Dallas Clark v. Shari's Management Corp , 155 Idaho 576 ( 2013 )

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 40393
DALLAS L. CLARK, )
) Idaho Falls, August 2013 Term
Claimant-Appellant, )
) 2013 Opinion No. 122
v. )
) Filed: November 27, 2013
SHARI’S MANAGEMENT )
CORPORATION, Employer, and LIBERTY ) Stephen Kenyon, Clerk
NORTHWEST INSURANCE )
CORPORATION, Surety, )
)
Defendants-Respondents. )
Appeal from the Industrial Commission of the State of Idaho.
The decision of the Industrial Commission is affirmed.
Curtis & Porter, PA, Idaho Falls, for appellant. Paul T. Curtis argued.
Law Offices of Harmon & Day, Boise, for respondents. Kent W. Day argued.
_______________________________________________
HORTON, Justice.
Dallas L. Clark appeals from an order of the Industrial Commission of the State of Idaho
(Commission) denying her worker’s compensation benefits because she failed to prove that an
industrial accident occurred. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Clark started working for Shari’s Management Corporation (Shari’s) in September 2008
as an experienced server. Clark testified that on November 24, 2008, during a graveyard shift,
she suffered a herniated disc in her back while lifting a heavy silverware tray onto a high shelf.
She first sought medical treatment from a chiropractor, Dr. Justin Crook, at Orchard
Naturopathic Center on December 11, 2008. Dr. Crook diagnosed Clark with sciatica and
attributed her injury to lifting and twisting at work. On December 15, about three weeks after her
injury, Clark informed Shari’s that she had been injured at work.
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On December 16, 2008, after the chiropractic treatment proved to be ineffective in
reducing her pain, Clark sought medical care at the Community Care and Injury Center
(Community Care) in Idaho Falls. There, she was again diagnosed with sciatica and prescribed
medication to manage the pain. On December 19, Clark returned to Community Care because of
her pain and was referred to the emergency room at Eastern Idaho Regional Medical Center
(EIRMC). EIRMC records reflect that Clark was experiencing back pain with an “onset of
several days ago.” Clark was diagnosed with lumbar strain and she was prescribed medication
for the pain.
On December 29, 2008, Clark sought medical care from Dr. Gary Walker at Walker
Spine and Sport. Dr. Walker’s records state that Clark’s history of back and leg pain:
[D]ates back to early November. [Clark] did not recall any particular injury but
noted the onset of left lower extremity pain associated with work. It became
sharper over time and has continued to worsen.
Dr. Walker prescribed medication for pain and ordered an MRI. On December 30, Clark
underwent the MRI, which revealed a large left paracentral disc extrusion at L5-S1 which
impacted the S1 nerve root. Due to Clark’s desire to avoid surgery, Dr. Walker advised her to
undergo a series of epidural steroid injections and engage in physical therapy. Clark did not
complete physical therapy because the injections succeeded in reducing her pain.
In March 2009, Clark returned to Dr. Walker because her pain had returned. She received
another injection, and Dr. Walker again recommended physical therapy. On March 19, Clark
completed her first appointment of physical therapy with Stephanie Liddle. Liddle’s treatment
notes recorded that Clark:
[H]as had a four-month history of pain into her left leg. She states the pain came
on suddenly, but she is unaware of any specific injury to cause her pain. She
denies any background of previous history of low back pain and contributes [sic]
this episode to being a server/bartender for many, many years catching up to her
and her not taking care of her body…
Clark participated in a few more sessions of physical therapy but then returned to Dr.
Walker on April 7 because her pain persisted. Dr. Walker recommended consultation with a
surgeon. Clark responded that she was leaving town and would “check with her insurance”
before she proceeded further.
On April 22, 2009, Clark consulted Dr. Stephen Marano, a neurosurgeon, and James
Cook, his physician’s assistant, to discuss the possibility of surgery. Cook noted that Clark:
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[B]egan having some left sided low back and left hip pain at work in early
November. She cannot associate any injuries or trauma to the onset of her pain.
She said that it just kind of started out of the blue. She thought it was maybe due
to her standing funny.
On April 24, 2009, Zach Dummermuth, the general manager for Shari’s, completed
Clark’s First Report of Injury (FROI). The FROI states that on November 24, 2008, Clark
experienced an ache in her low back while she was “standing” and “making salad” and cites
December 15, 2008, as the date that Clark notified Shari’s of the accident. The FROI was
received by the surety on April 28, 2009, and claims investigator Bradley Armstrong interviewed
Clark on May 6. In her statement to Armstrong regarding the circumstances surrounding the
accident, she attributed her injury to “standing wrong” at the salad bar and claimed her injury left
her unable to lift a silverware tub into the water station.
On May 19, 2009, Armstrong sent a letter to Clark denying her claim because “there was
no accident associated with” her injury. Clark decided to proceed with surgery and thereafter
suffered complications from the surgery. On November 3, 2009, Clark filed a worker’s
compensation claim with the Industrial Commission. Clark’s attorney requested an Independent
Medical Evaluation (IME) from Dr. Benjamin Blair in a letter dated May 3, 2011. Dr. Blair
replied in writing, stating that he believed Clark’s injury was based on an accident that occurred
at work because her story was convincing in light of the fact that she had no history of back pain.
A separate IME was completed by Dr. Michael Hajjar at the request of the surety. Dr. Hajjar
opined that Clark’s medical records were inadequate to establish a causal connection with an
industrial accident and later noted that Clark’s delay in obtaining medical treatment after the
alleged accident is evidence that the symptoms did not occur as a result of an industrial accident.
Following a hearing, on March 13, 2012, the Referee issued her Findings of Fact,
Conclusions of Law and Recommendation (the Recommendation) which concluded that Clark’s
claim should be denied. The Commission adopted the Referee’s findings and denied Clark’s
claim because she failed to prove that an industrial accident had occurred. Clark filed a motion
for reconsideration and rehearing. The Commission issued a 21-page memorandum order
denying Clark’s motion in which it held that, although the Referee’s Recommendation contained
factual errors, nevertheless, Clark had failed to prove that an industrial accident had occurred.
Clark timely appealed.
II. STANDARD OF REVIEW
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In reviewing a decision of the Commission, this Court exercises free review over the
Commission’s legal conclusions. Kessler ex. rel. Kessler v. Payette Cnty., 129 Idaho 855, 859,
934 P.2d 28, 32 (1997). When doing so, 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)). However, we limit our review to determining whether the
Commission correctly denied benefits after it applied the law to the relevant facts. Id. The
Commission’s findings of fact will not be disturbed so long as they are supported by substantial
and competent evidence. I.C. § 72-732; Neihart v. Universal Joint Auto Parts, Inc., 141 Idaho
801, 803, 118 P.3d 133, 135 (2005). Substantial and competent evidence is “relevant evidence
which a reasonable mind might accept to support a conclusion.” Matter of Wilson, 128 Idaho
161, 164, 911 P.2d 754, 757 (1996). The Commission’s findings regarding the weight and
credibility of the evidence will not be disturbed so long as they are not clearly erroneous. Zapata
v. J.R. Simplot Co., 132 Idaho 513, 515, 975 P.2d 1178, 1180 (1999). This Court does not re-
weigh the evidence or consider whether it would have reached a different conclusion from the
evidence presented. Neihart, 141 Idaho at 803, 118 P.3d at 135. Rather, we must view all facts
and inferences in a light most favorable to the party who prevailed before the Commission.
Kessler, 129 Idaho at 859, 934 P.2d at 32.
III. ANALYSIS
A. Substantial and competent evidence supports the Commission’s determination that
Clark’s injury did not arise from an accident.
An employee is entitled to compensation under the Worker’s Compensation Act when the
employee suffers an injury that was caused by an accident “arising out of and in the course of
any employment.” Dinius v. Loving Care and More, Inc., 133 Idaho 572, 574, 990 P.2d 738, 740
(1999). Idaho Code § 72-102(18) provides the following definitions:
(a) “Injury” 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.
(b) “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.
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(c) “Injury” and “personal injury” shall be construed to include only an injury
caused by an accident, which results in violence to the physical structure of the
body. The terms shall in no case be construed to include an occupational disease
and only such nonoccupational diseases as result directly from an injury.
“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.” Spivey v. Novartis Seed, Inc., 137 Idaho 29, 33, 43 P.3d 788, 792 (2002). “A claimant
has the burden of proving a probable, not merely a possible, causal connection between the
employment and the injury. . . .” Stevens-McAtee v. Potlatch Corp., 145 Idaho 325, 332, 179
P.3d 288, 295 (2008) (quoting Beardsley v. Idaho Forest Indus., 127 Idaho 404, 406, 901 P.2d
511, 513 (1995)). However, whether an injury arose out of and in the course of employment is
ultimately a question of fact to be determined by the Commission. Kessler, 129 Idaho at 859, 934
P.2d at 32.
Clark asserts that the Referee and the Commission erroneously required “her to prove
‘unusual exertion or mishap as a cause’ of her injury.” Certainly, “an ‘accident’ does not require
a slip or fall, external trauma to the worker’s body, or unusual exertion.” Konvalinka v.
Bonneville Cnty., 140 Idaho 477, 479, 95 P.3d 628, 630 (2004). Tellingly, however, Clark
provides no citation to the record in support of this claim of legal error. We have carefully
reviewed the Recommendation and the Commission’s Order Denying Reconsideration and
Rehearing. The language that Clark purports to quote is nowhere to be found in either document.
We find this claim of legal error to be without merit.
Clark also asserts that the standard that the Commission “should have applied provides
that the injury in Claimant’s case is the ‘unexpected, undesigned, unlooked for mishap’ or
‘accident.’ ” In this regard, Clark is simply wrong. As we noted in Konvalinka, “ ‘[a]ccident’ and
‘injury’ are certainly interrelated definitionally. An accident must cause an injury, and an injury
must be caused by an accident. The terms are not synonymous, however.” Id. at 480, 95 P.3d at
631 (citations omitted). The standard that Clark asserts the Commission should have applied
would eliminate the causal connection between an injury and an accident required by I.C. § 72-
102 and redefine “accident” as “injury.” This Court is required to “give effect to all the words
and provisions of the statute so that none will be void, superfluous, or redundant.” State v.
Schulz, 151 Idaho 863, 866, 264 P.3d 970, 973 (2011). For that reason, we are unable to find that
the Commission erred by failing to apply the standard that Clark proposes.
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Clark “contends that the evidence is clear, substantial, and competent that she suffered a
compensable injury to her back at work waitressing on or about November 24, 2008.” In Neihart,
we noted that this “is not the test applied by this Court on appeals from the Industrial
Commission.” 141 Idaho at 803, 118 P.3d at 135. Rather, the inquiry is “ ‘whether substantial
and competent evidence supports the Commission’s findings.’ ” Id. (quoting Luttrell v.
Clearwater Cnty. Sheriff’s Office, 140 Idaho 581, 583, 97 P.3d 448, 450 (2004)).
Clark’s briefing devotes substantial effort to describing factual errors contained in the
Recommendation. We agree that the Referee made several obvious mistakes in her factual
findings. If the Referee were the ultimate decision-maker, these factual errors might be of
significance to this appeal. However, it is the Commission, not the Referee, which made the final
decision as to Clark’s claim. The Commission acknowledged the Referee’s errors, but found the
mistakes to be “harmless error, in that they do not form the basis of the Commission’s decision
against Claimant.” The Commission explained that its decision to deny Clark’s claim was
“because she failed to prove that an industrial accident occurred” and that it reached this
conclusion because “the information contained in [Clark’s] medical records [was] more credible
than [Clark’s] later statements and testimony.” The Commission found that Clark’s later
accounts of the claimed accident “are so contradictory as to be unreliable,” explaining:
Claimant’s descriptions actively conflict with each other. In her interview with
Surety, she stated that 1) she first felt a twinge of back pain while she was
standing by the salad bar with Michelle, her supervisor, and that in response to
the pain, she joked about her weight; and 2) she later felt a sharp pain while lifting
the silverware tray, so she set down the tray, set her tables, and then lifted the
almost-empty tray onto the shelf.
Later, at deposition, Claimant testified that 1) she first felt pain while she
was bending to clean the salad bar reach-ins, and 2) that she later felt pain while
lifting the silverware tray. Only this time, instead of putting down the tray and
setting tables, Claimant fell and the tray came down on top of her. Aaron
Swenson heard the noise and came rushing out to help Claimant. He picked up the
silverware and helped Claimant to a booth, where she sat for the rest of her shift,
punching orders into the computer.
Finally, at hearing, Claimant testified that 1) she first felt pain after
standing up while cleaning the salad bar reach-ins, and 2) she later felt a sharp
pain while lifting the silverware tray, which caused her to drop it. The tray landed
on the water station, but its momentum carried it to the floor, and though
Claimant herself was falling, she was able to catch herself on the water station’s
ledge.
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Recently, in Harris v. Indep. Sch. Dist. No. 1, 154 Idaho 917, 303 P.3d 604 (2013), we
discussed our previous decisions relating to the scope of the Commission’s authority to make
credibility decisions:
“Determining the credibility of witnesses and evidence” is within the
province of the Industrial Commission. Moore v. Moore, 152 Idaho 245, 254, 269
P.3d 802, 811 (2011). This Court has split its review of credibility determinations
into two categories: observational credibility, and substantive credibility. Id. The
former “goes to the demeanor of the [witness] on the witness stand and it requires
that the Commission actually be present for the hearing in order to judge it.” Id.
“[S]ubstantive credibility may be judged on the grounds of numerous inaccuracies
or conflicting facts and does not require the presence of the Commission at the
hearing.” Id. If the Commission’s credibility findings are supported by
substantial, competent evidence, we will not disturb them. Id.
We have upheld Commission findings of lack of substantive credibility
where a claimant makes inconsistent statements regarding the industrial accident
and the symptoms resulting therefrom. For example, in Painter v. Potlatch Corp.,
138 Idaho 309, 314, 63 P.3d 435, 440 (2003), we upheld the Commission’s
substantive credibility findings where:
[Painter, the employee] did not adequately explain why he
recorded the alleged incidents on his calendar on the days they
occurred but did not report them to his doctors or to his Employer
until weeks later. [Painter] never reported the details of the
incidents to co-workers. At one point, [Painter] testified that he
was uncertain about the location of the forms for “major” versus
“minor” incidents, but Employer has only one form and makes no
such distinction. Finally, inconsistencies exist between [Painter’s]
initial workers’ compensation claim and his later testimony
describing the incidents.
138 Idaho at 314, 63 P.3d at 440. The discrepancies found in the employee’s
description of the accident thus led this Court to conclude that “substantial,
credible evidence supported the Commission's finding that” Painter lacked
credibility. Id. . . .
On the other hand, where employees claiming workers’ compensation
have proffered consistent—though not identical—testimonies, this Court has held
that they have substantive credibility. For instance, in Stevens–McAtee v. Potlatch
Corp., 145 Idaho 325, 329, 179 P.3d 288, 292 (2008), an employee initially gave
a vague account of a forklift accident, but later “ ‘improved’ or ‘enhanced’ ” his
testimony at hearing by adding a specific detail—that while driving the forklift,
he hit a drain ditch. The Commission felt that this addition was a substantial
change that damaged his credibility. Id. We disagreed because, “[a]lthough [the
employee’s] descriptions as to the cause of his injury were more vague prior to
oral hearing,” he “consistently maintained that his injury arose from the jostling
and vibrations of his forklift.” Id. at 331, 179 P.3d at 294. In the face of this
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consistency, the Court held the Commission incorrectly concluded that the
employee's testimony “differed substantially” at hearing. Id.
Id. at 925-26, 303 P.3d at 612-13.
In this case, the Commission recognized our holding in Stevens-McAtee and explicitly
identified the standard that it applied in making its credibility determination: “we look for
substantial consistency supported by the other evidence in the record.” This standard is the
appropriate standard for evaluating substantive credibility.
The Commission explained why it found Clark’s statements were not substantially
consistent:
Either she fell, or she did not fall; either she fell to the floor, or she was able to
catch herself; either she dropped the tray, or she set it down; either she set tables
after the accident, or she rested in a booth for the remainder of her shift; either the
silverware tray actually “came down on” Claimant, or it fell without impacting
her–these are not minor details, easily misremembered; these are material facts
about how the accident occurred. A heavy silverware tray “coming down on” a
fallen person could easily cause injury, perhaps even serious injury, depending on
how heavy it was and what part of the body was impacted, and it defies belief that
if this actually happened, Claimant would have neglected to mention it to Surety.
The Commission then explored the differences between Clark’s accounts of her injury
contained in the early medical records and her testimony at deposition and hearing:
She did not mention any such accident to her medical providers from December
2008 to April 2009. It is true, as Claimant points out, that she “associated” her
pain with work–but only in the general sense of her years of work “catching up to
her,” not in the specific sense of suffering a workplace accident. Claimant pleads
that she has “less that an 8th grade education,” that her understanding of words
such as “injury” and “trauma” are different than a lawyer or doctor’s
understanding, and that is therefore unremarkable that the medical records state
that Claimant reported no injuries or trauma associated with the onset of her pain.
This argument might be more compelling if the records did not also contain the
statement that Claimant’s pain began “out of the blue.” One does not need to be a
lawyer, a doctor, or a highly educated person to be able to explain that her back
began hurting when she lifted a heavy tray at work. Claimant was certainly able to
say those words in her interview with Surety’s investigator, as well as at
deposition and hearing. The Commission does not expect Claimant to use “magic
words,” nor does the Commission expect Claimant to have a doctor or lawyer’s
understanding of the significance of the words “injury” or “trauma,” but the
Commission does expect patients to give a reasonably accurate history of the
onset of their symptoms to their medical providers.
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The facts identified by the Commission appear in the record. Thus, we hold that there is
substantial evidence supporting the Commission’s determination that Clark’s testimony at
deposition and hearing lacked substantive credibility. 1
Clark relies heavily upon our decision in Hazen v. Gen. Store, 111 Idaho 972, 729 P.2d
1035 (1986), in support of her claim that the Commission’s decision should be overturned. This
reliance is misplaced. In Hazen, this Court affirmed the Commission’s denial of a worker’s
compensation claim, finding that the claimant’s disk herniation was the result of the “aging
process” and “not the result of employment.” Id. at 973, 729 P.2d at 1036. There, although
Hazen had discussed her injury with her employer, she did not attribute it to an accident at work
and did not file a Notice of Injury with the Industrial Commission. Id. It was only after Hazen
underwent surgery that she first attributed her injury to a work-related accident. Id. The employer
and employer’s surety submitted a deposition of an orthopedic surgeon who testified that there
was no specific “accident” which caused Hazen’s injury, but that her injury was most likely due
to “gradual onset” over a long period of time. Id. The Commission chose to believe the
orthopedic surgeon’s testimony and the Court held that there was substantial and competent
evidence supporting the Commission’s decision. Id. at 973-974, 729 P.2d at 1036-1037.
Having carefully reviewed the record before us, we are struck by the similarity of the
facts in this case to those presented in Hazen. As with the claimant in Hazen, Clark discussed her
injury with her employer but did not attribute the injury to a specific accident at work until after
discovering that she required surgery. Clark told medical providers that she did not know what
1
Given the Commission’s detailed explanation why it did not find Clark to be credible, it is surprising that a glaring
contradiction in Clark’s testimony that the Referee identified was not included among those which the Commission
identified as supporting its conclusion that Clark lacked substantive credibility. While receiving medical treatment at
Community Care, Clark’s doctor explained how to properly lift heavy items at work so as not to strain her back.
Clark received care from Community Care on December 16, 2008, over twenty days after the date of her alleged
accident. However, in her deposition, Clark testified that she was trying to hold the silverware tray on the day of the
alleged accident like her doctor at Community Care had taught her.
Q. And when you were carrying it, about how high was it? According to your body, in other
words, how high was it?
A. I was trying to carry it because they told me – the doctor I went to at the Community Care, he
said to try to always keep my shoulders center with my knees, you know, not to try to bend outside
of that area. And so I tried - - I always would carry - - I would carry it towards my body.
Clark’s statements and medical records show that Clark received no medical treatment prior to the alleged
accident. Therefore, there is no way that she would have known about this advice prior to the alleged accident.
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the cause of her pain was, attributing it to a variety of reasons including nothing at all (“out of
the blue”), “standing funny,” her weight, working many years as a waitress without taking care
of her body, and work in general. Although Clark indicated her injury might be work-related, she
never suggested that her injury was due to an accident at work until she filed a worker’s
compensation claim after discovering her need for surgery. As we did in Hazen, we find that
substantial evidence supports the Commission’s finding that the Claimant’s injury was not
caused by an industrial accident. We therefore affirm.
B. Neither party is entitled to an award of attorney fees.
Both Clark and Shari’s request attorney fees and costs. The entirety of Clark’s discussion
of attorney fees on appeal is as follows: “Attorney’s fees are requested per I.C. §72-313.” In
order to recover an award of attorney fees on appeal, a party must support the request both by
citation to legal authority and argument. “The mere citation to a code provision, without
explaining how the cited code section provides for an award in the case or providing argument of
how the section applies to the circumstances in the case, is insufficient for an award of attorney
fees on appeal.” Athay v. Rich Cnty., 153 Idaho 815, 827, 291 P.3d 1014, 1026 (2012) (citing
Clair v. Clair, 153 Idaho 278, 291, 281 P.3d 115, 128 (2012)). In addition to these requirements,
the party must actually prevail in the appeal. Friends of Farm to Mkt. v. Valley Cnty., 137 Idaho
192, 201, 46 P.3d 9, 18 (2002).
In this case, Clark has managed to achieve a “dubious trifecta” similar to that which we
observed in City of Meridian v. Petra Inc., 154 Idaho 425, 450, 299 P.3d 232, 257 (2013). She
has not prevailed. She has directed us to a code provision unrelated to awards of attorney fees, 2 a
fact which we recognized over four years ago. See Bradford v. Roche Moving & Storage, Inc.,
147 Idaho 733, 736, 215 P.3d 453, 456 (2009) (“Claimant requests an award of attorney fees
pursuant to Idaho Code § 72–313. That statute has nothing to do with the awarding of attorney
2
Idaho Code § 72-313 provides:
Whenever any claim is presented and the claimant’s right to compensation is not in issue,
but the issue of liability is raised as between an employer and a surety or between two (2) or more
employers or sureties, the commission shall order payment of compensation to be made
immediately by one or more of such employers or sureties. The commission may order any such
employer or surety to deposit the amount of the award or to give such security thereof as may be
deemed satisfactory. When the issue is finally resolved, an employer or surety held not liable shall
be reimbursed for any such payments by the employer or surety held liable and any deposit or
security so made shall be returned.
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fees.”) Finally, Clark has not favored us with an argument or explanation as to why she is
entitled to attorney fees. Accordingly, we deny her request.
Respondents’ request for attorney fees on appeal fails in only one respect. Although
Respondents have prevailed and advanced argument, the statute upon which they rely, I.C. § 12-
121, does not apply to this appeal because worker’s compensation cases are not civil actions. Id.
at 737, 215 P.3d at 457 (citing Swanson v. Kraft, 116 Idaho 315, 322, 775 P.2d 629, 636 (1989)).
Therefore, we deny the request for attorney fees. As the prevailing parties, Respondents are
entitled to their costs on appeal.
IV. CONCLUSION
We affirm the Commission’s denial of Clark’s worker’s compensation claim and award
costs, but not attorney fees, to Respondents.
Chief Justice BURDICK and Justices EISMANN and W. JONES CONCUR.
J. JONES, J., specially concurring.
I concur in the Court’s opinion because, despite the Referee having made several obvious
mistakes in her factual findings as mentioned by the Court, the Commission corrected those
mistakes in its Order Denying Reconsideration and Rehearing and the corrected decision is
supported by substantial and competent evidence. I write this special concurrence because
several recent cases indicate a failure on the part of the Commission to carefully review some of
the Referee’s proposed findings and recommendations and correct inappropriate findings that are
conspicuous from the record. See Mazzone v. Texas Roadhouse, Inc., 154 Idaho 750, 758−60,
302 P.3d 718, 726−28 (2013); Henry v. Dep’t of Correction, 154 Idaho 143, 149−56, 295 P.3d
328, 534−41 (2013) (J. Jones, J., dissenting). In this case, the Commission merely approved,
confirmed, and adopted the Referee’s proposed findings of fact and conclusions of law as its
own, without apparently giving the document a critical review.
Had the Commission carefully reviewed the Referee’s findings before adopting them, it
would have discovered:
(1) The Referee found that “the Claimant did not file a [first report of injury] until
after [a] surgical recommendation was made,” implying that she did not notify
the Employer of her injury until she learned she needed surgery. The Referee
was correct that the Claimant did not file an FROI because the Employer filed
one, which clearly indicated that it had notice of the injury as of December 15,
2008, four months before the recommendation for surgery was made.
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(2) The Referee found it to be “undisputed that Surety never paid Claimant any
benefits through December 11, 2009.” In fact, the Surety did pay a number of
medical expenses on Claimant’s behalf, as well as for an impairment rating
exam by Dr. Walker that the Surety ordered.
(3) With regard to the testimony of Aaron, a fellow employee who testified on
behalf of Claimant, the Referee found that “Aaron’s testimony is consistent
with an intentional plan to assist Claimant in misleading this tribunal.” The
Commission could have determined this finding to be inappropriate because
the Referee continued, “[t]here is inadequate evidence to establish this as a
fact; however, Aaron’s testimony alone is not credible to corroborate
Claimant’s testimony about what happened on the night of her accident.”
(4) The Referee implied that Claimant’s attorney tried to influence Dr. Blair’s
determination of causation, although the attorney’s letter cited in support of
this finding simply does not support the implication.
The Commission is charged with the responsibility of making findings of fact and conclusions of
law and a final order. Simply rubberstamping a recommended decision that contains obvious
errors or inappropriate conclusions does not fulfill that responsibility.
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