                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                    Docket No. 42473-2014

SCOTT M. CHADWICK,                                )
                                                  )          Boise, November 2015 Term
     Claimant-Appellant,                          )
                                                  )          2015 Opinion No. 109
v.                                                )
                                                  )          Filed: November 25, 2015
MULTI-STATE ELECTRIC, LLC,                        )
Employer, and IDAHO STATE                         )          Stephen W. Kenyon, Clerk
INSURANCE FUND, Surety,                           )
                                                  )
     Defendants-Respondents.                      )
                                                  )

       Appeal from the Industrial Commission of the State of Idaho.

       The order of the Industrial Commission is affirmed.

       Scott M. Chadwick argued on behalf of himself.

       Neil D. McFeeley; Eberle, Berlin, Kading, Turnbow, & McKlveen, Chartered;
       Boise; argued for Respondents.




EISMANN, Justice.
       This is an appeal from an order of the Industrial Commission holding that the claimant
did not prove he was entitled to benefits under the Worker’s Compensation Law for an alleged
back injury. We affirm the order of the Commission.


                                              I.
                                     Factual Background.

       On March 18, 2013, Scott M. Chadwick (“Claimant”) filed a complaint with the
Industrial Commission seeking benefits under the Worker’s Compensation Law from his
employer, Multi-State Electric, LLC (“Employer”), and its surety, Idaho State Insurance Fund
(“Surety”). Claimant alleged that he had suffered back injuries as a result of an accident on May
29, 2012, and an accident on July 26, 2012. He went to various medical providers complaining
of back pain, and on October 8, 2012, he had an MRI of his low back. The MRI showed that he
had osteoarthritic changes in his lumbar spine and at L4-L5 he had a right paracentral disc
protrusion with mild reduction of spinal canal caliber and localized mass effect in the region of
the right L5 nerve root.
       The matter was tried to a referee, but the Commission did not adopt the referee’s
recommendations.      After considering the Claimant’s prehearing deposition, the testimony
presented during the evidentiary hearing before the referee, and the exhibits, the Commission
issued its findings of fact, conclusions of law, and order. The Commission found that Claimant
failed to prove that he suffered an injury from a workplace accident in the May event and that he
failed to prove that the July event occurred. The Commission alternatively found that he had
failed to provide timely notice to Employer of both claimed accidents, and that he failed to prove
that Employer was not prejudiced by the failure to give timely notice. Therefore, he was denied
benefits. Claimant then timely appealed.


                                             II.
       Did the Referee Err in Failing to Order the Defendants to Produce Discovery?

       Claimant’s claim was set for prehearing and hearing before a referee. Claimant contends
that at the prehearing, he requested that the Defendants be ordered to produce certain discovery
and that the referee erred in failing to address discovery in violation of Rule 8 of the
Commission’s Judicial Rules of Practice and Procedure. The record reflects that on May 31,
2013, the Defendants served responses to Claimant’s request for discovery. On September 20,
2013, Claimant filed a document requesting a hearing as soon as possible to determine his
eligibility for benefits. The referee ordered that he submit a request that complied with Rule 8 of
the Commission’s Judicial Rules of Practice and Procedure. On December 6, 2013, Claimant
filed a request for calendaring in which he stated that his claim was ready for hearing. His
request listed the issues to be heard, which did not include any reference to an alleged failure to
produce documents requested in discovery. On December 11, 2013, the referee issued an order
setting his claim for a telephonic prehearing on December 20, 2013, and for a hearing on January
31, 2014. The order listed the issues to be decided at the hearing. On December 24, 2013, after
the prehearing, the referee issued an order amending the issues to be decided at the hearing.


                                                2
       Claimant contends that during the prehearing, he raised the issue of the Defendants’
failure to produce all of the documents that he had requested, and the referee responded that it
was not the appropriate time to address that issue. The record on appeal does not show what was
discussed at the prehearing; it does not include any order regarding discovery issued by the
referee; and it does not indicate that any issue regarding discovery was ever presented to or
decided by the Commission. Because there is no indication that any issue regarding discovery
was ever presented to the Commission, it is not preserved for appeal. Ball v. Daw Forest
Products Co., 136 Idaho 155, 160, 30 P.3d 933, 938 (2001).


                                          III.
    Did the Commission Abuse Its Discretion in Failing to Hold a Hearing to Determine
             whether the Hearing Should Have Been before the Commission?

       In his request for hearing, Claimant stated, “It is necessary for the full Industrial
Commission [sic] hear this claim.” The subsequent order setting the case for a prehearing and
hearing was issued by the referee. The referee presided over the evidentiary hearing, but the
Commission issued its findings of fact, conclusions of law, and order based upon its own review
of the evidence admitted during the hearing. Claimant contends that the Commission abused its
discretion in failing to hold a conference with all parties present to consider whether the hearing
should have been before the Commission, as it was permitted to do pursuant to Rule 8 of its
Judicial Rules of Practice and Procedure.
       Rule 8 states that the Commission may hold a conference with all parties to discuss
“[w]hether the case should be heard by the full Commission because it is a case of first
impression, presents a situation to overturn or modify precedent, involves novel or complex
facts, or otherwise merits hearing by the full Commission rather than by a Referee.” Jud. R. of
Practice and Proc. 8(A)(8). Although in his request for hearing Claimant stated that the full
Commission should hear his claim, he did not allege any facts that would bring it within the
scope of Rule 8(A)(8). Therefore, because he failed to present that issue to the Commission in
accordance with the requirements of Rule 8, he has failed to show that the Commission abused
its discretion in failing to hold a conference to determine whether the Commission should preside
over the hearing.




                                                3
                                         IV.
     Did the Commission Err in Holding that Claimant Was Not Entitled to Benefits?

       A. The May 2012 incident. In his complaint, Claimant alleged that he suffered an
injury as a result of an industrial accident on May 29, 2012. On that day he sought treatment
from a chiropractor, whose records show that Claimant reported that he suffered a work-related
injury on May 26, 2012, when he jumped out of a truck and experienced low-back pain that
radiated through his right side.   During Claimant’s deposition, he testified that he did not recall
telling the chiropractor that he hurt himself at work. He stated: “When I say ‘jump,’ I don’t
mean I’m jumping two feet off a cliff. It is just stepping, jumping out of the van. It is not like a
hop, jump.” Claimant regularly obtained treatment from the chiropractor until early August
2012, and throughout that treatment the chiropractor diagnosed Claimant as having a “Lumbar
sprain/strain.” Finally, the chiropractor recommended that he see a physician.
       When he was interviewed by Surety’s investigator, Claimant explained that he thought
his low-back problems were the result of cumulative insults to his back during the twenty years
he had worked as an electrician. He testified in his deposition that as work began picking up
during the spring of 2012, he began to experience low-back pain, which he associated with the
general demands of his work.       He stated that only after reviewing his medical records in
September 2012 did he remember the May incident.
       The Commission found that Claimant had proved that the May incident occurred, but he
failed to prove that the event caused damage to the physical structure of his body. Alternatively,
the Commission held that Claimant had failed to give Employer timely notice of the alleged
accident.
       Idaho Code section 72-701 states, “No proceedings under this law shall be maintained
unless a notice of the accident shall have been given to the employer as soon as practicable but
not later than sixty (60) days after the happening thereof . . . .” Such notice must state “in
ordinary language the time, place, nature and cause of the injury.”          I.C. § 72-702.    It is
uncontroverted that Claimant did not give Employer written notice within sixty days of the May
incident.
       However, Idaho Code section 72-704 provides that the failure to give timely written
notice shall not bar a claim for benefits “if it is shown [(a)] that the employer, his agent or
representative had knowledge of the injury . . . or [(b)] that the employer has not been prejudiced

                                                 4
by such delay or want of notice.” Oral notice may provide an employer with knowledge of the
injury, but such oral notice must occur within the statutory time for giving written notice. Taylor
v. Soran Rest., Inc., 131 Idaho 525, 527, 960 P.2d 1254, 1256 (1998). The Commission found
that the Defendants did not have actual knowledge of the May event within the sixty-day period.
Claimant contends that Employer had the required notice because, within sixty days after the
May incident, Employer knew that Claimant had back pain for which he was seeking medical
care. The Commission correctly held that Employer’s “knowledge that Claimant’s back hurt or
that he received treatment for back pain is insufficient to meet the notice requirement.”
       The word injury as that term is used in the Worker’s Compensation Law means “a
personal injury caused by an accident arising out of and in the course of any employment
covered by the worker’s compensation law.” I.C. § 72-102(18)(a) (emphasis added). The word
accident means “an unexpected, undesigned, and unlooked for mishap, or untoward event,
connected with the industry in which it occurs, and which can be reasonably located as to time
when and place where it occurred, causing an injury.” I.C. § 72-102(18)(b) (emphasis added).
The words accident and injury are interrelated definitionally because an accident must cause an
injury and an injury must be caused by an accident. Konvalinka v. Bonneville Cnty., 140 Idaho
477, 480, 95 P.3d 628, 631 (2004). “The terms are not synonymous, however.” Id.
        Knowledge of the injury requires notice that the physical condition was caused by an
accident arising out of and in the course of the claimant’s employment. Thus, a claimant who
complained of pain was not entitled to benefits where there was no evidence that the employer
had actual knowledge of a work-related injury within the statutory time for giving notice.
Taylor, 131 Idaho at 528, 960 P.2d at 1257. Similarly, in Page v. McCain Foods, Inc., 141 Idaho
342, 109 P.3d 1084 (2005), we held that the oral notice given by a claimant to her employer was
sufficient where it “provided the supervisor with knowledge of the injury and the source of the
injury.” Id. at 346, 109 P.3d at 1088 (emphasis added). Likewise, in Murray-Donahue v.
National Car Rental Licensee Ass’n, 127 Idaho 337, 900 P.2d 1348 (1995), we held that an
employee’s “vague statement to her supervisor that she was having back problems is insufficient
to give the required notice of an accident and injury under I.C. § 72-701 and § 72-702,
particularly in view of her prior history of back problems.” Id. at 339, 900 P.2d at 1350.
       Claimant contends that once Employer was aware that Claimant was seeking medical
care for his back problems, Employer should have initiated an investigation to determine whether


                                                 5
such problems were caused by an accident arising out of and in the course of his employment.
Claimant cites no authority for that assertion, and it is contrary to the requirements of Idaho law
that the claimant must give the employer timely notice of the accident, I.C § 72-701, and that
such notice must include the time, place, nature, and cause of the injury, I.C. § 72-702.
       The Commission found that within sixty days after the May 2012 incident, Claimant did
not give Employer the required written notice of the alleged accident and the Defendants did not
have knowledge of the alleged injury. Therefore, Claimant had the burden of proving that
Employer was not prejudiced by such delay in giving notice. Jackson v. JST Mfg., 142 Idaho
836, 837, 136 P.3d 307, 308 (2006); I.C. § 72-704.
       The Commission found that “Claimant has set forth no affirmative proof establishing that
Multi-State Electric was not prejudiced by either reporting delay.” The Commission stated that
“there is inadequate evidence from which to determine that Employer would not have obtained
more accurate and complete material information, had it been able to investigate sooner”; that
“Claimant’s reporting delay may have hampered Employer’s ability to provide reasonable
medical treatment . . . [, which] may have resulted in quicker, more complete healing of
Claimant’s back condition”; and that “Claimant’s ability to work may have been compromised
by other intervening causes during the delay.” The Commission concluded that “Claimant has
failed to meet his burden of proving Employer was not prejudiced by his respective delays in
reporting his industrial accidents.”
       “Because the Commission is the fact finder, its conclusions on the credibility and weight
of the evidence will not be disturbed on appeal unless they are clearly erroneous. This Court
does not weigh the evidence or consider whether it would have reached a different conclusion
from the evidence presented.” Eacret v. Clearwater Forest Indus., 136 Idaho 733, 735, 40 P.3d
91, 93 (2002) (citation omitted). On appeal, Claimant does not present any argument showing
that the Commission’s finding that he failed to prove lack of prejudice was clearly erroneous.
Therefore, the Commission did not err in holding that Claimant failed to prove that he was
entitled to benefits for the May incident.
       B. The July incident. Claimant alleged in his complaint that he suffered an industrial
accident on July 26, 2012, while loading and unloading a trencher. He saw a physician on
August 6, 2012. The physician’s note dated August 6, 2012, recites that the reason for the
appointment was “back pain, low right side started last thur [August 2, 2012]”; that Claimant


                                                 6
“[h]as had chronic back pain for many years, manages it with ibuprofen and chiropractic”; and
that he was “[h]aving severe pain in lower right back today, [and] does not recall recent injury or
strain.” Claimant testified in his deposition that he told the physician “my back was hurting, and
I don’t know how, specifically, I hurt myself. It is just that it is hurting right now, and I need
some pain relief.” Claimant returned to the same medical provider on August 17, 2012, and was
seen by a physician’s assistant. Regarding the history of the present illness, the progress note for
that visit states that Claimant complained of “Old Injury ‘cumulative injury’ ” and that he denied
an “Acute Injury.”
       On August 13, 2012, Claimant went to another chiropractor. In the history form that he
completed, Claimant was asked whether the symptoms began suddenly or gradually, and he
circled the option that the symptoms began gradually. The history form also states that he
experienced the symptoms “on/off for year.” He later testified that after reviewing his medical
records in September and October, it came together that he had hurt his back when moving a
trencher on July 26, 2012.
       The Commission found that Claimant failed to prove that the July 2012 event occurred.
Alternatively, the Commission also found that Claimant failed to give timely notice of the
alleged accident and failed to prove that such lack of timely notice did not prejudice Employer.
As a result, the Commission held that Claimant was not entitled to benefits under the Worker’s
Compensation Law.
       “The burden of proof in an industrial accident case is on the claimant.” Johnson v.
Bennett Lumber Co., 115 Idaho 241, 244, 766 P.2d 711, 714 (1988). “[C]ompensation for
personal injury or death will be granted only if it be shown that an industrial accident has caused
the affliction. [Claimant] had the burden of proving both elements, the accident and its causation
of the injury.” Tipton v. Jansson, 91 Idaho 904, 907, 435 P.2d 244, 247 (1967). “To establish
that a mishap or event occurred, an injured worker must do more than show an onset of pain
while at work. Worker’s compensation is not meant or intended to be life or health insurance; it
is purely accident and occupational disease insurance.” Konvalinka, 140 Idaho at 479, 95 P.3d at
630. “[A]ggravation of a pre-existing condition caused by repetitive motion does not become an
accident simply because the claimant can locate the time period when the pre-existing condition
became symptomatic.” Id. at 480, 95 P.3d at 631.




                                                 7
       The Commission found that in his recorded statement to the Surety, in his prehearing
deposition, and at other times, “Claimant has clearly expressed the view that he does not, in fact,
attribute his low-back condition to either or both of the alleged accidents. Rather, Claimant
believes that his low-back condition is the result of cumulative insults to his low back, i.e. long
term wear and tear related to his work as an electrician.” The Commission also found:
       On September 26, 2012, Claimant advised Surety, during its investigational
       interview, that he could recall no specific injurious event leading to his low back
       pain. Instead, he believed it was the result of a cumulative injury over time,
       during his employment with both Multi-State Electric and prior employers. He
       denied any specific accident, asserting that his pain began around the end of July
       2012 or the beginning of August.

       Claimant points to his letter to Surety dated November 6, 2012, in which he wrote: “I
now know the details of my work related accident and how it happend [sic],” but only after he
had previously given his statement. He wrote about helping lift the tongue of the trailer holding
the trencher onto the vehicle hitch and unloading the trencher from the trailer, but did not report
any sudden onset of pain in doing so. Claimant offered into evidence his account of texts he sent
to Employer, including one on August 15, 2012, in which he wrote, regarding his medical
condition, that he “didn’t have accident but work related.” He also submitted copies of various
e-mails he sent, and in one dated October 17, 2012, he stated that “i [sic] didnt [sic] have an
accident at work, but its [sic] work related.”
       Claimant also points to a medical report dated July 30, 2013, (over one year after the
alleged incident) which recites:
       He states that he began to have back pain and right radicular leg pain in May of
       2012. He denies any specific injury, but states that he does wear a tool belt and
       he was doing a significant amount of bending and twisting at that time. He began
       to have severe radicular symptoms in July of 2012, while using a trencher at
       work.

The medical report also stated that there was a dispute as to whether it was a worker’s
compensation injury. The Commission noted that the physician also stated in the chart note that
“lifting a trencher could have caused Claimant’s L4-5 disc herniation.”               However, the
Commission stated that the opinion “states a possibility, but it is insufficient to establish, to a
reasonable medical probability, that lifting a trencher to attach it to a truck hitch on July 26, 2012
caused this injury.” “A claimant has the burden of proving a probable, not merely a possible,



                                                  8
causal connection between the employment and the injury or disease.” Beardsley v. Idaho Forest
Indus., 127 Idaho 404, 406, 901 P.2d 511, 513 (1995).
       The Commission held that Claimant failed to prove that the July incident occurred. It
found that he “reviewed his medical records and attempted to ascertain what he was doing at or
about the time the care was rendered, not because he attaches any significance to the incidents,
but because he perceived a need to identify a particular incident.” “Because the Commission is
the finder of fact, its conclusions on the credibility and weight of the evidence will not be
disturbed on appeal unless they are clearly erroneous.” Henry v. Dep’t of Correction, 154 Idaho
143, 145, 295 P.3d 528, 530 (2013). “This Court does not re-weigh the evidence or consider
whether it would have reached a different conclusion from the evidence presented.” Clark v.
Shari’s Mgmt. Corp., 155 Idaho 576, 579, 314 P.3d 631, 634 (2013). Claimant has failed to
show that the Commission’s finding that he failed to prove an injury caused by an industrial
accident as a result of the alleged July incident is not clearly erroneous.
       Claimant contends that the Commission failed to liberally construe the facts in his favor.
“The terms of Idaho’s workers’ compensation statute are liberally construed in favor of the
employee. However, conflicting facts need not be construed liberally in favor of the worker.”
Mazzone v. Texas Roadhouse, Inc., 154 Idaho 750, 755, 302 P.3d 718, 723 (2013) (citation
omitted).


                                         V.
  Did the Commission Err in Misreading or Failing to Give Sufficient Weight to Medical
                                      Records?

       Claimant contends that the Commission misinterpreted the patient history he completed
for his August 13, 2012, chiropractor visit. In response to the question, “When did the symptom
begin?” Claimant contends that he wrote, “A week ago,” and that the Commission misread the A
as being a 4, thereby erroneously concluding that the symptoms began “well before July 26.”
Claimant filed a motion for reconsideration raising that issue along with others, and the
Commission denied the motion, writing: “Having considered Claimant’s motion, and having
reviewed the record on reconsideration, we find that the substantial and competent evidence in
the record supports the decision as it stands.”        Claimant has not shown how the alleged
misinterpretation of his handwriting was material.



                                                  9
         One week before the August 13 medical visit, Claimant saw a medical provider for back
pain, and the chart note states that he had chronic pain for years and did not recall a recent injury
or strain.1 Four days after the August 13 medical visit, he saw a medical provider for back pain
that he said started on August 2, 2012, and the chart note states that Claimant had an old,
cumulative injury that was exacerbated by repetitive work. 2 Ten days after the August 13
medical visit, he again saw a medical provider for low-back pain, and the chart note stated that
he suffered low-back pain on May 29, 2012, caused by lifting and bending at work. 3 Thus, the
Commission’s conclusion that Claimant’s symptoms began well before July 26, 2012, was
supported by other medical records.
         Claimant argues that “[t]here are no medical records in evidence refuting the work related
nature of Claimant’s injuries,” and therefore the Commission’s findings are not supported by the
evidence. It was not enough for Claimant to show that his back pain was work related. He had
to “prove to a reasonable degree of medical probability that the injury for which benefits are
claimed is causally related to an accident occurring in the course of employment.” Stevens-
McAtee v. Potlatch Corp., 145 Idaho 325, 332, 179 P.3d 288, 295 (2008). The injury must have
been “caused by an accident, which results in violence to the physical structure of the body,” I.C.
§ 72-102(18)(c), and the accident must have been an “unexpected, undesigned, and unlooked for
mishap, or untoward event, connected with the industry in which it occurs, and which can be



1
  The August 6, 2012, chart note states that the reason for the appointment was: “[B]ack pain, low right side started
last thur. [August 2, 2012] has been seeing a chiro for low back since June. [P]ain got getting [sic] worse today.”
The history of present illness states: “46 year old male presents with c/o Low Back Pain Acute low back pain for
several days. Has had chronic back pain for many years, manages it with ibuprofen and chiropractor. Having
severe pain in lower right back today, does not recall recent injury or strain.” The history also stated that he
complained of “past symptoms” and “Chronic Pain” and denied “Leg Pain.”

2
  The August 17, 2012, chart note states that the reason for the appointment was, “R lower back pain radiating down
leg.” The history of present illness stated that Claimant complained of “Low Back Pain,” “Old Injury ‘cumulative
injury,’ ” and “burning/shooting pain right leg,” and that he “Denies: Acute Injury.” It also stated that he complains
of “injury related to work exacerbated by, onset was at work, repetitive motion, labor.”

3
  The August 23, 2012, chart note states that the reason for the appointment was, “DOI 5-29-2012 crawls into
spaces, lifting, rt leg constant pain, cramping, walks at an angle.” In the history of the present illness, the chart note
states:
                     [I]njury occurred at work DOI: 5/29/12 suffererd [sic] injury to the low back while on the
          job. No falls or trauma, but feels that repetitive lifting and bending activities while on the job is
          the cause of his back pain. . . . He reports that he has seen chiropractors from time to time in the
          past, but denies prior serious back injuries of significance.



                                                           10
reasonably located as to time when and place where it occurred,” I.C. § 72-102(18)(b). In
Konvalinka, the claimant’s pain was work related in that her work aggravated her pre-existing
medical condition, but the aggravation of her condition did not constitute an accident. 140 Idaho
at 479, 95 P.3d at 630. “The law in Idaho clearly states that an employee who suffers from a pre-
existing condition must establish that his or her disease was aggravated by an accident before
they are entitled to recover.” McGee v. J.D. Lumber, 135 Idaho 328, 335, 17 P.3d 272, 279
(2000). In Tupper v. State Farm Insurance, 131 Idaho 724, 963 P.2d 1161 (1998), we upheld the
denial of benefits because while the claimant’s “doctor opined that the underlying pain and
exacerbation of pain were work related, the doctor did not provide any medical evidence
connecting the aggravation of Tupper’s condition to an unexpected, undesigned and unlooked for
mishap or untoward event, reasonably identifiable as to the time when and the place where it
occurred.” Id. at 728, 963 P.2d at 1165. Being work related is not synonymous with being
caused by an accident, which was apparently Claimant’s understanding when he texted and e-
mailed that he did not have an accident but his condition was work related.
       Finally, Claimant contends that the Commission erred in failing to realize that his
treatment for the May incident ended June 26, 2012, and that his treatment for the July incident
began on July 30, 2012. On August 23, 2012, Claimant sought treatment from a medical
provider, and the chart note reflects under the heading of “History of Present Illness, Work
Comp Injury” the statement that “injury occurred at work DOI: 5/29/12 suffererd [sic] injury to
the low back while on the job.” Thus, on August 23, 2012, Claimant was attributing his back
pain to the May 29, 2012, incident, not to a subsequent July 2012 incident. Claimant has failed
to show that the Commission erred in evaluating the evidence.
                                            VI.
                 Are the Defendants Entitled to an Award of Attorney Fees?

       The Defendants seek an award of attorney fees pursuant to Idaho Appellate Rule 11.2,
which provides that an attorney’s or party’s signature on a document constitutes a certification
that: (a) “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 (b) “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.” I.A.R. 11.2. If either certification is inaccurate, this Court can impose an


                                               11
appropriate sanction, which may include requiring the signer to pay the opposing party a
reasonable attorney’s fee. Id.
        In Giles v. Eagle Farms, Inc., 157 Idaho 650, 339 P.3d 535 (2014), we held that a party
seeking an award of attorney fees under the rule must identify the document that was signed in
violation of the rule. Id. at 659, 339 P.3d at 544. In their brief, the Defendants did not identify
the document signed by Claimant in violation of Rule 11.2. Therefore, we decline to award
sanctions.


                                                  VII.
                                               Conclusion.

        We affirm the order of the Industrial Commission, and we award Respondents costs, but
not attorney fees, on appeal.


        Justices BURDICK, HORTON, and Justice Pro Tem KIDWELL CONCUR.


        J. JONES, Chief Justice, specially concurring.
        I concur in the Court’s opinion, but write to express continuing concern regarding
questionable procedural practices employed by the Idaho Industrial Commission. As I pointed
out in Kelly v. Blue Ribbon Linen Supply, Inc., 2015 WL 6657377, *5 (Nov. 2, 2015), the
Commission has recently tended to wholly discard the findings of fact, conclusions of law and
recommendation made by a referee and adopt its own. The Commission did so in this case,
choosing not to adopt a single finding of fact made by the Referee. Nor did the Commission
include the Referee’s recommended decision in the record on appeal.4
        The problem with this type of practice is that the Court does not have a complete picture
of the case when it arrives for determination on appeal. When a worker’s compensation case
comes before this Court, we “will not disturb the Commission’s factual findings if they are
supported by substantial and competent evidence.” Knowlton v. Wood River Med. Ctr., 151
Idaho 135, 140, 254 P.3d 36, 41 (2011). This recognizes that the Commission is the trier of fact,
hears the live testimony of witnesses, and is in a position to make credibility determinations.


4
  When asked at oral argument before the Court whether they would agree to augment the Referee’s decision into
the record, counsel for both parties agreed and the decision was subsequently provided for the Court’s record.

                                                     12
“Determining the credibility of witnesses and evidence is a matter within the province of the
Commission.” Id. at 144, 254 P.3d at 45. This Court has divided credibility into two categories—
observational and substantive. Id. “Observational credibility goes to the demeanor of [a witness]
on the witness stand and it requires that the Commission actually be present for the hearing in
order to judge it.” Id. Substantive credibility does not require the Commission’s actual presence
but may be judged from “numerous inaccuracies and conflicting facts.” Id. Thus, if the
Commission is not present to hear live testimony or if it does not adopt credibility determinations
made by the referee who conducted the hearing, its conclusions regarding observational
credibility are unsupported.
       This record discloses at least two rather obvious instances where the Commission, which
was not present to hear testimony, made findings based at least in part on observational
credibility, casting doubt on their reliability. In her proposed findings, the Referee found that
“Claimant’s testimony regarding a May 29, 2012, industrial accident lacks credibility and is
unpersuasive.” This finding was based, in part, on testimony presented at the hearing before the
Referee. The Commission did not adopt or incorporate this or any other finding made by the
Referee into its decision. Yet, the Commission made its own finding, based in part on
Chadwick’s testimony, that an alleged accident may well have occurred—“we believe that Dr.
Rosenlund’s records, coupled with Claimant’s testimony, do tend to establish that an event did
occur, whether on May 26th, May 29th or some other date in late May, we cannot determine.”
Since the Commission neither heard Chadwick’s testimony nor adopted the Referee’s credibility
determination based on his testimony, it is not entirely clear how the Commission could make a
credibility determination based on such testimony. It should be noted that this issue was not
critical to the ultimate outcome of the case.
       On another peripheral issue, the Referee found that “Claimant most likely intentionally
omitted reporting the May 2012 injury to the claims investigator.” Referencing this finding, the
Referee later stated, “[a]s discussed, above, Claimant was most likely intentionally withholding
information regarding his May 2012 injury.” The Commission neither adopted the Referee’s first
finding nor made any comparable finding of its own and, therefore, had no basis for making the
second one. Nevertheless, the Commission said, “[a]s discussed, above, Claimant was most
likely intentionally withholding information regarding his May 2012 injury.” Oops!




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        These instances of shoddy fact-finding do not inspire a great deal of confidence in the
Commission’s fact-finding abilities. If the Commission persists in snatching cases away from its
referees, it should more carefully review the record and, where observational credibility clearly
comes into play, either make findings consistent with those made by the referee, who was
present to hear the testimony, or indicate why the referee’s determination of observational
credibility is incorrect.
        A further problem with the Commission’s practice of disregarding a referee’s proposed
decision is that the Commission does not indicate why it deems the referee’s decision unworthy
to the extent that not even one finding of fact is approved or adopted. A party to a worker’s
compensation dispute, just like a litigant in any other type of administrative proceeding, has a
right to a reasoned decision and, where the findings of the Commission depart from those of the
referee, there should be an explanation. Although the Commission has its own procedural rules
and is not bound by the Idaho Administrative Procedure Act (IDAPA), there is no reason why
the Commission should not observe accepted practice for IDAPA proceedings where the
administrative agency is utilizing the services of a hearing officer. In Pearl v. Idaho State Bd. of
Medicine, 137 Idaho 107, 112, 44 P.3d 1162, 1167 (2002) the Court stated:
               Where the agency’s findings disagree with those of the hearing panel, this
        Court will scrutinize the agency’s findings more critically. Woodfield v. Board of
        Professional Discipline, 127 Idaho 738, 746, 905 P.2d 1047, 1053 (Ct. App.
        1995). As the Court of Appeals noted in Woodfield, there is authority for courts to
        impose on the agency an obligation of reasoned decision making that includes a
        duty to explain why the agency differed from the administrative law judge.
        Woodfield, 127 Idaho at 746, 747 n. 3, 905 P.2d at 1053 n.3.
Thus, a worker’s compensation litigant is entitled to a reasoned decision, which includes an
explanation for the Commission’s departure from findings made by a referee. Here, the
Commission offered no reasons for its decision to jettison the Referee’s proposed findings.
        Even though they arrived there by slightly different routes, both the Commission and the
Referee reached the same conclusion—that Chadwick’s complaint should be dismissed with
prejudice. The two errant findings made by the Commission in this case were not critical to the
outcome. The Court’s opinion does not rely upon the faulty fact-finding and, therefore, I concur
in the decision.




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