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 *361particular 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 *362related 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 em*363ployment 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