                IN THE SUPREME COURT OF THE STATE OF IDAHO

                                      Docket No. 33342

CHERYL ANN STEVENS-MCATEE,                        )
Personal representative of DAVID JOEL             )
MCATEE, deceased,                                 )        Boise, January 2008 Term
                                                  )
      Claimant-Appellant,                         )        2008 Opinion No. 24
                                                  )
v.                                                )        Filed: February 15, 2008
                                                  )
POTLATCH CORPORATION, Employer,                   )        Stephen Kenyon, Clerk
and WORKERS COMPENSATION                          )
EXCHANGE, Surety,                                 )
                                                  )
      Defendants-Respondents.                     )

       Appeal from the Idaho Industrial Commission.

       The decision of the Industrial Commission is reversed and the case is remanded.

       Smith, Cannon & Bond, Lewiston, for appellant. Ned Cannon argued.

       Randall, Blake & Cox, Lewiston, for respondent. Scott Chapman argued.

            _______________________________________________


HORTON, Justice.

       Cheryl Ann Stevens-McAtee (Appellant), personal representative of the estate of
Claimant David Joel McAtee (McAtee), deceased, appeals from an order of the Industrial
Commission of the State of Idaho (Commission) denying McAtee worker’s compensation
benefits for the stated reason that he “failed to show his herniated disc was caused by a
compensable accident.”
                   I. FACTUAL AND PROCEDURAL BACKGROUND
       McAtee started working for Potlatch Corporation (Potlatch) in 1999. He handled wood
products by hand and drove a Hyster, which is an enormous specialized forklift used to move
large stacks of lumber. His primary role was to move unfinished stacks from the yard to be fed
into the planers. The work was fast-paced and strenuous. During a typical shift McAtee had to



                                              1
manually pull from 100 to 400 spacer blocks off his loads of lumber. Each spacer block weighed
between 70-75 pounds and was about eight-feet long. This required McAtee to mount and
dismount his Hyster repeatedly. The driver’s seat was located more than six feet off the ground.
To provide stability when lifting large loads, the Hyster is unsuspended except for a spring
loaded seat. McAtee was a big man, reaching over 6’3’’ in height and weighing over 270
pounds. He claimed the seat suspension on the Hyster was insufficient for a man of his build and
would bottom out when he hit bumps.
          On March 9, 2004, McAtee experienced an onset of back pain, which increased in
intensity throughout his shift to the point where he could no longer sit up straight. He reported
his back pain to his supervisor as soon as he was able to contact him. McAtee’s supervisor asked
him to finish the final 45 minutes of his shift because the workload was high that night. McAtee
acceded to the request. Following his shift, his back pain had reached the point where he could
not tolerate standing up to do the dishes at home. The next morning Potlatch called McAtee and
told him to go see a doctor before he reported back to work. McAtee did not have a doctor, so
Potlatch referred McAtee to Dr. Greggain, a family practice physician whom Potlatch retained as
a consultant on a contract basis for employee evaluations.
          McAtee was evaluated by Dr. Greggain on March 11, 2004. Dr. Greggain ordered an
MRI which revealed spinal degeneration and a herniated L5-S1 disc. McAtee’s medical records
indicate a prior history of back pain, minor injuries, and chiropractic care, but no evidence of
previous disc herniation. McAtee was also seen by Dr. Greggain’s partner, Dr. MacKay for
follow-up care.
          McAtee was referred by Dr. Greggain to Dr. Dietrich, an orthopedic specialist. Dr.
Dietrich recommended conservative treatment including physical therapy and cortisone
injections. The physical therapy was unsuccessful in improving McAtee’s condition. Pain
consultant Dr. Craig Flinders performed epidural steroid injections on McAtee. Dr. Flinders
recommended surgery after the injections failed to alleviate McAtee’s pain. Following the trial
course of conservative treatment, Dr. Dietrich recommended surgical decompression and spinal
fusion.
          On March 29, 2004, McAtee filed a short term disability claim. On April 13, 2004,
Workers Compensation Exchange (Surety) sent an inquiry form to Dr. Greggain. On the form,
Dr. Greggain circled “no” in response to the question, “[o]n a more probable than not basis do



                                                2
you feel that Mr. McAtee sustained an injury on March 9, 2004?” and elaborated in handwriting,
“I believe this is a culmination of longstanding mechanical and degenerative changes that finally
led to disc failure and nerve entrapment.” One week later on April 20, 2004, Surety formally
denied McAtee’s claim. Potlatch stated that McAtee would not be released back to work unless
he had the recommended surgical procedures performed. However, because McAtee was unable
to pay for these surgical procedures out-of-pocket, he was never released back to work.
       Following the denial of his claim, McAtee filed a worker’s compensation complaint with
the Commission on October 10, 2004. In addition, McAtee sought out Dr. Colburn for an
independent medical evaluation as to the cause of his injuries. At the oral hearing on the matter,
McAtee testified that on March 9, 2004, he felt a “funny feeling” in his lower back when his seat
bottomed out after hitting a drain ditch with his Hyster. He also testified that he hit bumps and
the drain ditch all the time. The referee found McAtee’s testimony about hitting the drain ditch
an uncredible improvement or enhancement over his earlier more vague accounts of March 9,
2004. The referee held that, in the absence of credible testimony, and considering McAtee’s
history of back pain, there was no other evidence linking the events of March 9, 2004, to his
herniated disc. Therefore, McAtee’s claim was denied by the Commission for the stated reason
that “he failed to show that his herniated disc was caused by a compensable accident.” McAtee
filed a motion for reconsideration which was denied by the Commission.              McAtee timely
appealed to this Court.
       Before this matter was argued before this Court, McAtee died from reasons unrelated to
this claim. His mother, Cheryl Ann Stevens-McAtee, serving in the capacity of the personal
representative of McAtee’s estate, was substituted as the Appellant in this case.
                                 II. STANDARD OF REVIEW
       This Court exercises free review over the Commission’s legal conclusions and may
substitute its view for the Commission’s view. Kessler ex. Rel. Kessler v. Payette County, 129
Idaho 855, 859, 934 P.2d 28, 32 (1997). Although this Court may review the Commission’s
factual findings, this Court must limit its review to determining whether the Commission
correctly denied benefits after it applied the law to the relevant facts. Id. Whether an injury
arose out of the course of employment is a question of fact to be determined by the Commission.
Id. The Commission’s factual findings will not be disturbed on appeal so long as they are
supported by substantial and competent evidence. I.C. § 72-732; Neihart v. Universal Joint Auto



                                                 3
Parts, Inc., 141 Idaho 801, 803, 118 P.3d 133, 135 (2005). Substantial evidence is relevant
evidence that a reasonable mind might accept to support a conclusion. Page v. McCain Foods,
Inc., 141 Idaho 342, 344, 109 P.3d 1084, 1086 (2005). Credibility of witnesses and evidence is a
matter within the province of the Commission. Zapata v. J.R. Simplot Co., 132 Idaho 513, 515,
975 P.2d 1178, 1180 (1999). As such, the Commission’s findings on weight and credibility will
not be disturbed on appeal if they are supported by substantial and competent evidence. Id.
          In making our determinations, this Court “must liberally construe the provisions of the
worker’s compensation law in favor of the employee, in order to serve the humane purposes for
which the law was promulgated.” Jensen v. City of Pocatello, 135 Idaho 406, 413, 18 P.3d 211,
218 (2000) (citing Murray-Donahue v. Nat’l Car Rental Licensee Ass’n., 127 Idaho 337, 340,
900 P.2d 1348, 1351 (1995)).
                                          III. ANALYSIS
          The issue in this case is whether the Commission’s finding that “McAtee failed to show
his herniated disc was caused by a compensable accident” was supported by substantial and
competent evidence in the record. We hold that it was not. Consequently, we reverse the order
of the Commission and remand for proceedings consistent with this opinion. Furthermore, we
award McAtee attorney fees and costs because the denial of his claim was unreasonable.
A.    The Commission’s conclusion that “McAtee failed to show his herniated disc was
      caused by a compensable accident” is not supported by substantial and competent
      evidence.
          We find two points of error in the Commission’s determination that “McAtee failed to
show his herniated disc was caused by a compensable accident.” First, the Commission’s
conclusion that McAtee’s testimony was not credible is not supported by substantial and
competent evidence. Second, the Commission’s conclusion that McAtee’s testimony was the
only evidence linking his herniated disc to March 9, 2004, is not supported by a review of the
record.
     1. The Commission’s finding that McAtee’s testimony was not credible is not supported by
        substantial and competent evidence.
          The Commission’s denial of McAtee’s claim was largely based on the Referee’s finding
that McAtee’s testimony was not credible because he “improved” or “enhanced” his testimony
by adding the specific detail about hitting the drain ditch. At the oral hearing on this matter,
McAtee testified as follows:



                                                 4
         Q. So let’s go back to March 9 now of 2004. So you start your shift, tell
me what you did until the 5:45, 6:00 o’clock break?
     ....
         Q. Were you suffering or having any problems physically that day up
until that 5:45 to 6:00 o’clock break?
         A. Felt pretty good, was going really really [sic] a fast pace shift, felt
pretty good, you know, I was warmed up, was you know, getting in my grove up
[sic]. I’m driving along, screaming and got my radio turned up and cussing and
hollering and jumping and you know, doing my regular thing. I talk to myself.
I’m pretty much -- I mean there’s other people out in the yard but I’m by myself,
so I’ll sing along to the radio or whatever the heck I do, you know.
     ....
         Q. Now, when did you -- when did you get hurt that day on that shift?
         A. It was right after the break, breaks are ten minutes, it was like 5:45,
6:00, somewhere in there.
         Q. And what happened?
         A. Picked up a load of two by ten, was headed into the No. 2 planer, come
across the yard, it was over here I picked it up, coming across, and there’s a drain,
there’s a drain, a hole.
         Q. How big is the drain, just if you can explain it because the court
reporter can’t see your hand gestures.
         A. Two feet by three feet maybe. They repaved that section of the yard a
couple of years ago, it was really really rough, and it used to have concrete
barriers around it, but they took those out and never put them back. When they
re-paved it, they didn’t taper it smooth into the drain. It almost drops four to six
inches down into that drain grate. And so I was coming across the yard, I hit it all
the time, I hit bumps all the time. I hit the damn thing and cruise right in. But I
was coming through, I hit it, and I -- I don’t know how to describe it, I think I
have written sore or tender or -- I don’t know how to describe it. I had a strange
feeling.
         Q. Where?
         A. Right down in the back of my -- my back of my back. I mean it wasn’t
-- it wasn’t.
         Q. High or low in your back?
         A. Really down at the very bottom, down low. I can’t say that it was like
a knife going in, it was definitely something different. And I cruised on with my
shift, I’m -- we were running like hell, run in, take the blocks off, keep going
about it, you know, and it starts to get hurting.
         Q. When did it start to hurt.
         A. Shortly thereafter it started to continue through the whole shift to get
worse, more painful -- towards the last break I mean it felt like there was -- I was
being stabbed by a knife. It was radiating up through my shoulders, down my
legs, I couldn’t sit up straight. I was driving the lift truck like this, it was
everything I could do to get out --
         Q. When you say “like this” --




                                         5
                 A. I was bent over, leaning over, because I couldn’t sit up straight . . .
        Any ways, I tried to call the supervisor . . . but I tried to call him several times on
        the radio and couldn’t get a hold of him.
                 Q. Over what time frame?
                 A. Within 30, 45 minutes of me hitting it and starting to experience the
        stuff, the pain and that, to up until the time I got a hold of him.
            ....
                 Q. What did you tell him?
                 A. What I did, what happened . . . told him basically what I just said, he
        said are you going to be able to finish your shift and I says well, I’m going to do
        everything I can, I’ve been here dealing with it, what’s 45 more minutes. And
        [he] says, great, I got to run, I got all this other stuff going, and I said okay. And
        that was that.
                 Q. So what did you do?
                 A. Finished my shift.
        The Referee explained his findings on the weight and credibility of McAtee’s testimony
as follows:
        McAtee’s testimony at hearing differed substantially from the vague and general
        descriptions he offered for the first year after the alleged event. McAtee’s recent
        “improvement” upon his description of the alleged event is not credible.

        In Painter v. Potlatch Corp., 138 Idaho 309, 313, 63 P.3d 435, 439 (2003), this Court
noted that we have bifurcated the issue of the Commission’s findings regarding credibility into
two categories, “observational credibility” and “substantive credibility.” There we stated:
        Observational credibility “goes to the demeanor of the appellant on the witness
        stand” and it “requires that the Commission actually be present for the hearing” in
        order to judge it. Substantive credibility, on the other hand, may be judged on the
        grounds of numerous inaccuracies or conflicting facts and does not require the
        presence of the Commission at the hearing. The Commission’s findings regarding
        substantive credibility will only be disturbed on appeal if they are not supported
        by substantial competent evidence.
Id. (internal citations omitted).
        As permitted by I.C. § 72-506, the Commission adopted the findings of fact, conclusions
of law, and recommendation of the Referee as its own.              The Referee did not make any
conclusions as to McAtee’s demeanor on the stand. Therefore, his observational credibility is
not in question.     Rather the referee found his testimony was not credible because this
improvement or enhancement of his story “differed substantially” from his previous accounts.
Thus, the Referee made a substantive determination as to the credibility of McAtee’s testimony.




                                                  6
As such, the Commission’s findings regarding McAtee’s substantive credibility will only be
upheld if they are supported by substantial and competent evidence. Id.
       We find that the Commission’s conclusions as to McAtee’s substantive credibility are not
supported by the record. Although his descriptions as to the cause of his injury were more vague
prior to oral hearing, McAtee consistently maintained that his injury arose from the jostling and
vibrations of his forklift. The Minor Care Report from the St. Joseph Medical Center dated April
1, 2004 (only 3 weeks after the alleged accident), states the following: “David is a 36 year old
gentlemen with magnetic resonance imaging proven L5-S1 disc bulge. He has been managing
his back for the last few weeks, his initial injury to his back was a fork lift accident almost a
month ago.” Additionally, reports from S.P.O.R.T Physical Therapy Clinic dated May 18, 2004
(only 2 months, 9 days after the alleged accident), report the history of injury to be “Driving
Forklift – bouncing / lifting heavy blocks.” On March 29, 2004 (10 days after the alleged
accident), McAtee filed a short term disability claim and checked “yes” to the question “Did
your work cause this condition?” To the question “How did injury happen?” McAtee wrote,
“driving lift truck and performing regular duties at work.”         When McAtee visited Dr.
Greggain, on March 11, 2004 (2 days after the alleged accident), Dr. Greggain recorded that
McAtee denied recollection of any injury “other than the work of the yardlift he operates and
jostling.” Of greatest significance, however, is the fact that McAtee immediately reported his
injury to his supervisor during his shift on March 9, 2004, and the First Report of Injury or
Illness, which was prepared by Potlatch’s Safety Manager, reads: “At approximately 11:00 P.M.
on 3/9/2004, employee reported soreness of the back to his supervisor. Employee stated his back
was sore due to bouncing in the Yard Lift.” Further it states that the “Specific Activity” and
“Work Process” the “Employee Was Engaged in at Time of Occurrence” to be “Driving Yard
Lift Truck.”      Therefore, the Commission’s determinations that McAtee’s testimony at oral
hearing “differed substantially” is not supported by substantial and competent evidence since
McAtee consistently stated that his injury arose while he was operating his fork lift on March 9,
2004, whilst experiencing jostling, vibrations, and bouncing.
       Credibility of witnesses and evidence is a matter within the province of the Commission.
Zapata, 132 Idaho at 515, 975 P.2d at 1180. As such, the Commission’s findings on weight and
credibility will not be disturbed on appeal if they are supported by substantial and competent
evidence.   Id.    Because we find that the Commission’s findings on McAtee’s substantive



                                                7
credibility are not supported by substantial and competent evidence, this Court is not bound by
those findings on appeal and may review the factual record in a light independent of those
findings.
   2. The Commission’s conclusion that McAtee’s testimony was the only evidence linking his
      herniated disc to March 9, 2004, is not supported by a review of the record.
       The Commission concluded that McAtee’s injury was not the result of a compensable
accident. We disagree. An accident occurs if “the strain of the claimant’s ordinary and usual
work resulted in violence to the physical structure of the body.” Hutton v. Manpower, Inc., 143
Idaho 573, 575, 149 P.3d 848, 850 (2006). A claimant “must prove not only that he was injured,
but also that his injury was the result of an accident arising out of and in the course of his
employment.” Neufeld v. Browning Ferris Indus., 109 Idaho 899, 902, 712 P.2d 600, 603
(1985). “An injury is considered to arise out of employment when a causal connection exists
between the circumstances under which the work must be performed and the injury of which the
claimant complains.” Spivey v. Novartis Seed, Inc., 137 Idaho 29, 33, 43 P.3d 788, 792 (2002).
“If there is doubt surrounding whether the accident in question arose out of and in the course of
employment, the matter will be resolved in favor of the employee.” Page, 141 Idaho at 347, 109
P.3d at 1089 (citing Dinius v. Loving Care & More, Inc., 133 Idaho 572, 574, 990 P.2d 738, 740
(1999)).
       To prevail on a worker’s compensation claim, a claimant must establish an accident by a
preponderance of the evidence. Painter, 138 Idaho at 312, 63 P.3d at 439. “A claimant has the
burden of proving a probable, not merely a possible, 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 concluded that McAtee did not carry his burden in proving his
injury was the result of a compensable accident. The Referee stated:
       McAtee’s testimony about what happened and whether his symptoms were acute
       is without other support of record. It provides the only link between the herniated
       disc and March 9, 2004. McAtee’s initial reports to his doctors do not support a
       finding of a compensable accident. Some specific event or sudden onset of pain
       at a minimum is required . . . Here, the medical experts agree McAtee suffers
       from degenerative disc disease and a herniated disc. They agree that, in general,
       his work contributed to the development of his degenerative disc disease. The
       medical experts disagree about whether the herniated disc was caused by an event
       at work . . . The record does not include X-rays or MRIs taken before March 9,
       2004, if any exist. McAtee had longstanding back complaints which included
       complaints of intermittent radiating pain . . . In the face of prior complaints of


                                               8
       infrequent radiating pain and McAtee’s willingness to enhance his testimony,
       McAtee failed to show his condition was caused by a compensable accident.
       Whether an injury arose out of the course of employment is a question of fact to be
determined by the Commission. Kessler, 129 Idaho at 859, 934 P.2d at 32. Although this Court
may review the Commission’s factual findings, this Court must limit its review to determining
whether the Commission correctly denied benefits after it applied the law to the relevant facts.
Id. The Commission’s factual findings will not be disturbed on appeal so long as they are
supported by substantial and competent evidence. I.C. § 72-732; Neihart, 141 Idaho at 803, 118
P.3d at 135.
         The claimant must 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. Jensen, 135 Idaho at 412, 18 P.3d at 217 (citing Hart v. Kaman Bearing & Supply,
130 Idaho 296, 299, 939 P.2d 1375, 1378 (1997)); Duncan v. Navajo Trucking, 134 Idaho 202,
203, 998 P.2d 1115, 1116 (2000). “In this regard, ‘probable’ is defined as ‘having more
evidence for than against.’” Soto v. Simplot, 126 Idaho 536, 540, 887 P.2d 1043, 1047 (1994).
       Our review of the record overwhelmingly indicates that McAtee was injured during his
work shift on March 9, 2004. McAtee provided ample medical evidence that he experienced an
acute onset of pain on March 9, 2004. Despite the Referee’s finding that, “McAtee’s initial
reports to his doctors do not support a finding of a compensable accident. Some specific event
or sudden onset of pain at a minimum is required,” both Dr. Colburn and Dr. Greggain stated
that the acute onset of pain which McAtee experienced on March 9, 2004, is consistent with a
finding that his disc herniated at that time. A claimant need not show that he suffered an injury
at a specific time and at a specific place. Hazen v. Gen. Store, 111 Idaho 972, 992, 729 P.2d
1035, 1055 (1986), rehearing denied (1986); Wynn v. J.R. Simplot Co., 105 Idaho 102, 666 P.2d
629 (1983). The accident need only be reasonably located as to the time when and the place
where it occurred. See Spivey, 137 Idaho at 33, 43 P.3d at 792 (holding that the claimant need
only prove the day and place of the accident). Whether or not McAtee’s disc herniation occurred
at the moment he struck a drain ditch is not essential to a finding that his injury was the result of
a work related accident on March 9, 2004. An employee incurs an injury in the course of
employment, if the worker is doing the normal duties that he is employed to perform. Spivey,
137 Idaho at 34-35, 43 P.3d at 793-94. Both Dr. Colburn and Dr. Greggain stated that it was not



                                                 9
necessary that McAtee had hit a drain ditch or experienced some other catastrophic event for his
disc to have herniated at that time. Both Dr. Colburn and Greggain stated that any of his normal
work activities on March 9, 2004, could have resulted in his herniated disc. When an injury
occurs on an employer’s premises, a presumption arises that the injury arose out of and in the
course of employment. Kessler, 129 Idaho at 859, 934 P.2d at 32 (1997); Foust v. Birds Eye
Div., 91 Idaho 418, 419, 422 P.2d 616, 617 (1967).
       Here, neither Potlatch nor Surety offers any substantial evidence to contradict McAtee’s
production of medical evidence which indicates that his acute onset of pain during his work shift
on March 9, 2004, represented an acute change in his condition corresponding with the onset of
his disc herniation. The evidence which Potlatch and Surety assert repudiates McAtee’s claims
consists primarily of a series of forms from Dr. Greggain’s office.
       The most significant of these forms was an inquiry form that Surety sent to Dr. Greggain.
On the form, Dr. Greggain circled “no” in response to the question, “[o]n a more probable than
not basis do you feel that Mr. McAtee sustained an injury on March 9, 2004?” Surety officially
denied McAtee’s claim a week after it received this form back. However, Dr. Greggain did not
merely check the “no” box but elaborated in handwriting on the form, “I believe this is a
culmination of longstanding mechanical and degenerative changes that finally led to disc failure
and nerve entrapment.” Additionally, Dr. Greggain made it clear in his deposition that, despite
his checking the “no” box on this form, it was his medical opinion that McAtee’s disc failure was
a “specific event” and that “[t]he symptoms that he reports on March 9th are consistent with
nerve root compromise, and that happened acutely on March 9 without a specific known
catastrophic injury.” Because Dr. Greggain specifically stated in his deposition that it was his
medical opinion that McAtee’s injury occurred during his work shift on March 9, 2004, the box
checked “no” on the Surety’s inquiry form is not evidence that a reasonable mind would use to
support the conclusion that McAtee’s injury was not work related. Rather it merely illustrated
Dr. Greggain’s opinion that, although he believed the disc herniation occurred during McAtee’s
March 9, 2004, workshift, no catastrophic event triggered it.
       An additional piece of evidence used to dispute McAtee’s claim were the discrepancies in
insurance claim forms originating from the office of Dr. Greggain. The forms dated March 12,
2004, contained checked boxes indicating McAtee’s condition was related to employment and
“other accident,” but claim forms dated April 2 and 7, 2004, contained checked boxes indicating



                                                10
McAtee’s condition was not related to employment or “other accident.” However, Dr. Greggain
testified that he did not personally check the boxes, and that he had never even seen the
insurance claim forms, and that they were most likely filled out by a billing clerk, and thus had
no bearing on his medical diagnosis but were rather related to billing purposes. Therefore, the
checked boxes on these forms are not evidence that a reasonable mind would use to support a
conclusion that Dr. Greggain believed McAtee’s injury was not work related.
       Also presented as evidence that McAtee’s injury was not work related was a statement of
continuing disability completed by Dr. Greggain’s partner, Dr. MacKay, which contained boxes
checked both “yes” and “no” with a question mark nearer the “no” box in response to the
question, “Is condition due to injury or illness arising out of employment?” At his deposition, Dr.
Greggain explained the ambiguities:
       No. I believe that the work -- the employment did contribute to, as I mentioned .
       . . in the previous record, the disc failure . . . And we have this sort of question all
       the time that comes up. Is this employment related? Certainly. Is it due to an
       injury arising out of employment? It’s very difficult to identify an injury or illness
       specifically out of the employment . . . So, we -- Dr. MacKay and I both tend to
       be somewhat ambiguous to the answer to that question.
Because of the ambiguity inherent in checking both the “yes” and “no” boxes, and in light of Dr.
Greggain’s comments at deposition that he and his partner are intentionally ambiguous in
answering that question, this form cannot be considered evidence that Dr. Greggain or Dr.
MacKay believed McAtee’s injury was not work related.
       Surety and Potlatch also point to Dr. Greggain’s referral to Dr. Dietrich where he states
that McAtee recalled no injury “other than the work of the yard lift he operates and jostling,” to
contradict McAtee’s claim that he was injured at work. However, this phrasing does not indicate
that Dr. Greggain believed that McAtee’s disc herniation was not causally related to his work. It
merely indicated that McAtee had not told him about any catastrophic event that induced his
injury and that McAtee merely thought, in congruence with his oral testimony, that it was merely
the jostling of the yardlift that hurt his back that night. Dr. Greggain was questioned about this
form in his deposition:
           A. What specifically I was ruling out was that he hadn’t bent over and picked
       up a hundred pound piece of wood and suddenly got a pain, or that he hadn’t
       twisted or fallen or dropped something that had created the pain. He was doing
       his job. He wasn’t doing anything unusual, other than the work he was
       employed to do, and while so doing that work he developed this pain.



                                                 11
       ....
           Q. And it would be the work on the yard lift that he was operating and the
       jostling on March 9, 2004?
           A. On the day of the pain onset, yes.
           Q. Which was March 9?
           A. March 9th.
       This Court has held that no special verbal formula is necessary when a doctor's testimony
plainly and unequivocally conveys his conviction that events are causally related. Jensen, 135
Idaho at 412-13, 18 P.3d at 217-18 (citing Paulson v. Idaho Forest Indus., Inc., 99 Idaho 896,
901, 591 P.2d 143, 148 (1979), overruled on other grounds by Jones v. Emmett Manor, 134
Idaho 160, 165, 997 P.2d 621, 625 (2000) (holding that “To the extent Dean v. Dravo Corp., 95
Idaho 558, 511 P.2d 1334 (1973) and Paulson . . . suggest a requirement of oral medical
testimony in every case, the suggestion is disavowed.”)).      Rather even if a doctor expressly
refuses to say the words “reasonable degree of medical probability,” it can still be clear from his
or her testimony that he or she considers that a claimant’s injury more likely than not was caused
by a work related accident. Jensen, 135 Idaho at 412, 18 P.3d at 217.
       Dr. Greggain’s reluctance to expressly state that McAtee’s injury arose from a work
related accident appears to stem from his hesitancy to draw a legal conclusion on whether an
injury induced by normal work activities without some accompanying catastrophic event was the
result of a work related “accident.” On the other hand, Dr. Greggain’s comments in deposition
indicate that, although he was reluctant to use the word accident or injury, he clearly considered
McAtee’s disc herniation to be causally related to his work activities on March 9, 2004. He
stated as follows:
           Q. And the injury itself doesn’t have to be catastrophic; it could be simply the
       bouncing and jostling as you’ve said.
           A. Which under normal circumstances wouldn’t be considered an injury.
       That would not be something where you go to work and expect that to be an
       injurious situation.
           Q. Would it be keeping with your understanding of a disc failure that he
       could be bouncing on his machine or jostling and one particular jostle caused the
       disc to fail?
           A. Any one of a small microtraumas can take place at any point in time, any
       of which can be the final straw that broke the camel’s back.
           Q. And in this case, we are talking about the straw the broke the camel’s back
       because you said he was working relatively uninterrupted up to March 9?
           A. That was my understanding.




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           Q. So, at that point for the symptoms to onset during his shift on March 9,
       what would you have expected then to have been the straw that broke the camel’s
       back so to speak.
           A. Any one of a number of activities he would engage in during the course of
       the evening of March 9th.
           Q. And would this also be consistent, then, with the onset of his pain?
           A. It would.
       This Court has refused to adopt an overly narrow and overly technical construction of an
“accident” requiring that an employee slip or fall, or that the machinery fail, or that the worker
do something other than what he habitually does. Wynn, 105 Idaho at 104-05, 666 P.2d at 631-
32. Under our Worker’s Compensation law, “‘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). In Page, this Court held that the mere rising from a chair constituted an
accident when it resulted in a sudden injury to an employee’s knee. 141 Idaho 342, 109 P.3d
1084. In Spivey, this Court held that when a seed sorter reached across the belt and injured her
shoulder during her normal work routine this constituted an accident. 137 Idaho 29, 33, 43 P.3d
788. In Hammond v. Kootenai County, 91 Idaho 208, 209, 419 P.2d 209, 210 (1966), we held
that an accident occurred when a deputy sheriff with arterial disease died from a ruptured or
occluded cerebral blood vessel after having climbed up and down a roadside embankment at a
nighttime car crash scene.
       In Wynn, a case which shares factual similarities to the instant one, we had the
opportunity to address whether a disc rupture resulting from the regular vibrations and jostlings
of heavy machinery could constitute a compensable injury under our worker’s compensation
law. That case involved an employee at Simplot’s Gay Mine who suffered a disc herniation
while operating a front end loader at work. Id. at 102-03, 666 P.2d at 629-30. Wynn presented
uncontradicted medical evidence from his physician that his disc rupture was the result of the
jarring and shaking of the heavy machinery. Id. at 102, 666 P.2d at 629. Simplot offered no
direct testimony nor any evidence of any kind to rebut the uncontroverted testimony of Wynn’s
attending physician, which indicated that his injury occurred while he was working his front end
loader. Id. at 105, 666 P.2d at 632. The Commission denied Wynn benefits, however, because
of Wynn’s failure to establish that his condition was caused by an accident in that “no distinct




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mishap or event was established, which was causative of the claimant's problems.” Id. at 103,
666 P.2d at 630. In that case we stated:
       [R]espondent on this appeal suggests that under the definition of “accident,” it is
       required “that an injury to be compensible [sic] must be caused by an event or
       mishap which can reasonably be located as to time when and place where it
       occurred, conditions resulting from repetitive trauma over a period of time which
       is not reasonable are not compensible [sic].” We disagree.
           As to the “event” or “mishap,” however it might be characterized, there is no
       question but that it took place at 7:30 p.m., March 17, 1980, on the premises of
       the employer at the Gay open pit mine approximately 17 miles from Pocatello
       while Wynn was engaged in his usual work of operating a front end loader.
       Hence, the sole basis for the Commission’s holding must be that what occurred on
       that day at 7:30 p.m. was not an “accident” as contemplated by Idaho's
       Workmen’s Compensation Act.
           We cannot agree with the Commission or Simplot’s overly narrow and overly
       technical construction in view of the circumstances presented in the instant case.
       If the injury had occurred from the “event” which Wynn testified occurred some
       days earlier, i.e., that he, while working, stepped down from the loader, slipped on
       some ice and fell, the Commission and the respondent would evidently concede
       that such constituted a [sic] “accident” for which claimant would be compensated.
       If a small pebble had been thrown up from the wheels striking Wynn in the face
       and causing him to jerk his body and the injury had resulted, we doubt not that
       such would be deemed an “accident” for which claimant should be compensated.
            Although respondent Simplot invites the Court to engage in a semantic
       distinction analysis of whether an injury which results from repeated trauma falls
       within the category of occupational disease as distinguished from the category of
       industrial accident or neither, we decline the invitation. It is enough to note that
       claimant here, as indicated by the medical evidence, suffered his injury at a
       particular time, at a particular place, while engaged in his normal and ordinary
       work for his employer. The fact that Wynn’s spine may have been weak and
       predisposed him to a ruptured disc does not prevent an award since our
       compensation law does not limit awards to workmen who, prior to injury, were in
       sound condition and perfect health. Rather, an employer takes an employee as he
       finds him.
Id., at 104, 666 P.2d at 631 (internal citations omitted).
       In resolving McAtee’s claim, we find Wynn illustrative. McAtee presented medical
evidence indicating that the onset of his pain and symptoms during his work shift on March 9,
2004, coincided with the specific event of a disc herniation. McAtee’s medical evidence was
unrebutted by any substantial and competent evidence. The fact that McAtee’s spine may have
been weak and predisposed him to a herniated disc does not prevent an award since under our
compensation law an employer takes a worker as he finds him. Id. McAtee’s own chiropractor,



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Dr. Kurt Bailey, examined McAtee less than three months before his alleged accident and stated
that there was no evidence that McAtee showed symptoms of a herniated disc, sciatica, or other
serious back problems at this time. The fact that no catastrophic event triggered McAtee’s disc
herniation does not preclude a finding that his injury is compensable. McAtee’s doctors agreed
that any of a number of his normal work activities on March 9, 2004, could have been the
trigger. “As this Court has repeatedly stated, ‘If the claimant be engaged in his ordinary usual
work and the strain of such labor becomes sufficient to overcome the resistance of the claimant's
body and causes an injury, the injury is compensible [sic].’” Id. It was enough here that, while
McAtee was engaged in his normal work duties, his back finally succumbed to the wear and tear
of his years of hard labor at a specific point in time, i.e., his March 9, 2004, shift at Potlatch.
        In light of Dr. Greggain’s statements at deposition qualifying the medical forms which
originated from his office, the evidence contained in those forms cannot be considered to be
substantial evidence contradicting McAtee’s presentation of medical evidence. Therefore, in the
absence of any substantial and competent evidence which contradicts McAtee’s presentation of
medical evidence establishing that the specific event of his disc herniation was marked by an
onset of pain and symptoms on March 9, 2004, while he was engaged in his normal work
activities, we find the Commission’s determination that “McAtee’s testimony about what
happened and whether his symptoms were acute is without other support of record. It provides
the only link between the herniated disc and March 9, 2004,” is not based on substantial and
competent evidence. Consequently we reverse the order of the Commission denying McAtee
benefits for the stated reason that he “failed to show his herniated disc was caused by a
compensable accident” and remand for proceedings consistent with this opinion.
B. McAtee’s request for attorney fees and costs is granted.
        Both McAtee and Respondents in this matter have requested attorney fees. Attorney fees
are not granted to a claimant as a matter of right under worker’s compensation law, but may only
be affirmatively awarded under the circumstances set forth in I.C. § 72-804. Wutherich v.
Terteling Co., Inc., 135 Idaho 593, 595, 21 P.3d 915, 917 (2001); Troutner v. Traffic Control
Co., 97 Idaho 525, 528, 547 P.2d 1130, 1133 (1976). Idaho Code § 72-804 provides:
                Attorney's fees—Punitive costs in certain cases.—If the commission or
        any court before whom any proceedings are brought under this law determines
        that the employer or his surety contested a claim for compensation made by an
        injured employee or dependent of a deceased employee without reasonable



                                                  15
       ground, or that an employer or his surety neglected or refused within a reasonable
       time after receipt of a written claim for compensation to pay to the injured
       employee or his dependents the compensation provided by law, or without
       reasonable grounds discontinued payment of compensation as provided by this
       law. In all such cases the fees of attorneys employed by injured employees or
       their dependents shall be fixed by the commission.

Id. (emphasis in original).
       McAtee asserts that he is entitled to attorney fees because the Respondents’ denial of his
claim was unreasonable.       We agree.   The record overwhelmingly indicates that McAtee
herniated his disc during his work shift on March 9, 2004. Therefore, denial of his claim was
unreasonable. For that reason, we award attorney fees and costs to Appellant for all stages of
McAtee’s claim including those below, on appeal, and on remand.
                                     IV. CONCLUSION
       We reverse the order of the Commission denying McAtee worker’s compensation
benefits for the stated reason that he “failed to show his herniated disc was caused by a
compensable accident” and remand for proceedings consistent with this opinion. Furthermore,
we award attorney fees and costs to Appellant.


   Chief Justice EISMANN and Justices BURDICK, J. JONES and W. JONES, CONCUR.




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