                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                       Docket No. 44241

STEVEN ANDREWS,                                   )
                                                  )          Boise, April 2017 Term
      Claimant-Appellant,                         )
                                                  )          2017 Opinion No. 51
v.                                                )
                                                  )          Filed: May 26, 2017
STATE OF IDAHO, INDUSTRIAL                        )
SPECIAL INDEMNITY FUND,                           )          Stephen Kenyon, Clerk
                                                  )
      Defendant-Respondent.                       )

       Appeal from the Industrial Commission of the State of Idaho.

       The order of the Industrial Commission is affirmed.

       Cooper & Larsen, Chartered, Pocatello, for appellant. Reed Larsen argued.

       Benoit, Alexander, Harwood, High & Mollerup, PLLC, Twin Falls, for
       respondent. Bren Mollerup argued.
             _______________________________________________

HORTON, Justice.

       This is an appeal from the Industrial Commission. Steven Andrews filed for workers’
compensation benefits after he fell from a ladder in 2009 while working for the Corporation of
the Church of Jesus Christ of Latter Day Saints (LDS Church). Andrews sought to establish that
the Idaho Industrial Special Indemnity Fund (ISIF) was liable pursuant to Idaho Code section 72-
332. Following a hearing and consideration of post-hearing depositions, the referee issued his
Findings of Fact, Conclusions of Law, and Recommendation on May 10, 2016. The referee
concluded that Andrews failed to show that ISIF was liable because the evidence showed that
any pre-existing physical impairments did not constitute a subjective hindrance and that Andrews
failed to show that his pre-existing impairments combined with the industrial accident to cause
his total and permanent disability. In an order of the same date as the referee’s recommendation,
the Commission adopted the recommendation. Andrews timely appealed, arguing that the
Commission’s order was not supported by substantial and competent evidence. We affirm.
                  I. FACTUAL AND PROCEDURAL BACKGROUND
                                      1
       Andrews was injured when he fell from a ladder in March 2009. Andrews was 53 years
old and employed by the LDS Church as a mechanic at the time of the accident. Andrews had
been employed by the LDS Church since 1988. Andrews was responsible for maintaining
between 32 and 42 buildings for the LDS Church. Andrews graduated from Marsh Valley High
School in 1977 and held a variety of jobs before being hired by the LDS Church.
       The accident that led to Andrews filing this claim occurred on March 17, 2009. Andrews
fell from a 12-foot upper mezzanine and landed on his shoulders on a stage. This accident
required Andrews to have surgery on his lower back. Following the surgery, the LDS Church
terminated Andrews’ employment because they could no longer employ him due to his
restrictions and physical disabilities. After losing his job, Andrews unsuccessfully attempted to
find another job. Andrews had problems with his feet, knees, lower back, shoulders, and neck
before the 2009 accident.
       Andrews filed his workers’ compensation claim in November 2010. In November 2011,
Andrews reached a settlement agreement with the LDS Church. Andrews then proceeded with
this claim against ISIF. In 2015, a hearing was held before the referee. On May 10, 2016,
following post-hearing depositions, the referee filed his Findings of Fact, Conclusions of Law,
and Recommendation. The referee found that Andrews had failed to show that his pre-existing
injuries were a subjective hindrance to his employment and that he failed to show that but for the
pre-existing injuries he would not have been totally and permanently disabled. Based on those
findings, the referee recommended that the Commission hold that ISIF was not liable for
Andrews’ total and permanent disability. The Commission issued an order the same day adopting
the referee’s Findings of Fact, Conclusions of Law, and Recommendation. Andrews timely
appealed.
                               II. STANDARD OF REVIEW
       “When this Court reviews a decision from the Industrial Commission, we exercise free
review over questions of law, but review questions of fact only to determine whether the
Commission’s findings are supported by substantial and competent evidence.” Uhl v. Ballard
Med. Products, Inc., 138 Idaho 653, 657, 67 P.3d 1265, 1269 (2003). This Court is
“constitutionally compelled to defer to the Industrial Commission’s findings of fact where
supported by substantial and competent evidence.” Fife v. Home Depot, Inc., 151 Idaho 509,
513, 260 P.3d 1180, 1184 (2011). “Substantial and competent evidence is relevant evidence that

                                                2
a reasonable mind might accept to support a conclusion.” Mazzone v. Texas Roadhouse, Inc., 154
Idaho 750, 755, 302 P.3d 718, 723 (2013). “This Court will not disturb the Commission’s
determination as to the weight and credibility of evidence unless clearly erroneous.” Id. “In
reviewing the Commission’s decision, we must view the facts and all inferences from them most
favorably to the party who prevailed before the Commission.” Dumaw v. J.L. Norton Logging,
118 Idaho 150, 155, 795 P.2d 312, 317 (1990).
                                     III. ANALYSIS
       The primary issue in this case is whether there is substantial and competent evidence to
support the Commission’s determination that ISIF is not liable for Andrews’ total and permanent
disability. Idaho Code section 72-332(1) providess:
               If an employee who has a permanent physical impairment from any cause
       or origin, incurs a subsequent disability by an injury or occupational disease
       arising out of and in the course of his employment, and by reason of the combined
       effects of both the pre-existing impairment and the subsequent injury or
       occupational disease or by reason of the aggravation and acceleration of the pre-
       existing impairment suffers total and permanent disability, the employer and
       surety shall be liable for payment of compensation benefits only for the disability
       caused by the injury or occupational disease, including scheduled and
       unscheduled permanent disabilities, and the injured employee shall be
       compensated for the remainder of his income benefits out of the industrial special
       indemnity account.
I.C. § 72-332(1). In Dumaw, this Court laid out a four-element test for apportioning liability
under Idaho Code section 72-332. The four elements are: (1) whether there was a pre-existing
impairment, (2) whether the impairment was manifest, (3) whether the impairment was a
subjective hindrance, and (4) whether the impairment in any way combines in causing total
permanent disability. Dumaw, 118 Idaho at 155, 795 P.2d at 317. The claimant has the burden of
proving all four elements. Eckhart v. State, Indus. Special Indem. Fund, 133 Idaho 260, 263, 985
P.2d 685, 688 (1999). Here, the Commission adopted the referee’s recommendation that
Andrews had failed to show the last two elements. Andrews argues that this conclusion is not
supported by substantial and competent evidence. As it is dispositive of this appeal, we first
address the fourth element.
A. Whether the pre-existing impairment in any way combines in causing total permanent
   disability
       As noted above, the fourth element of the Dumaw test is whether the pre-existing
impairment in any way combines in causing total and permanent disability. Dumaw, 118 Idaho at
                                                3
155, 795 P.2d at 317. The Commission adopted the referee’s finding that Andrews’ total and
permanent disability was due solely to his March 2009 accident and thus ISIF is not liable.
Andrews contends that this finding is not based on substantial and competent evidence. We
disagree.
       “To satisfy the ‘combined effects’ requirement in I.C. § 72-332(1), a claimant must show
that but for the pre-existing impairments, he would not have been totally permanently disabled.”
Eckhart, 133 Idaho at 263, 985 P.2d at 688. In Eckhart, the claimant attempted to establish ISIF
liability for his total and permanent disability following a back injury. Id. at 261, 985 P.2d at
686. This Court upheld the Commission’s determination that ISIF was not liable because Eckhart
had failed to show that, but for pre-existing impairments, he would not have been disabled. Id. at
263, 985 P.2d at 688. The Commission found that Eckhart’s total and permanent disability could
be attributed solely to his final back injury. Id. at 263–64, 985 P.2d at 688–89.
       The Commission’s finding that Andrews’ disability could be attributed solely to the 2009
accident was based on Dr. Collins’ testimony. In her deposition of August 19, 2015, Dr. Collins
testified that Andrews had a number of physical limitations as a result of his 2009 accident. Due
to these limitations, Dr. Collins testified that Andrews likely would not be able to find a job in
the Pocatello market. Additionally, Dr. Selznick testified that Andrews’ surgery following the
March 2009 accident was necessary solely because of that accident. Dr. Selznick also testified
that the restrictions considered by Dr. Collins were the result of that surgery. The testimony of
Drs. Collins and Selznick constitute substantial and competent evidence supporting the
Commission’s determination that Andrews’ total and permanent disability resulted solely from
the 2009 accident.
B. Whether the pre-existing impairment was a subjective hindrance
       Because there is substantial and competent evidence in the record to support the
Commission’s finding that Andrews failed to meet the fourth element of the Dumaw test, we do
not decide whether substantial and competent evidence supported the Commission’s
determination that the pre-existing impairment was not a subjective hindrance.
C. Attorney fees on appeal
       ISIF seeks attorney fees on appeal pursuant to Idaho Appellate Rule 11.2. ISIF contends
that Andrews’ appeal simply asks this Court to reweigh the evidence before the Commission.
       Idaho Appellate Rule 11.2 provides in pertinent part that:

                                                 4
       The signature of an attorney or party constitutes a certificate that the attorney or
       party has read the notice of appeal, petition, motion, brief or other document; that
       to the best of the signer’s knowledge, information, and belief after reasonable
       inquiry it is well grounded in fact and is warranted by existing law or a good faith
       argument for the extension, modification, or reversal of existing law, and that it is
       not interposed for any improper purpose, such as to harass or to cause
       unnecessary delay or needless increase in the cost of litigation. If the notice of
       appeal, petition, motion, brief, or other document is signed in violation of this
       rule, the court, upon motion or upon its own initiative, shall impose upon the
       person who signed it, a represented party, or both, an appropriate sanction, which
       may include an order to pay to the other party or parties the amount of the
       reasonable expenses incurred because of the filing of the notice of appeal,
       petition, motion, brief or other document including a reasonable attorney’s fee.
       “We construe [Idaho Appellate Rule] 11.2 in the same manner as [Idaho Rule of Civil
Procedure] 11(a)(1) because they have identical wording.” Akers v. Mortensen, 160 Idaho 286,
289, 371 P.3d 340, 343 (2016) (quoting Jim & Maryann Plane Family Trust v. Skinner, 157
Idaho 927, 936, 342 P.3d 639, 648 (2015)). “[A]ttorney fees can be awarded as sanctions when a
party or attorney violates either (a) the frivolous filings clause or (b) the improper purpose
clause.” Id. (quoting Sims v. Jacobson, 157 Idaho 980, 987, 342 P.3d 907, 914 (2015)).
       After careful consideration, we have concluded that Andrews’ arguments, although not
ultimately persuasive, were not frivolously advanced. Therefore, we do not award attorney fees
on appeal.
                                          IV.
                                        CONCLUSION
       We affirm the order of the Industrial Commission and award costs, but not attorney fees,
on appeal to Respondent ISIF.

       Chief Justice BURDICK, Justices EISMANN, JONES and Justice Pro Tem KIDWELL,
CONCUR.




                                                5
