IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 42237-2014

TERENCE FAIRCHILD,

 Claimant-Appellant,

v.

KENTUCKY FRIED CHICKEN, Employer,

and IDAHO STATE INSURANCE FUND,

Surety,

 Defendants-Respondents.

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Boise, August 2015 Term

2015 Opinion No. 90

Filed: September 25, 2015

Stephen W. Kenyon, Clerk

Appeal from the Industrial Commission of the State of Idaho.

The order of the Industrial Commission is affirmed.

Starr Kelso, Starr Kelso Law Office, Coeur d’Alene, argued for appellant.

H. James Magnuson, Coeur d’Alene, argued for respondents.

EISMANN, Justice.

This is an appeal from the order of the Industrial Commission holding that the claimant 

failed to prove that he suffered a disability in excess of his impairment rating from his industrial 

accident. We affirm the order of the Industrial Commission.

I.

Factual Background.

On November 13, 2004, when he was sixteen years old, Terence Fairchild (Claimant) 

was employed by Kentucky Fried Chicken (Employer) as a cook. While carrying garbage to a 

dumpster, he slipped on ice and fell onto a concrete barrier, striking his knees. The impact 

caused his knees to bleed. He went inside the building, bandaged his knees, and informed his 

supervisor of the accident.
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On December 16, 2004, Claimant sought medical care for his knees. The physician

diagnosed his condition as patellofemoral pain following bilateral patella contusions and 

prescribed knee braces, stretching exercises, Naprosyn, and ice. He saw the physician one week 

later and continued to suffer pain in both knees. The physician prescribed physical therapy, 

which failed to alleviate Claimant’s symptoms. He returned to the physician on January 6, 2005, 

and the physician ordered an MRI of Claimant’s left knee. The MRI did not reveal any 

abnormality. After reviewing the results of the MRI with an orthopedist, the physician continued 

Claimant on physical therapy and anti-inflammatory medication. On February 18, 2005, 

Claimant filed a complaint seeking benefits under the Worker’s Compensation Law, I.C. §§ 72-

101 et seq.

On March 1, 2005, Claimant sought a second opinion from Dr. Sims, an orthopedic 

surgeon. After examining Claimant and reviewing his medical records, the orthopedic surgeon 

suspected a posterior cruciate ligament injury to Claimant’s right knee. Dr. Sims recommended 

an MRI of Claimant’s right knee, but Claimant did not follow up on the recommendation.

On December 13, 2005, Claimant returned to Dr. Sims because of persistent pain. The 

doctor recommended an MRI evaluation of both knees, which was performed on January 3, 

2006. Based upon that evaluation, the doctor diagnosed a partial posterior cruciate ligament 

injury to Claimant’s right knee and recommended a corticosteroid injection. Claimant had the 

injection, but reported to the doctor on March 31, 2006, that he only experienced some 

temporary relief. The doctor discussed further treatment with Claimant, but warned that surgery 

would probably not be beneficial. Claimant returned to the doctor on January 29, 2007, but he

again did not recommend surgery. Claimant obtained a second opinion regarding surgery from 

another physician, who agreed with Dr. Sims’s diagnosis and recommendation against surgery. 

Dr. Sims rated Claimant’s permanent partial impairment at 3% of the whole person.

On September 20, 2007, Claimant underwent an independent medical examination by 

another orthopedic surgeon. That surgeon did not agree with the diagnosis of a posterior cruciate 

ligament injury to Claimant’s right knee. He found that Claimant was medically stable and had 

sustained no permanent partial impairment. The surgeon conducted another independent medical 

examination of Claimant on September 16, 2010, and reported that his opinion remained the 

same.
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On August 31, 2011, Claimant had another physician conduct an examination. That 

physician agreed that Claimant had suffered a partial posterior cruciate ligament injury to his 

right knee and concluded that Claimant was entitled to a permanent partial impairment of 7%.

On April 17, 2012, the Industrial Commission conducted an evidentiary hearing 

regarding Claimant’s worker’s compensation claim and later issued written findings of fact, 

conclusions of law, and an order. It found that Claimant was not a credible witness based upon 

its observation of him during the hearing and the differences between his hearing testimony and 

his prior statements in depositions, interviews, and appointments with medical providers. The 

Commission concluded that it regarded Claimant’s testimony as suspect where it was not 

supported by other evidence in the record. The Commission found that Claimant had suffered a 

right posterior cruciate ligament injury in the accident and that as a result of that injury he had a 

permanent partial impairment rating of 3%. Finally, the Commission found that Claimant had 

failed to prove that he had a disability in excess of his impairment. Claimant filed a motion for 

reconsideration, which the Commission denied. Claimant then appealed.

II.

Standard of Review.

“[O]ur jurisdiction in appeals from decisions of the Industrial Commission in worker’s 

compensation cases is limited to a review of questions of law.” Fife v. Home Depot, Inc., 151 

Idaho 509, 513, 260 P.3d 1180, 1184 (2011); accord Idaho Const. art. V, § 9. We are 

constitutionally required to defer to the Commission’s findings of fact if they are supported by 

substantial and competent evidence. Tarbet v. J.R. Simplot Co., 151 Idaho 755, 758, 264 P.3d 

394, 397 (2011). “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.” Gooby v. Lake Shore Mgmt. Co., 136 Idaho 79, 82, 29 

P.3d 390, 393 (2001). “Substantial and competent evidence is relevant evidence that a 

reasonable mind might accept to support a conclusion.” Lorca–Merono v. Yokes Wash. Foods, 

Inc., 137 Idaho 446, 451, 50 P.3d 461, 466 (2002).

III.
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Is the Commission’s Finding that Claimant Was Not Credible Clearly Erroneous?

“The claimant’s credibility is certainly an issue that can be considered by the 

Commission, particularly where the claimant is basing a claim for permanent disability upon 

complaints of pain.” Jarvis v. Rexburg Nursing Ctr., 136 Idaho 579, 584, 38 P.3d 617, 622 

(2001). The determination of a witness’s credibility can be based upon observations of the 

witness’s demeanor while testifying (observational credibility) and/or upon inaccuracies or 

inconsistencies in the witness’s testimony or facts that conflict with that testimony (substantive 

credibility). Harris v. Indep. Sch. Dist. No. 1, 154 Idaho 917, 925, 303 P.3d 604, 612 (2013).

The Commission found that Claimant was not credible. It stated:

Having reviewed the record and observed Claimant at hearing, the

Commissioners find that Claimant is not a credible witness. His hearing 

testimony differed from his prior statements in depositions, interviews, and 

appointments with medical providers. As mentioned above, he told strikingly 

different stories regarding his separation from Employer. He was also 

inconsistent about his involvement in organized sports and his academic 

achievements. At deposition, he testified that in college, he was a “great” student 

who earned As and Bs; to Mr. Crum, he stated that he was an average student in 

both high school and college, graduating at North Idaho College with a 2.5 GPA. 

Claimant also appears to be prone to exaggeration. He boasted to Dr. Sims that, 

prior to his injury, he ran twenty miles per day. (At hearing, this changed to the 

far more plausible five miles per day.) He insists that he used to be able to leg 

press 1,375 pounds. It is difficult for the Commission to credit such extraordinary 

athletic feats to an adolescent who attended school full-time, worked part-time, 

and was heavily involved in music. Having considered all of the above, the 

Commission regards Claimant’s testimony as suspect where it is not supported by 

other evidence in the record.

(Citations to the agency record omitted.)

The Commission based its finding that Claimant lacked credibility both upon its 

observations of him during the hearing and the substance of his testimony. On appeal, Claimant 

challenges both bases for finding him not credible.

With respect to observational credibility, Claimant contends that the Commission did not 

cite any facts that would support its finding regarding observational credibility. Claimant does 

not cite any authority requiring a trier of fact to set forth the specific observations of a witness’s 

demeanor that the trier of fact took into consideration in judging the witness’s credibility. 

Indeed, we do not require that the trier of fact do so. The observations of a witness’s demeanor 

that may impact the trier of fact’s credibility determination, such as tone of voice, facial gestures, 
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pauses before answering, and body language, would not be recorded in the written transcript of 

the witness’s testimony. Requiring the trier of fact to state such factors would not be verifiable 

on appeal. In addition, the observations of a witness’s demeanor that may affect a credibility 

determination are often subtle and difficult to capture or describe in words and to quantify. 

Therefore, the validity of the Commission’s credibility determination based upon its observations 

of Claimant’s demeanor while testifying is not impacted by the Commission’s failure to describe 

those observations.

The Commission also recited the inconsistencies in Claimant’s testimony that impacted 

its determination that Claimant was not credible. Claimant filed a motion for reconsideration 

seeking to explain away those inconsistencies, but the Commission was not convinced. In its 

order denying the motion for reconsideration, the Commission pointed out Claimant’s 

inconsistent testimony regarding why he left his job with Employer. 

On appeal, Claimant contends that the reason he left that employment was not relevant to 

the issues in this case. It was, however, clearly relevant to the determination of Claimant’s 

credibility. The Commission pointed out that Claimant’s accident occurred on November 13, 

2004; that in his deposition taken on April 19, 2005, Claimant testified that he worked two 

additional shifts following the accident; and that his deposition testimony showed that “[d]uring 

his third scheduled shift, Claimant did not go to work . . . [and instead] decided to play at a 

concert, but evidently did not notify Employer of this decision.” Claimant testified that 

thereafter Employer did not schedule him and demanded that he return his uniform and any other 

items of Employer’s property. Thus, his deposition testimony showed that he was terminated for 

skipping work without notifying his employer. During the evidentiary hearing on April 17, 

2012, Claimant testified that Employer “would not work with my limitations”; that he asked if he 

could “just stay on register all day or do some light cleaning up for them”; that Employer 

determined “that there was nothing that I could do in the company that would benefit them”; and 

that his “employment ended after they found no use for me.” 

“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.” Harris, 154 Idaho at 925, 303 P.3d at 612. Based upon the two versions of

why Claimant’s employment was terminated with Employer, the Commission could reasonably 

conclude that Claimant was willing to lie about the reason for the termination of his employment 
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to make it appear that the accident caused an injury that prevented him from continuing with that 

type of work. The Commission’s credibility determination based upon inconsistencies in 

Claimant’s testimony was not clearly erroneous.

III.

Was the Commission’s Determination that Claimant Had Failed to Prove that He Had a 

Disability in Excess of His Impairment Clearly Erroneous?

“The primary purpose of an award of partial permanent disability is to compensate the 

claimant for loss of earning capacity or his reduced ability to engage in gainful activity.” 

Graybill v. Swift & Co., 115 Idaho 293, 297, 766 P.2d 763, 767 (1988). “A disability rating is 

based upon both the medical factor of permanent impairment and pertinent nonmedical factors.” 

Clark v. Truss, 142 Idaho 404, 407, 128 P.3d 941, 944 (2006). A permanent disability “results 

when the actual or presumed ability to engage in gainful activity is reduced or absent because of 

permanent impairment and no fundamental or marked change in the future can be reasonably 

expected.” I.C. § 72-423. “[T]he correct test is whether, after consideration of the pertinent nonmedical factors outlined in Idaho Code § 72-430, the claimant’s ‘probable future ability to 

engage in gainful activity’ is accurately reflected by the impairment rating.” McCabe v. Jo Ann 

Stores, Inc., 145 Idaho 91, 97, 175 P.3d 780, 786 (2007). “The burden of proof is upon the 

claimant to prove disability in excess of his impairment rating, although expert testimony on this 

issue need not be presented.” Seese v. Ideal of Idaho, Inc., 110 Idaho 32, 34, 714 P.2d 1, 3 

(1985). “A determination by the Commission as to the degree of permanent disability resulting 

from an industrial injury is a factual question.” Gooby, 136 Idaho at 88, 29 P.3d at 399.

Claimant presented the testimony of Daniel W. Brownell, who testified that in his 

opinion Claimant had a 28% disability, inclusive of impairment. The Defendants presented the 

testimony of Douglas M. Crum, who testified that in his opinion Claimant did not sustain any 

disability in excess of his impairment. The Commission found Mr. Crum’s testimony more 

credible than Mr. Brownell’s. Claimant filed a motion for reconsideration, arguing that Mr. 

Crum’s opinions were flawed and that Mr. Brownell’s opinions were sounder. The Commission 

denied the motion.

The Commission found most persuasive the testimony of the Claimant’s treating 

physician, Dr. Sims. It stated: “Dr. Sims was the only one who treated Claimant over a period 
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of years. He did not assign any limitations or restrictions.” With respect to disability in excess 

of impairment, the Commission found persuasive the testimony of Mr. Crum, who stated that 

“given the fact that there are no restrictions, it’s hard to conclude that the 2004 accident has 

resulted in any reduction in his ability to engage in gainful activity.” In denying Claimant’s 

motion for reconsideration, the Commission stated: “In considering these conflicting opinions 

and weighing their credibility, the Commission was persuaded by the diagnosis and opinion of 

Dr. Sims, who was most familiar with Claimant’s condition. There are no limitations or 

restrictions associated with the injury as diagnosed by Dr. Sims.” Claimant argues that, by 

definition, if he had a 3% impairment as found by the Commission, then he must have physical 

limitations and restrictions.

The evaluation of a claimant’s permanent impairment rating is “a medical appraisal of the 

nature and extent of the injury or disease as it affects an injured employee’s personal efficiency 

in the activities of daily living, such as self-care, communication, normal living postures, 

ambulation, elevation, traveling, and nonspecialized activities of bodily members.” I.C. § 72-

424. The limitations or restrictions to which the Commission referred were limitations or 

restrictions as to the type of work (e.g., light duty work or work that does not require bending, 

twisting, sitting, or lifting more than a specified weight) that Claimant could do in order to 

prevent re-injury or worsening Claimant’s condition. Those restrictions can limit the claimant’s 

opportunities for gainful employment. However, the existence of an impairment rating based 

upon an evaluation of how a compensable injury impacted Claimant’s personal efficiency in the 

activities of daily living does not necessarily mean that the claimant had restrictions or 

limitations as to the type of employment activities in which the claimant could engage. Whether

an injury resulting in a permanent impairment also requires restrictions or limitations depends 

upon the facts of the case. For example, in Rivas v. K.C. Logging, 134 Idaho 603, 7 P.3d 212

(2000), we upheld a determination that the claimant had a 1% impairment but no restrictions 

regarding his ability to continue working at his regular occupations. Id. at 608-09, 7 P.3d at 217-

18. Even the existence of restrictions or limitations would not require a finding of a disability in 

excess of impairment. McCabe, 145 Idaho at 96, 175 P.3d at 785 (post-accident medical 

restrictions of only occasional bending, twisting, sitting, and overhead activities and no lifting 

anything over 25 pounds did not, as a matter of law, require a finding of a disability in excess of 

the claimant’s 7% impairment rating).
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“[A] permanent disability rating need not be greater than the impairment rating if, after 

consideration of the non-medical factors in I.C. § 72-425, the claimant’s ‘probable future ability 

to engage in gainful activity’ is accurately reflected by the impairment rating.” Graybill, 115 

Idaho at 294, 766 P.2d at 764. Claimant has failed to show that the Commission erred in finding 

that Claimant failed to prove that he had a disability in excess of his impairment rating.

IV.

Should Claimant’s Counsel Be Required to Pay Attorney Fees Pursuant to Idaho Appellate 

Rule 11.2?

The Respondents listed as an issue on appeal whether they are entitled to an award of 

attorney fees against Claimant’s attorney pursuant to Idaho Appellate Rule 11.2. Under that rule,

attorney fees are awardable against an attorney who signs a brief containing arguments that are 

not well grounded in fact, warranted by existing law, or made in good faith or who signs a notice 

of appeal or brief for an improper purpose such as to harass, to cause unnecessary delay, or 

needlessly increase the cost of litigation. Sims v. Jacobson, 157 Idaho 980, 986-87, 342 P.3d 

907, 913-14 (2015); Flying A Ranch, Inc. v. Bd. of Cnty. Comm’rs for Fremont Cnty., 156 Idaho 

449, 452-54, 328 P.3d 429, 432-34 (2014). However, the Respondents did not include in their 

brief any argument regarding their request for an award of attorney fees. “[W]here a party 

requests attorney fees on appeal but does not address the issue in the argument section of the 

party’s brief, we will not address the issue because the party has failed to comply with Idaho 

Appellate Rule 35.” Morrison v. Nw. Nazarene Univ., 152 Idaho 660, 666-67, 273 P.3d 1253, 

1259-60 (2012). Therefore, we will not consider the issue.

V.

Conclusion.

We affirm the order of the Industrial Commission, and we award Respondents costs on 

appeal.

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