarification of those issues did not disturb the original intent of the 1998 property division, and is not error.

VI

[¶ 11] Douglas asserts the district court erred in awarding Suzanne spousal support of $450 per month for eight years. We summarized the purposes of rehabilitative and permanent spousal support in Walker v. Walker, 2002 ND 187, ¶¶ 14-15, 653 N.W.2d 722:

Under N.D.C.C. § 14-05-24.1, a court “may require one party to pay spousal support to the other party for any period of time.” Property division and spousal support are interrelated, and the Ruff Fischer guidelines also apply when determining whether spousal support should be awarded. Spousal support is aimed at balancing the burdens and disadvantages created by the divorce. Rehabilitative spousal support is ordered to give a disadvantaged spouse an opportunity to become adequately self-supporting through additional training, education or experience. Permanent spousal support is generally appropriate when the disadvantaged spouse cannot be equitably rehabilitated to make up for the opportunities lost in the course of the marriage. Permanent spousal support may also be awarded when the marriage is of long duration and the dependent spouse has health problems or is of such an age that adequate rehabilitation is unlikely.
A disadvantaged spouse is one who has foregone opportunities or lost advantages as a consequence of the marriage and who has contributed during the marriage to the supporting spouse’s increased earning capacity. We have said “[a]ny spouse who remains at home, out of the workforce, in order to maintain a marital residence and act as a homemaker, any parent who remains out of the workforce if only to some degree in order to provide child care, has foregone opportunities and has lost advantages that accrue from work experience and employment history.” “Furthermore, a valid consideration in determining whether a spouse is disadvantaged as a result of the divorce is whether there is a need to equitably balance the burdens created by the divorce where the parties cannot maintain the same standard of living apart as they enjoyed together.”

(Citations omitted.) The district court’s determination of spousal support is a finding of fact that will not be set aside unless clearly erroneous. Orgaard v. Orgaard, 1997 ND 34, ¶5, 559 N.W.2d 546. In considering the circumstances for awarding spousal support, the district court must take into account the needs of the disadvantaged spouse and the supporting spouses needs and ability to pay. Sommer v. Sommer, 2001 ND 191, ¶ 10, 636 N.W.2d 423.

[¶ 12] The findings made by the district court in dividing the military retirement pay are relevant to the issue of spousal support. In addition to those findings, the court made these additional relevant findings in granting the 1998 legal separation:

[Douglas] is currently on track to earn approximately $34,000 gross (before tax) wages for 1998 from his current employment. ...
[Suzanne] is currently operating daycare out of her home.... Her day care operation expense is at approximately $150.00/month, leaving a pre-tax gross income of approximately $600.00 per month.
[Suzanne] is now 50 years old. Rehabilitative spousal support would only leave [Suzanne] employable from 54-55 years of age and beyond as 4 to 5 years is a reasonable period of time for rehabilitation. This would leave [Suzanne] marginally employable or effectively unemployable for the next 10 years or so which further effects her employability....
Because of [Suzanne’s] age, the significant difference in income between the parties, the questionable status of her employability should [Suzanne] undergo rehabilitative measures, mental health/depression issues for [Suzanne], and fault of [Douglas] for failure to assist [Suzanne] in taking the necessary steps to make their home safe and secure for [Suzanne] and because of the other findings stated above, [Suzanne] is awarded spousal support in the amount of $450.00, per month, from [Douglas] for 8 years.

In concluding the spousal support award made in 1998 would not be altered in the 2002 judgment awarding the parties a divorce, the district court found:

The Findings of Fact issued by Judge Smith adequately address why spousal support was ordered and why it was equitable. The circumstances which brought about a spousal support award remain relevant today. [Suzanne’s] adjusted gross income for the year 2000 was $13,104.00.... [Douglas’] adjusted gross income for the year 2000 was $40,149.00.... Further, according to [Douglas’] testimony, he anticipates income of $41,000.00 for 2001. The reason for the income disparity is a result of the marriage as contemplated by the decree of separation.

In 1998, the district court quite obviously awarded spousal support to Suzanne to balance the burdens of disadvantage caused by the divorce. We conclude the district court’s findings in 2002 that the original spousal support award was appropriate and that there was not a change of circumstances justifying a change in the award are not clearly erroneous.

VII

[¶ 13] We hold the 1998 property division was final and not reviewable on appeal from the 2002 divorce decree. We also hold the district court did not err in awarding Suzanne spousal support. We, therefore, affirm the May 7, 2002 judgment of divorce.

[¶ 14] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.

      . Chapter 14-06, N.D.C.C., was repealed by the 2001 legislature, and N.D.C.C. 14-05-29 was enacted, effective August 1, 2001, as the new statute dealing with revocation of separation decrees. S.L.2001, ch. 149, §§ 8 and 13.


author: KAPSNER, Justice.

text:
    2003 ND 59
    Brian ARGABRIGHT, Plaintiff and Appellant, v. Jeffrey G. RODGERS and Rhonda Rodgers, Defendants and Appellees.
    No. 20020246.
    Supreme Court of North Dakota.
    April 15, 2003.

      Robert S. Rau, Bosard, McCutcheon & Rau, Ltd., Minot, for plaintiff and appellant.
    Jeffrey G. Rodgers (argued), pro se, and Rhonda Rodgers, pro se, Towner, for defendants and appellees.
   KAPSNER, Justice.

[¶ 1] Brian Argabright appealed from a district court judgment dismissing, on its merits, his claim against Jeffrey and Rhonda Rodgers for a broker’s commission on the sale of their mobile home. We hold the trial court’s implicit finding that Clayton Gillmore, owner and operator of Discount Mobile Home Sales, Inc. (“Discount”), was Argabright’s ostensible agent for purposes of selling the home is clearly erroneous. We further hold the district court did not err in concluding Argabright was not entitled to attorney fees under the listing agreement. We affirm in part, reverse in part, and remand with instructions the district court enter judgment awarding Argabright a broker’s commission under his listing agreement with the Rodgers.

I

[¶ 2] On August 22, 2000, Argabright, as manager of Mobile Home Listing and Sales (“MHLS”), entered an exclusive fist-ing contract with the Rodgers to sell their mobile home. After the home was fisted, the Rodgers told Argabright they needed to immediately move the home from the lot on which it was located. According to the Rodgers’ testimony, Argabright told them Clayton Gillmore, operator of Discount, could possibly move their mobile home to one of Discount’s lots or to another lot in the area. Upon this advice, Rhonda Rodgers contacted Discount and arranged to have their home moved onto one of Discount’s lots. A Discount salesperson sold the home within a week to a third party. At the closing, Discount received a ten percent commission on the sale. When Argabright discovered the mobile home had been sold through Gillmore at Discount, he sought payment of his commission from the Rodgers under the listing contract. When the Rodgers refused to pay it, Argabright filed this lawsuit for damages.

[¶ 3] After a bench trial, the district court denied Argabright’s claim for a broker’s commission on the sale of the mobile home, and explained its reasoning in its December 26, 2002, memorandum opinion:

It is undisputed that the [Rodgers] had owned a 1986 Medallion 16'x 85' mobile home. It is also undisputed that the parties entered into a contract, whereby [Argabright] was hired as an agent to sell the unit.... The contract was entitled “MHLS Exclusive Listing Contract.” The date it was executed on was August 22, 2000. Certain terms were enumerated on the document, and the commission to be paid was 10% of the sales price....
[T]he [Rodgers] had the mobile home taken to Discount Mobile Homes, which was owned and operated by Clayton [Gillmore]. This occurred on or about September 14th.... [Argabright] must have advised the [Rodgers] to contact Discount Mobile Homes.... [According to testimony of Jeffrey Rodgers, he talked to [Argabright] about where to relocate, and [Argabright] advised to move it to Discount Mobile Homes, since they could handle the removal and would have the space. Consequently, as indicated, the Court believes under these circumstances that [Argabright] advised the [Rodgers] to contact Discount Mobile Homes about relocating their mobile home.
Next, Rhonda Rodgers testified that she had talked to Clayton [Gillmore] at discount Mobile Homes.... Rhonda Rodgers must have explained the circumstances surrounding the move to Mr. [Gillmore], e.g. the urgency, the locked gate, the listing for sale, etc., and the fact MHLS was involved.... [I]f Discount Mobile Homes was to become the new agent to sell for the [Rodgers], then with all of Mr. [Gillmore’s] sales experience he would have had a contract executed. However, no contract was submitted into evidence.... It seems clear then, as Rhonda Rodgers testified, that Clayton [Gillmore] told her that any commission would be worked out between he and [Argabright]. Why else would Clayton [Gillmore] not have a contract signed with the [Rodgers]? Obviously, he knew the [Rodgers] already had an exclusive listing contract with [Argabright].

While the district court did not explicitly use the word “agency,” its explanation contains an implicit finding that Gillmore was Argabright’s ostensible agent for purposes of selling the mobile home and that payment of a commission to him by the Rodgers satisfied their obligation to pay a commission under Argabright’s contract.

[¶ 4] On appeal, Argabright asserts Gillmore was not acting as his agent and the court misconstrued the listing contract in concluding Argabright was not entitled to a commission under the circumstances. The Rodgers concede Argabright had an exclusive listing agreement with them and was entitled to a ten percent commission upon sale of the mobile home. However, they assert they have satisfied their obligation to pay a commission by payment of a commission to Gillmore who, they claim, was acting in concert with Argabright.

II

[¶ 5] A real estate agent who has an exclusive listing agreement and substantially performs is entitled to a commission. Schlossman & Gunkelman, Inc. v. Tollman, 1999 ND 89, ¶ 87, 593 N.W.2d 374. In that context, substantial performance means the expenditure of time, effort, or money. Id. The Rodgers concede that Argabright substantially performed under the listing agreement and is entitled to a commission. The Rodgers’ payment of a commission to Gillmore could legally operate to satisfy their obligation to pay Argabright a commission under the listing agreement only if Gillmore, in accepting the commission, was acting as Argabright’s agent.

[¶ 6] An agency is a relationship which results when one person, called the principal, authorizes another, called the agent, to act for the principal in dealing with third persons. N.D.C.C. § 3-01-01. ' Agency is either actual or ostensible. N.D.C.C. § 3-01-03. An agency is actual when the agent really is employed by the principal. Id. An agency is ostensible when the principal intentionally or by want of ordinary care causes a third person to believe another to be his agent, who really is not employed by him. Id. An apparent or ostensible agency must rest upon conduct or communications of the principal which, reasonably interpreted, causes a third person to believe that the agent has authority to act for and on behalf of the principal. Krank v. A.O. Smith Harvestore Products, Inc., 456 N.W.2d 125, 128 (N.D.1990). Agency is never presumed and, if an agency relationship is denied, the party alleging agency must establish it by clear and convincing evidence. Hector v. Metro Centers, Inc., 498 N.W.2d 113, 118 (N.D.1993). On appeal, we review a district court’s finding of agency under the clearly erroneous standard of review. Fleck v. Jacques Seed Co., 445 N.W.2d 649, 651 (N.D.1989). A finding of fact is clearly erroneous if it is not supported by any evidence, if, although there is some evidence supporting the finding, a reviewing court is left with a definite and firm conviction a mistake has been made, or if the finding is induced by an erroneous conception of the law. Auction Effertz, Ltd. v. Schecher, 2000 ND 109, ¶ 10, 611 N.W.2d 173.

[¶ 7] The evidence is undisputed that there was no actual agency between Arga-bright and Gillmore for selling the Rodgers’ mobile home. Argabright testified he has never used Discount to sell a mobile home for him. Gillmore testified he had no business relationship with Argabright when Discount sold the Rodgers’ home. To determine whether there was an ostensible agency, the court must look to Arga-bright’s actions and decide whether there is clear and convincing evidence that Arga-bright’s conduct or communications caused the Rodgers to reasonably believe Gill-more, operating Discount, had authority to sell their mobile home and collect a commission on Argabright’s behalf.

[¶ 8] Jeffrey Rodgers testified that Ar-gabright “referred us to Clayton Gillmore to move [our mobile home].” He testified that Argabright told him “we could move the trailer — get the trailer house moved to [Gillmore’s] lot and sit it on his lot.” However, Jeffrey Rodgers also testified that he did not at that time discuss any terms about who would sell the property once it was moved. Rhonda Rodgers also testified that Argabright referred her to Clayton Gillmore to get their mobile home quickly moved off the lot on which it was currently located. She testified “I don’t remember exactly what the conversation was, but he is the one that told me to contact Discount Homes. They move trailers. And he said that sometimes they put them on their lot there, and maybe they’ll move it and put it on their lot. And that’s exactly what I did.” 'When asked whether she had a conversation with Arga-bright about whether he would still be selling their mobile home at the Discount lot she responded “he never had that conversation with me. I mean, he just suggested that I call them and that they would be able to help me.” She also testified that she talked to Gillmore after the home had been moved and told him she had a listing contract with Argabright. She said Gillmore told her “they’ve had agreements in the past where if it’s on his lot, if he sells it, he gets 10 percent. If, I believe, Brian sells it, he gets 10 percent. That is what he told me.” While Gill-more’s statements may have confused Rhonda Rodgers, we must look to the conduct and communications of the principal, not the alleged agent, to find an ostensible agency.

[¶ 9] The Rodgers’ testimony demonstrates they did not talk to Argabright or inquire of him whether there was any agreement that Gillmore could act on Ar-gabright’s behalf for purposes of selling the mobile home and collecting a commission for the sale. There is no evidence showing conduct by Argabright which could cause a reasonable person to believe that Gillmore had been authorized by Ar-gabright to sell the Rodgers’ mobile home on his behalf. Rather, the Rodgers’ testimony clearly shows Argabright referred them to Gillmore for the sole purpose of having their mobile home quickly relocated from its current location. We conclude, as a matter of law, there is not clear and convincing evidence of conduct by Arga-bright upon which a reasonable person could conclude Gillmore was acting as Ar-gabright’s agent. We, therefore, conclude the district court’s implicit finding there was an ostensible agency between Arga-bright and Gillmore is clearly erroneous. In the absence of an ostensible agency, there is no legal basis under these circumstances upon which the Rodgers can claim they have satisfied their obligation to pay Argabright a commission by having paid a commission to Gillmore. Argabright is therefore entitled to a judgment in his favor on his claim for a broker’s commission.

Ill

[¶ 10] Argabright asserts that upon reversing the decision on appeal the case should be remanded for further proceedings “as to whether [he] is entitled to a recovery of attorney fees as provided for by the listing agreement?” The only provision for attorney fees under the listing agreement reads:

Seller Agrees:
To reimburse Company for any damages, losses, judgments, expenses, attorney fees & costs incurred in defending against any action by a Buyer hereunder, for any defects in the subject prop- , erty or other damages or losses incurred by such a Buyer relative thereto, either in or out of court.

This provision only obligates the Rodgers, as sellers, to pay attorney fees to Arga-bright “in defending against any action by a Buyer hereunder.” This case does not involve any action or claim of a buyer. We therefore affirm the district court’s denial of Argabright’s claim for attorney fees under the listing agreement.

IV

[¶ 11] The judgment of the district court is affirmed in part, reversed in part, and remanded for entry of a judgment in favor of Argabright on his claim for a broker’s commission.

[¶ 12] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.


author: M. MICHAEL ROUNDS,

text:
    2003 SD 30
    In re Request of Governor M. Michael ROUNDS for an Advisory Opinion in the Matter of Interpretation of SDCL 1-5-1 and 1-5-2 and South Dakota Constitution Article IV, Section 4.
    No. 22766.
    Supreme Court of South Dakota.
    Request Received March 11, 2003.
    Decided March 18, 2003.
   ADVISORY OPINION

TO HIS EXCELLENCY,

M. MICHAEL ROUNDS,

THE GOVERNOR OF THE STATE OF SOUTH DAKOTA.

[¶ 1.] Pursuant to Article V, § 5 of the South Dakota Constitution, you have requested an opinion of the Supreme Court on important questions of law concerning provisions in Article IV, § 4 of the South Dakota Constitution as it relates to executive action on certain bills that you believe may be unconstitutional for having been passed by the Legislature in an untimely manner.

[¶ 2.] “In the past, we have answered questions regarding the constitutionality of legislation before the Governor for his approval or disapproval, and did not reject such a request on the basis that the matter was not final. Opinion of the Judges, 81 S.D. 629, 140 N.W.2d 34 (1966).” In re Janklow, 530 N.W.2d 367, 369 (S.D.1995)(Jabnklow I). A like conclusion is appropriate here where the matter has a degree of urgency because the Legislature has not yet concluded its 2003 session. See In re Janklow, 1999 SD 27, 589 N.W.2d 624 (Janklow II) (request for advisory opinion on time limits for executive action under Article IV, § 4 of the South Dakota Constitution constituted a solemn occasion warranting issuance of advisory opinion with a degree of urgency as the state legislature was in session). See also In re Request of Governor Janklow, 2000 SD 106, 615 N.W.2d 618 (Janklow III) (advisory opinion issued on time and procedures for delivery of veto messages under Article IV, § 4 of the South Dakota Constitution).

[¶ 3.] The facts on which you base your request are as follows. Article III, Section 6 of the South Dakota Constitution limits the Legislature to a session of not more than forty days in odd-numbered years. SDCL 2-14-2(7) defines a “day” as the period from midnight to midnight. SDCL 1-5-1 designates Sundays as legal holidays and SDCL 1-5-2 precludes public acts from being performed on Sundays. This year, the Legislature convened its thirty-ninth legislative day on Saturday, March 8. You indicate that the Legislature passed several bills, including the general appropriations bill, that were presented to you at approximately 12:30 a.m. on Sunday, March 9. Moreover, you state that the daily journals of the House and Senate and the audio archive of floor activity indicate that several of the bills, including the general appropriations bill, did not receive final passage by one or both houses of the Legislature until Sunday, March 9.

[¶ 4.] Based upon these facts, you submit the following questions for response:

1. May I properly act upon bills which received final passage by one or both houses of the South Dakota Legislature on Sunday, March 9th or would SDCL §§ 1-5-1 and 1-5-2 render those bills void or voidable as the result of a public act (final passage by the Legislature) performed on a Sunday?
2. If I return bills to the Legislature for errors in style and form, does a 40th Legislative day remain to approve or reject those recommendations pursuant to Article IV, § 4 of the South Dakota Constitution in light of the fact that Saturday, March 8th was the 39th Legislative Day and the Legislature also acted on Sunday, March 9th? If no 40th Legislative Day remains, will bills to which I make style and form changes take effect without further action by the Legislature?

[¶ 5.] Because the analysis relating to question two assists in resolving question one, we address question two first. This Court addressed the passage of legislative days in Janklow III, 2000 SD 106 at ¶ 7, 615 N.W.2d at 620-621:

Pursuant to South Dakota Constitution Article III, § 7, the Legislature must convene at “12 o’clock m.” on “the second Tuesday of January.” Under Article III, § 6, “regular session[s]” in odd-numbered years then continue for a period not to exceed forty legislative days which exclude Sundays, holidays and legislative recesses. “[RJegular session[s]” in even-numbered years may not exceed thirty-five legislative days which, again, exclude Sundays, holidays and legislative recesses, (emphasis and footnote added).

[¶ 6.] While this Court recognized in Janklow III that, “[t]he constitution itself does not prescribe the duration or hours of a ‘legislative day,’” id., the duration of a legislative day is necessarily limited by the constitutional language excluding the calendar day Sunday as a “legislative day.” A contrary conclusion would permit a legislative day commenced before a Sunday to continue on Sunday and even throughout Sunday and into ensuing calendar days of the week. This would eviscerate the constitutional language that specifically excludes Sundays as legislative days. Even giving utmost deference to the Legislature’s procedures, this Court cannot read the constitution in that fashion. See Independent Community Bankers Ass’n v. State, 346 N.W.2d 737, 742 (S.D.

1984)(while legislature may suspend rules, nothing allows for suspension of our state constitution). See also South Dakota Bd. of Regents v. Meierhenry, 351 N.W.2d 450, 452 (S.D.1984) (constitutional provision must be read giving full effect to all of its parts); Kneip v. Herseth, 87 S.D. 642, 659, 214 N.W.2d 93, 102 (1974) (in construing constitutional provision, no wordage should be found surplus and no provision can be left without meaning). Although you present your question under the general statute prohibiting the transaction of public business on Sundays, SDCL 1-5-2, it is unnecessary to reach that question because the foregoing constitutional provision makes clear that the Legislature could not have used its fortieth day on Sunday, March 9.

[¶ 7.] With regard to your first question, efforts to continue the thirty-ninth day after midnight could conceivably call into question the validity of any legislation passed after the midnight hour. See Janklow III, 2000 SD 106 at n. 1, 615 N.W.2d at 621 for dicta questioning the validity of a legislative act voted on after midnight on the last day of a session. However, under the unique facts of this case and under the rules that prescribe our review of legislative acts, we do not believe the questioned acts violate our constitution.

[¶ 8.] We begin by acknowledging that the Legislature must comply with constitutional requisites in passing legislation.

There is no question that to be valid all legislation must be enacted in conformity with the constitution. Minnehaha County v. South Dakota St. Bd. of Equal., 84 S.D. 640, 176 N.W.2d 56 (1970). While the respective rules allowed for suspension of the legislative rules [in this instance, final passage after midnight on a legislative day preceding a Sunday], nothing allows for suspension of our state constitution.

Independent Bankers, 346 N.W.2d at 742. However, “[i]t must be kept in mind ... that members and officers of the legislature act under the solemnity of their oaths, and the provisions of the constitution providing the various steps that shall be taken in the passage of a bill are addressed mainly to the legislature.” Minnehaha County, 84 S.D. at 647, 176 N.W.2d at 61. Thus, it is wise that courts exercise restraint in reviewing the proceedings of the Legislature in enacting laws. Id. For these reasons, courts are bound by strong presumptions favoring the constitutionality of legislative acts.

Any legislative act is accorded a presumption in favor of constitutionality and that presumption is not overcome until the unconstitutionality of the act is clearly and unmistakenly shown and there is no reasonable doubt that it violates fundamental constitutional principles. South Dakota Ass’n, Etc. v. State, Etc., 280 N.W.2d 662 (S.D.1979). Legislative action is also accorded a presumption in favor of validity and propriety and no statute should be held unconstitutional by any court unless its infringement of constitutional restrictions is so plain and palpable as to admit of no reasonable doubt. Clem v. City of Yankton, 83 S.D. 386, 160 N.W.2d 125 (1968).

Independent Bankers, 346 N.W.2d at 739.

[¶ 9.] In addition to this presumption, an issue arises with the character of evidence this Court may accept to determine the question of legislative conformity with the constitution. Minnehaha County, 84 S.D. at 642, 176 N.W.2d at 58. In Independent Bankers, supra, this Court held that the sources of official information used in determining the constitutionality of legislation are the enrolled bills and the legislative journals and adopted the “modified enrolled bill” rule concerning use of these sources. Id. As explained in Independent Bankers:

the “modified enrolled bill” rule ... holds an enrolled bill as conclusive evidence of proper enactment except as to constitutionally mandated journal entries which are specifically questioned. Minnehaha County, 84 S.D. at 642, 176 N.W.2d at 58, citing [Barnsdall Refining Corporation v. Welsh, 64 S.D. 647, 269 N.W. 853 (1936)] In Bamsdall, this court effectively adopted the “modified enrolled bill” rule and the court followed that choice in Minnehaha County, supra. The Bamsdall court presented six constitutional provisions that require legislative journal entries:
(1)The votes of the members elect taken on any question at the desire of one-sixth of those present shall be entered in the journal, S.D. Const, art. Ill, § 13.
(2) The results of all voice votes must be entered in the journals, S.D. Const, art. Ill, § 14.
(3) The vote on final passage taken upon last reading shall be entered in the journals, S.D. Const, art. Ill, § 18.
(4) The fact that the presiding officer of each house signed the bill or resolution in the presence of the respective house after public reading of the title shall be entered in the journal, S.D. Const, art. Ill, § 19.
(5) In the event of a gubernatorial veto and subsequent reconsideration of a bill, the results of the reconsideration vote and the names of the members voting for and against the bill shall be entered in the respective journals, S.D. Const, art. IV, § 9.
(6) Any amendments to the state constitution passed by a majority of the members-elect of each house shall be entered in the journals with the vote that was taken, S.D. Const, art. XXIII, § 1.

Independent Bankers, 346 N.W.2d at 743 (citing Barnsdall, 64 S.D. at 654-56, 269 N.W. at 856-57). It should be noted that the last two constitutional provisions on journal entries that are listed above were deleted by constitutional amendments in 1972. See 1972 S.D.Sess.L. ch. 1, § 2; 1972 S.D.Sess.L. ch. 4, § 2. Thus, there are currently only four constitutional provisions that require legislative journal entries.

[¶ 10.] In Independent Bankers, supra, this Court considered whether the Legislature passed a bill during the 1983 session in violation of a constitutional provision requiring every bill to be read twice by number and title. Applying the modified enrolled bill rule, this Court concluded: The modified enrolled bill rule precludes plaintiffs from introducing evidence of the legislature’s alleged failure to comply with the requirements of Art. Ill, § 17, because a journal entry noting compliance with that section is not expressly required by the constitution. In re Opinion of the Judges, 84 S.D. 3, 166 N.W.2d 427 (1969).

Plaintiffs rely upon SDCL 2-7-12 which states that “[d]uly certified copies of such journals shall be received in all courts of the state as original evidence, and ... shall be prima facie evidence of [legislative] proceedings.” The statute clearly requires all state courts to admit or receive the journals as evidence; however, nothing in the statute or its history requires this court to examine the journals in order to determine the constitutionality of enacted and enrolled laws. This court has not held that application of the “modified enrolled bill” rule depends upon whether the bills content or the bill’s enactment is questioned. Plaintiffs have not indicated that the legislative journals for ... the day [the bill] was considered and passed, lack any of the required entries enumerated above. Consequently, under Bamsdall, supra, and Minnehaha County, supra, and the “modified enrolled bill” rule adopted and followed by this court, the enrolled bill ... is considered conclusive of its contents and due enactment.

Independent Bankers, 346 N.W.2d at 743 (emphasis added).

[¶ 11.] Employing the same analysis, the modified enrolled bill rule precludes evidence of the Legislature’s failure to comply with alleged constitutional time limitations for passing bills because a journal entry noting compliance with a time requirement is not required by the constitution. See Minnehaha County, 84 S.D. at 645, 176 N.W.2d at 59 (absent constitutional requirement that title of bill be recorded in journal, title could not be considered by court to impeach due passage of the bill). Moreover, you have not indicated that the legislative journals for Saturday, March 8, 2003 lack any of the four required journal entries enumerated above. Consequently, under the modified enrolled bill rule, the enrolled bills are considered conclusive of their contents and due enactment, whatever unofficial sources of information may report on the process of enactment. Independent Bankers, supra.

[¶ 12.] We could end our inquiry here; however, even if we violated our precedent and examined the journals in order to determine the constitutionality of the enacted and enrolled bills you have questioned, we would reach no different result. The House Journal for Saturday, March 8, shows that the House reconvened from its last recess that day at 11:15 p.m., that it proceeded with legislative business after that time and that the House finally completed its business at 12:26 a.m. on March 9. Nothing in the House Journal shows the precise time of any of the legislative acts that took place between 11:15 p.m. and 12:26 a.m., including the time of final passage or of the reading and signing of any bills. Thus, even the journals do not definitively reveal when final passage occurred in that interval before midnight on March 8 irrespective of the time that the House finally completed its business. This Court must engage in every presumption that timely passage occurred irrespective of what unofficial sources of information may report. Independent Bankers, supra.

[¶ 13.] The same could be written with regard to the Senate Journal for Saturday, March 8. It shows that the Senate reconvened from its last recess that day at 11:35 p.m., that it proceeded with legislative business after that time and that the Senate finally completed its business at 12:20 a.m. on March 9. Again, nothing in the Senate Journal shows the precise time of the various legislative acts that took place between 11:35 p.m. and 12:20 a.m., including the time of final passage or of the reading and signing of any bills. Thus, even if we declined to follow the rules we are obliged to use in examining legislative action, a review of the Senate and House Journals does not conclusively reflect final passage of the bills after midnight on March 8. As previously observed, this Court must engage in every presumption that timely passage occurred. Independent Bankers, supra.

[¶ 14.] The enrolled bills presented to you yield no additional information on time of passage. They merely contain the signatures of the appropriate legislative officials and the time of delivery to your office. As noted, time of delivery is of no assistance in determining the time of passage.

[¶ 15.] Based upon the foregoing, the answer to your first question concerning whether you may properly act on the bills presented to you by the Legislature after midnight on March 8, 2003, is yes.

[¶ 16.] The answer to your second question concerning whether a fortieth legislative day remains for legislative action on form and style changes that you may recommend in some of the bills passed by the Legislature is also yes. These answers make it unnecessary to answer your third question concerning eventualities if no fortieth legislative day remains.

Chief Justice David Gilbertson

Justice Richard W. Sabers

Justice John K. Konenkamp

Justice Steven L. Zinter

Justice Judith K. Meierhenry

      . The pertinent part of S.D. Const, art. Ill, § 6 provides:
      A regular session of the Legislature shall be held in each odd-numbered year and shall not exceed forty legislative days, excluding Sundays, holidays and legislative recess, except in cases of impeachment, and members of the Legislature shall receive no other pay or perquisites except salary and mileage.

      . SDCL 1-5-1 provides in part that, "The first day of every week, known as Sunday ... shall be observed in this state as a legal holiday.” SDCL 1-5-2 provides:
      Any public or private business may be transacted or legal process or notices of any kind may be served or published on any of said days or next succeeding days designated herein as holidays, excepting Sundays, provided, that for good cause, a judge in whose court an action has been or is about to be brought, may endorse upon any process or notice permission to serve the same on Sunday, and if so endorsed, service thereof on Sunday shall be valid.

      .The reference to "12 o'clock m.” in Article III, § 7, is not an error. The letter "m.” is an abbreviation for the word "meridian.” Webster’s Third New International Dictionary 1352 (1976). "Meridian” refers to the high point reached by the sun and is defined as "the hour of noon[.]” Id. at 1414.

      . This is based upon a review of the temporary journals printed by the Legislative Research Council as of the date of this opinion.

      . Actually, the journal entry as to time of adjournment reflects that the House completed its business at 12:26 a.m. on, March 8, 2003 rather than March 9. It is assumed that this is typographical error.

      .The House Journal does show delivery or presentation of certain bills to you for your action at 12:23 a.m. on March 9, 2003. However, delivery after midnight also does not mean that the steps leading to passage of the bills were not completed before midnight.

      . Like the House Journal, the Senate Journal also shows delivery or presentation of a bill to you for your action at 12:23 a.m. on March 8, 2003 (it is assumed March 8 is a typographical error and that the delivery was on March 9). Again, however, delivery after midnight does not mean that the steps leading to passage of the bill were not completed before midnight.