                IN THE SUPREME COURT OF THE STATE OF IDAHO

                                      Docket No. 42521

TODD LAWRENCE HAMILTON, Deceased, )
                                       )
    Claimant-Respondent,               )
                                                            Boise, May 2015 Term
                                       )
v.                                     )
                                                            2015 Opinion No. 53
                                       )
ALPHA SERVICES, LLC, Employer, and     )
                                                            Filed: June 22, 2015
DALLAS NATIONAL INSURANCE CO.,         )
Surety,                                )
                                                            Stephen W. Kenyon, Clerk
                                       )
    Defendants-Appellants.             )
______________________________________ )

       Appeal from the Idaho Industrial Commission.

       The decision of the Industrial Commission is affirmed.

       Bowen & Bailey, LLP, Boise, for appellants. Nathan T. Gamel argued.

       Starr Kelso, Coeur d’Alene, argued for respondent.

                                _________________________

J. JONES, Justice
       Todd Hamilton died in an automobile accident while employed by Alpha Services, LLC.
The Idaho Industrial Commission found that the accident arose out of and in the course of
Hamilton’s employment and determined that Hamilton’s widow and two children are entitled to
statutory death benefits under Idaho’s worker’s compensation laws. Alpha and its surety, Dallas
National Insurance Company, argue on appeal that the Commission’s decision is not supported
by substantial and competent evidence. We affirm.
                                     I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       Todd Hamilton was hired in September of 2011 by Alpha Services, LLC, to work at its
logging operation in Wyoming. The operation was located on United States Forest Service land
in southern Wyoming approximately forty miles southwest of Laramie and twenty-eight miles
northeast of Walden, Colorado, spanning Wyoming Highway 230. The active logging site was


                                              1
located about three-quarters of a mile along a dirt road extending west from Highway 230.
Approximately one hundred feet south on Highway 230, another dirt road extends east to an
area, roughly a hundred feet from the highway, in which Alpha placed a shipping container to
store supplies and equipment. Hamilton was hired primarily to operate logging equipment at the
Wyoming site, but was also required to perform services as a mechanic. He moved to Wyoming
from his home in Rathdrum, Idaho, to begin work on September 17, 2011, and rented a house on
Highway 230 about a mile north of the road leading to the active logging site. Though Alpha
provided Hamilton with an advance to help him secure housing, it did not directly compensate
Hamilton for his housing and travel expenses.
       On December 7, 2011, Hamilton and Leodegardio Cortes de la Cruz (“Leo”) were to run
back-to-back shifts on the same piece of logging equipment. Leo had worked at the Wyoming
site before Hamilton was hired, but was returning there to begin work on December 7 after
having worked for Alpha at another logging site. On December 6, Hamilton and Leo discussed
by telephone how they would coordinate the double shift. In consultation with Robert Wade
Zaharie, Hamilton’s supervisor and Alpha’s co-owner, they determined that Hamilton would
work a morning shift, from two or three to noon, when Leo would begin his afternoon shift.
       Hamilton and Leo also discussed how they would share use of the company vehicles.
Alpha had three company trucks available at the Wyoming site: a blue Dodge service truck, a
white Dodge service truck, and a white Mazda pickup. The service trucks, but not the Mazda,
were equipped with a large number of tools for repair and maintenance of the logging equipment.
Because of its fuel efficiency, the Mazda was used primarily to retrieve parts from Laramie and
elsewhere. Alpha required that service trucks be available for use at the active logging site and
prohibited the use of any company vehicles for personal errands. However, Hamilton was
permitted to drive the service truck from his rental home to work and back, as long as it could be
retrieved by anyone who might need it. Hamilton used the blue service truck during his time with
Alpha. Leo had used the same truck when he worked at the Wyoming site. According to Leo, he
and Hamilton addressed the use of the blue service truck in their conversation on December 6. A
private investigative report submitted as an exhibit by Alpha attributes the following input to
Leo:
   Mr. Hamilton and Leo were planning to have a service truck at all times at the job site.
   [Leo] believes that he and Mr. Hamilton were going to trade trucks at some point. [Leo]
   stated that the service truck has all the tools so it would be needed at the job site. Since

                                                2
    this would be their first day working the same job, however, separate shifts, they were
    attempting to work out the details about who would have what truck and at what time.
Leo later testified that he and Hamilton “were going to see how it was going to work,” and were
planning to discuss switching trucks at some point, but had no arrangement to meet on December
7 to do so. Leo also claimed that there was no immediate need to switch trucks because he had
the white service truck available to him. 1
         At around three on the morning of December 7, Hamilton began his shift. At around 6:30
a.m., Hamilton woke Zaharie to tell him that a hydraulic cylinder on the piece of equipment he
was operating was leaking. After Hamilton and another employee removed the cylinder, Zaharie
took the part to Laramie to be repaired. Zaharie returned with the repaired cylinder at around
11:30 a.m., and Hamilton and another employee reinstalled the part. At about noon, Leo began
his shift, and Hamilton left the active logging site in the blue service truck.
         There is no evidence concerning Hamilton’s activities between noon and 2:00 p.m. At
2:05 p.m., Hamilton called his wife, Tawni, in Rathdrum, Idaho. 2 According to Tawni, Hamilton
told her he had worked an early shift, was tired, felt ill, was frustrated that the logging equipment
was malfunctioning, and was driving to purchase groceries. The nearest grocery store was
roughly thirty miles away in Walden, Colorado. Though Hamilton’s dependents argued below
that it was unclear whether he drove his personal vehicle or the blue service truck to Walden, the
Commission found that he drove the blue service truck. That finding is not disputed on appeal.
By running a personal errand in a company vehicle, Hamilton violated Alpha’s policies
regarding the use of those vehicles. Hamilton called Tawni again at 2:44 p.m. and that call lasted
fourteen minutes. Tawni testified that Hamilton told her he had to return to the job site and
seemed frustrated regarding that fact. 3



1
  Zaharie also testified that, because the white service truck was available and the blue service truck could be
retrieved from Hamilton’s home if necessary, there was no need to switch trucks.
2
  Cell reception was not available at the job site and became available only about two miles north or eight miles
south on Highway 230.
3
  In written statements prior to the hearing and in many of her statements during the hearing, Tawni maintained that
Hamilton told her he was going back to the job site, but did not claim that he offered additional detail as to why he
was doing so or where, precisely, he was going. The last time she was asked at the hearing what Hamilton said
regarding returning to the job site, Tawni testified that he stated he was going back “because they had fixed the
breakdown [of the logging equipment] and that that’s where he was going back to and he had to stop at the storage
container first.” Because Tawni had not previously testified that Hamilton made these more specific statements
regarding his return to the job site, the referee elected to disregard them. The referee relied instead only on Tawni’s
consistent testimony that Hamilton stated he was returning to the job site.

                                                          3
         Minutes after ending this conversation, Hamilton was involved in a fatal accident with a
semi-trailer truck. According to a report from the Wyoming Highway Patrol, Hamilton backed
the blue service truck out of the dirt road leading to the active logging site and travelled south on
Highway 230. 4 The report states that as Hamilton attempted a left-hand turn onto the dirt road
leading to Alpha’s storage container he was broadsided by a southbound semi-truck that had
moved into the left hand lane in an attempt to pass. Hamilton’s vehicle was pushed off the road
and the trailer of the semi-truck came to rest on the cab of the blue service truck.
         Just prior to the accident, Leo drove the white service truck to the storage container to
retrieve hydraulic fluid. He was in the storage container and heard the accident when it occurred.
Leo recognized the blue service truck and asked a nearby resident to call 911. Hamilton was
pronounced dead when police arrived on the scene a short time later.
         Tawni filed a worker’s compensation complaint in October of 2012. Alpha and Dallas
National responded by denying benefits, arguing that the accident did not arise out of and in the
course of Hamilton’s employment. A referee held a hearing on July 17, 2013. On January 9,
2014, the referee proposed findings of fact and conclusions of law, and made a recommendation
with respect to benefits. The referee determined that, more likely than not, the accident arose out
of and in the course of Hamilton’s employment. Given these factual findings, the referee
recommended awarding Tawni and Hamilton’s two children burial and income benefits. Though
Hamilton’s dependents requested attorney fees pursuant to Idaho Code section 72-804, the
referee recommended denying that request. On the same day, the Commission adopted the
referee’s proposed findings of fact and conclusions of law, as well as its recommendation to
award benefits and to decline to award attorney fees.
         Alpha and Dallas National filed a motion for reconsideration arguing that there was no
substantial and competent evidence to support the finding that the accident arose out of and in
the course of Hamilton’s employment. The Commission denied that motion. Alpha and Dallas
National promptly appealed, making the same arguments they made below. They argue that, at
best, the evidence suggests Hamilton was on his way to work, but had not yet arrived.
Hamilton’s dependents argue that the Commission erred in declining to award fees under Idaho
Code section 72-804 and that this Court should award fees on appeal under the same statute.


4
  Though Hamilton was backing out of the dirt road leading to the active logging site just prior to the accident, there
is no evidence that Hamilton had just been at the active logging site.

                                                          4
                                            II.
                                    ISSUES ON APPEAL
   1. Whether there is substantial and competent evidence to support the Commission’s finding
      that the accident arose out of and in the course of Hamilton’s employment.
   2. Whether the Commission erred in failing to award attorney fees to Hamilton’s
      dependents under Idaho Code section 72-804.
   3. Whether Hamilton’s dependents are entitled to attorney fees on appeal under Idaho Code
      section 72-804.
                                            III.
                                        DISCUSSION
   A. Standard of Review
          When this Court reviews a decision of the Industrial Commission, it exercises free
   review over questions of law, but reviews questions of fact only to determine whether
   substantial and competent evidence supports the Commission’s findings. Substantial and
   competent evidence is relevant evidence that a reasonable mind might accept to support a
   conclusion. 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) (internal citations
omitted). The Court “views all facts and inferences in the light most favorable to the party who
prevailed before the Commission,” Dinius v. Loving Care & More, Inc., 133 Idaho 572, 574, 990
P.2d 738, 740 (1999), and “liberally construe[s] the provisions of the worker’s compensation law
in favor of the employee, in order to serve the humane purpose for which the law was
promulgated.” Murray-Donahue v. Nat’l Car Rental Licensee Ass’n, 127 Idaho 337, 340, 900
P.2d 1348, 1351 (1995).
   B. There is substantial and competent evidence supporting the Commission’s finding
      that the accident arose out of and in the course of Hamilton’s employment.
       Appellants make the same arguments on appeal that they made below. First, they argue
that there is no substantial and competent evidence that Hamilton was turning on to the dirt road
leading to the storage container for a work-related purpose when the accident occurred. Second,
they argue that, even if Hamilton was turning on to the dirt road for a work-related purpose, he
was merely “coming to” work, had not yet arrived, and so benefits are not appropriate. With
respect to both arguments, Appellants ask this Court to re-weigh evidence and re-evaluate the
Commission’s factual determinations.



                                               5
       “To receive benefits under Idaho’s worker’s compensation regime, a claimant must
establish that he suffered an injury as defined by Idaho Code § 72-102.” Vawter v. United Parcel
Serv., Inc., 155 Idaho 903, 907, 318 P.3d 893, 897 (2014). “Injury” is defined by that statute to
mean “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). An “accident” is
“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 injury.” I.C. § 72-102(18)(b). Where, as here, there was
unquestionably an accident, “the test for determining compensability is two-pronged, and the
claimant must satisfy both elements to be entitled to compensation.” Kessler on Behalf of Kessler
v. Payette Cnty., 129 Idaho 855, 859, 934 P.2d 28, 32 (1997). The claimant has the burden to
show by a preponderance of the evidence that the accident in which he was injured (1) arose out
of and (2) in the course of his employment. Cheung v. Wasatch Elec., 136 Idaho 895, 897, 42
P.3d 688, 690 (2002). “The words ‘out of’ have been held to refer to the origin and cause of the
accident and the words ‘in the course of’ refer to the time, place, and the circumstances under
which the accident occurred.” Dinius, 133 Idaho at 574, 990 P.2d at 740. “An injury is deemed to
be in the course of employment when it takes place while the worker is doing the duty which he
is employed to perform.” Id. at 575, 990 P.2d at 741. “The injury is considered to arise out of the
employment when a causal connection is found to exist between the circumstances under which
the work must be performed and the injury of which the claimant complains.” Id. “The
determination of whether an accident arose out of and in the course of employment is a factual
determination.” Mortimer v. Riviera Apartments, 122 Idaho 839, 845, 840 P.2d 383, 389 (1992).
As a result, “the Court will defer to the Commission’s finding if it is supported by substantial and
competent evidence.” Id. And, “[i]f 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.” Spivey v. Novartis Seed Inc., 137 Idaho 29, 33, 43 P.3d 788, 792 (2002).
       Appellants argue, first, that there is no substantial and competent evidence that Hamilton
was turning on to the dirt road for a work-related purpose when the accident occurred. While the
referee acknowledged that it was not clear precisely why Hamilton was returning to the job site,
he determined and the Commission agreed that it was more likely than not that Hamilton was
doing so to serve Alpha’s interests and in furtherance of his job responsibilities. Hamilton’s

                                                 6
dependents floated the theory below that Hamilton might have been driving to the active logging
site when he saw Leo parked at the storage container and decided to discuss whether the blue
service truck was needed. A private investigative report submitted as an exhibit by Appellants
reports Leo as observing that “there are a lot of possibilities as to what Mr. Hamilton was doing
when the accident occurred, as he could have been checking if it was time to switch trucks;
however, he [Leo] does not know.” Leo later claimed not to remember making this statement to
the private investigator. But, he acknowledges that while there was no immediate need to switch
trucks and no plan to do so at some specific time, he and Hamilton were going to “see how it was
going to go” and determine whether and when it would be necessary to leave the blue service
truck with Leo. Zaharie likewise testified in his deposition that, because it is important to have
the service trucks at the job site, Hamilton may have been checking on the need to leave the blue
service truck. Like Leo, Zarahie later claimed that there was no immediate need to do so,
however. Zaharie also claimed not to know why Hamilton was driving to the storage container,
but speculated that it may have been because Hamilton saw that Leo was there and was going to
check on the status of the hydraulic cylinder. There was some dispute below as to whether
Hamilton would have been able to see that Leo was parked at the storage container from the
highway. Leo claimed that he parked near the storage container, with the container between his
vehicle and the road. He suggested that, as a result, Hamilton may not have been able to see the
white service truck parked from the highway. Later, however, Leo testified that “there is a good
chance” that Hamilton could have seen the white service truck from the highway near the dirt
road leading to the active logging site.
       The referee did not purport to resolve these disputes concerning Hamilton’s reason for
turning down the dirt road, though he did note the theory that Hamilton was checking to see if it
was necessary to trade trucks was “reasonable, and perhaps even plausible.” According to the
referee, it was not necessary to resolve these disputes because, whatever the precise reason
Hamilton was turning down the road leading to the storage container, he was likely doing so in
furtherance of his work. There is substantial and competent evidence to support that conclusion.
Both Zaharie and Leo speculated that Hamilton was turning down the dirt road for a reason
associated with work. The evidence established that Alpha employees regularly drove to the
storage container for work, and no evidence suggested any personal reason why Hamilton might
have turned towards the storage container. More importantly, Tawni testified that Hamilton told

                                                7
her he had to go back to the work site only minutes before he was killed in the accident and that
he seemed frustrated regarding that fact. Given Hamilton’s statement that he “had to” return to
the work site, his apparent frustration regarding that fact, and the fact that he was not feeling well
at the time, it is reasonable to believe that Hamilton was driving to the storage container to
perform some work-related function and not for some personal reason. 5
        Appellants point to evidence that Hamilton was not turning down the dirt road for a
work-related purpose. They note, for instance, that Hamilton had already filled out his time sheet
and was returning from a personal errand, suggesting that he was finished with work for the day.
But, Zaharie testified that Hamilton and other employees occasionally stopped working for a
period, particularly when a piece of equipment was malfunctioning, and later resumed work. He
acknowledged that Hamilton, in particular, sometimes revised his time sheet to reflect additional
time worked. Even if Hamilton could not have gone back on the clock, this Court has held that a
claimant need not be on the clock at the time an accident occurs for the accident to occur in the
course of employment. See, e.g., Nichols v. Godfrey, 90 Idaho 345, 349, 411 P.2d 763, 765
(1966) (holding that the accident occurred in the course of employment where an employee
walking from the building in which she worked to the employer’s parking lot to leave for the day
was struck by a vehicle). Appellants also note that all of the logging equipment was being used
when the accident occurred and, as a result, Hamilton could not have resumed his shift on that
equipment. There is no dispute, though, that Hamilton was employed not only to operate logging
equipment, but to maintain that equipment. As Zaharie speculated, Hamilton may have been
returning to ensure that the broken equipment had been repaired. Whether Hamilton was
checking on the malfunctioning equipment or checking to determine whether it was necessary to
switch vehicles with Leo, the Commission could reasonably conclude from the evidence before it
that Hamilton was acting to “further the work and interests” of Alpha. In re MacKenzie, 55 Idaho
663, 670, 46 P.2d 73, 76 (1935) (holding that an employee who was killed while checking on
malfunctioning equipment, though it was not his job to run or maintain the equipment, was
acting in the course of his employment because he was serving his employer’s interests). The
Commission considered all of the evidence to which Appellants point on appeal. When

5
  Appellants also passingly suggest that Hamilton might not have been turning at all, but might have merely drifted
into the left-hand lane when the accident occurred. That suggestion is contrary to the accident report issued by the
Wyoming Highway Patrol, which states that Hamilton was making a left-hand turn when the accident occurred.
There is no evidence to contravene that report. That suggestion also flies in the face of Tawni’s testimony that
Hamilton said that he was headed back to work.

                                                         8
considering a decision by the Commission, this Court “does not reweigh evidence or consider
whether it would have reached a different conclusion based upon the evidence presented.”
Ginther v. Boise Cascade Corp., 150 Idaho 143, 147, 244 P.3d 1229, 1233 (2010).
       Second, Appellants argue that, even if Hamilton was turning on to the dirt road towards
the storage container to serve Alpha’s interests, Hamilton was merely “coming to” work, but had
not yet arrived, and so benefits are not appropriate. This Court has adopted the so-called “coming
and going rule,” which provides that “compensation is not allowed to workers for injuries
occurring on the way to or from work, based on the perception that such injuries are not
sufficiently causally linked to employment.” Pitkin v. W. Const., 112 Idaho 506, 507, 733 P.2d
727, 728 (1987). As with most rules, this one is subject to a variety of exceptions. See id.
(outlining a series of exceptions). Appellants fixate on one, in particular, and argue that the
exception is inapplicable here, despite the fact that neither the Commission nor Hamilton’s
dependents relies upon it. The “travelling employee” exception to the coming and going rule
provides that “[w]hen an employee’s work requires him to travel away from the employer’s
place of business or his normal place of work, the employee is covered by worker’s
compensation.” Cheung, 136 Idaho at 897, 42 P.3d at 690. Appellants argued below, and argue
again on appeal, that the travelling employee exception to the coming and going rule does not
apply in this case because Hamilton was hired solely to work in Wyoming, was not paid for
housing in Wyoming or for travel to Wyoming, and was not authorized to use company vehicles
to run personal errands in the manner that he did just prior to the accident.
       The Commission found that the coming and going rule is inapplicable in this case
because, for purposes of that rule, Hamilton was at Alpha’s place of business—and not merely
coming to it—when the accident occurred. It is undisputed that Alpha’s employees, including
Hamilton, regularly travelled the short distance between the active logging site and the storage
container to retrieve supplies and equipment, taking precisely the route travelled by Hamilton
when the accident occurred. In fact, Leo was in the storage container in furtherance of his job
duties when the accident occurred. According to Zaharie, the Wyoming work site consisted of
“the container, the jobsite, where they’re parked, all that general area.” The referee endorsed that
view, finding that Alpha’s place of business “included, at a minimum, the active logging area,
the shop container, and the route(s) one would take between the two.” Because Hamilton was
travelling between the dirt road leading to the active logging site and the dirt road leading to the

                                                  9
storage container, the referee determined that, for purposes of the coming and going rule,
Hamilton was not merely coming to work when the accident occurred, but was driving within
Alpha’s place of business.
        Whether Hamilton was at Alpha’s place of business and his normal place of work when
the accident occurred is a factual question for the Commission. The Commission’s conclusion
that he was is supported by substantial and competent evidence. This Court has stated that the
coming and going rule is justified by “the perception that . . . injuries [that occur on the way to or
from work] are not sufficiently causally linked to employment.” Pitkin, 112 Idaho at 507, 733
P.2d at 728. The exceptions to the rule, meanwhile, “arise when there appears a causal
connection” between the injury and the employment. Id. Here, the referee determined that:
    [t]here is a clear connection between the conditions existing on the premises and the
    accident. [Alpha] required the workers to cross a public highway to go to and from the
    storage shed to the active work site, which they had to do on a regular basis. Claimant
    was killed crossing this highway.
The fact that the accident occurred in a place he was regularly asked to work and as a result of
conditions he regularly encountered during his work suggests that the coming and going rule is
inapplicable, whether because Hamilton was already at his place of employment or because some
exception to the rule should govern the case. The Commission did not err in determining that, for
purposes of the coming and going rule, Hamilton was at Alpha’s place of business when the
accident occurred and the coming and going rule is inapplicable.
        The referee relied on Idaho Code section 72-228 to generate a presumption that the
accident arose out of Hamilton’s employment. That statute provides that:
            In any claim for compensation, where the employee has been killed, or is
    physically or mentally unable to testify, and where there is unrebutted prima facie
    evidence that indicates that the injury arose in the course of employment, it shall be
    presumed, in the absence of substantial evidence to the contrary, that the injury arose out
    of the employment and that sufficient notice of the accident causing the injury has been
    given.
I.C. § 72-228(1). Even without the presumption in that statute, however, the Commission’s
factual findings independently establish that the accident arose out of Hamilton’s employment. 6


6
  The Commission also relied upon the rule that “[w]hen an injury occurs on an employer’s premises, a presumption
arises that the injury arose out of and in the course of employment.” Stevens-McAtee v. Potlatch Corp., 145 Idaho
325, 333, 179 P.3d 288, 296 (2008). For the same reason that the presumption in Idaho Code section 72-228 is
largely irrelevant here, this presumption is largely irrelevant as well.


                                                       10
The Commission found that, because of the location of the storage container, Hamilton and other
Alpha employees were required as part of their duties to regularly travel the distance between the
storage container and the active logging site, making left hand turns off of Highway 230, and
exposing themselves to the attendant risk of harm associated with that highway. Because
Hamilton was killed while making such a left hand turn, “there is a clear connection between the
conditions existing on the premises and the accident.”
       Appellants rely heavily on this Court’s decision in Dinius v. Loving Care and More, Inc.,
133 Idaho 572, 990 P.2d 738 (1999), for the proposition that the accident did not arise out of
Hamilton’s employment. Dinius was injured in the parking lot of her employer’s business when
she was struck by a vehicle occupied by her friend when the friend accidentally put the vehicle in
gear. Dinius, 133 Idaho at 573, 990 P.2d at 739. The Commission denied benefits because the
friend was in the running vehicle solely for Dinius’ benefit and convenience. Id. at 576, 990 P.2d
at 742. As a result, the Commission concluded, the accident “was a result of a factor personal to
Dinius” and was not causally related to the employment. Id. This Court affirmed, noting the
deferential standard of review afforded to the Commission’s factual findings. Id. The Court held
that, given the Commission’s view of the facts, “Dinius failed to show that she was injured
because of exposure to a risk incident to her employment.” Id.
       This case differs importantly from Dinius. Unlike in Dinius, the accident was not caused
by an instrumentality somehow personal to Hamilton. The instrumentality was not “imported by
the employee from outside the sphere of employment.” Mayo v. Safeway Stores, Inc., 93 Idaho
161, 163, 457 P.2d 400, 402 (1969). Here, the Commission found as a matter of fact that the
accident occurred as a result of a risk incident to Hamilton’s employment. Given the nature of
the employment, Hamilton and other Alpha employees were inevitably exposed to the risk
associated with the highway. Hamilton was killed as a result of that risk.
       Viewing all facts and inferences in the light most favorable to Hamilton’s dependents and
resolving any doubt as to whether the accident arose out of and in the course of Hamilton’s
employment in favor of them, there is substantial and competent evidence to support the
Commission’s factual finding that the accident arose out of and in the course of Hamilton’s
employment. The Commission did not err in awarding benefits to them.
   C. The question whether the Commission erred in failing to award attorney fees to
      Hamilton’s dependents is not properly before the Court.


                                                11
        Hamilton’s dependents argue that the Commission erred in refusing to grant attorney fees
under Idaho Code Section 72-804. They argue that because Appellants had all of the relevant
facts and law available to them before contesting the benefits, they did not have any reasonable
grounds to do so. The referee recommended not awarding fees in this case because “[t]he
outcome . . . was not necessarily self-evident, and Defendants’ position was not without merit.”
The Commission endorsed that recommendation.
        Idaho Code section 72-804 provides that:
    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 ground . . .
    the employer shall pay reasonable attorney fees in addition to the compensation provided
    by this law.
“Whether or not grounds exist for awarding a claimant attorney fees under Idaho Code § 72-804
is a factual determination that rests with the Commission. The Commission’s decision regarding
the awarding of attorney fees will be upheld if it is based upon substantial, competent evidence.”
Davidson v. Riverland Excavating, Inc., 147 Idaho 339, 346, 209 P.3d 636, 643 (2009). While
the merits of the Commission’s decision are debatable, our appellate rules preclude us from
addressing those merits.
        Idaho Appellate Rule 15(a) provides that:
    After an appeal has been filed, a timely cross-appeal may be filed from any interlocutory
    or final judgment or order. If no affirmative relief is sought by way of reversal, vacation
    or modification of the judgment or order, an issue may be presented by the respondent as
    an additional issue on appeal under Rule 35(b)(4) without filing a cross-appeal.
“In Idaho, a timely notice of appeal or cross-appeal is a jurisdictional prerequisite to challenge a
determination made by a lower court. Failure to timely file such a notice shall cause automatic
dismissal of the issue on appeal.” Miller v. Bd. of Trustees, 132 Idaho 244, 248, 970 P.2d 512,
516 (1998) (internal quotation marks omitted). Though Hamilton’s dependents seek to modify
the decision below, they failed to file a necessary cross-appeal. As a result, the question is not
properly before the Court. See id. (holding that the question whether a district court properly
denied an award of certain fees was not properly before the Court where the respondent failed to
file a cross-appeal).
    D. Hamilton’s dependents are entitled to fees on appeal.
        Hamilton’s dependents request attorney fees on appeal pursuant to Idaho Code section
72-804. “[A]ttorney fees and costs are properly awarded when an appeal asks this Court to do
                                                12
nothing more than reweigh the evidence submitted to the Commission.” Wutherich v. Terteling
Co., 135 Idaho 593, 596, 21 P.3d 915, 918 (2001). Appellants have advanced the same
arguments on appeal as they did below and have simply asked this Court to reweigh evidence
already presented to the Commission. Therefore, attorney fees and costs on appeal are
appropriate.
                                         IV.
                                     CONCLUSION
       We affirm the Industrial Commission’s decision awarding benefits to Hamilton’s
dependents and denying an award of attorney fees below. We award costs and attorney fees on
appeal to Hamilton’s dependents.



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




                                            13
