IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 42473-2014

SCOTT M. CHADWICK,

 Claimant-Appellant,

v.

MULTI-STATE ELECTRIC, LLC,

Employer, and IDAHO STATE

INSURANCE FUND, Surety,

 Defendants-Respondents.

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Boise, November 2015 Term

2015 Opinion No. 109

Filed: November 25, 2015

Stephen W. Kenyon, Clerk

Appeal from the Industrial Commission of the State of Idaho.

The order of the Industrial Commission is affirmed.

Scott M. Chadwick argued on behalf of himself.

Neil D. McFeeley; Eberle, Berlin, Kading, Turnbow, & McKlveen, Chartered;

Boise; argued for Respondents.

EISMANN, Justice.

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

did not prove he was entitled to benefits under the Worker’s Compensation Law for an alleged 

back injury. We affirm the order of the Commission.

I.

Factual Background.

On March 18, 2013, Scott M. Chadwick (“Claimant”) filed a complaint with the 

Industrial Commission seeking benefits under the Worker’s Compensation Law from his 

employer, Multi-State Electric, LLC (“Employer”), and its surety, Idaho State Insurance Fund 

(“Surety”). Claimant alleged that he had suffered back injuries as a result of an accident on May 
2

29, 2012, and an accident on July 26, 2012. He went to various medical providers complaining 

of back pain, and on October 8, 2012, he had an MRI of his low back. The MRI showed that he 

had osteoarthritic changes in his lumbar spine and at L4-L5 he had a right paracentral disc 

protrusion with mild reduction of spinal canal caliber and localized mass effect in the region of 

the right L5 nerve root.

The matter was tried to a referee, but the Commission did not adopt the referee’s 

recommendations. After considering the Claimant’s prehearing deposition, the testimony 

presented during the evidentiary hearing before the referee, and the exhibits, the Commission 

issued its findings of fact, conclusions of law, and order. The Commission found that Claimant 

failed to prove that he suffered an injury from a workplace accident in the May event and that he 

failed to prove that the July event occurred. The Commission alternatively found that he had 

failed to provide timely notice to Employer of both claimed accidents, and that he failed to prove 

that Employer was not prejudiced by the failure to give timely notice. Therefore, he was denied 

benefits. Claimant then timely appealed.

II.

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

Claimant’s claim was set for prehearing and hearing before a referee. Claimant contends 

that at the prehearing, he requested that the Defendants be ordered to produce certain discovery 

and that the referee erred in failing to address discovery in violation of Rule 8 of the 

Commission’s Judicial Rules of Practice and Procedure. The record reflects that on May 31, 

2013, the Defendants served responses to Claimant’s request for discovery. On September 20, 

2013, Claimant filed a document requesting a hearing as soon as possible to determine his 

eligibility for benefits. The referee ordered that he submit a request that complied with Rule 8 of 

the Commission’s Judicial Rules of Practice and Procedure. On December 6, 2013, Claimant 

filed a request for calendaring in which he stated that his claim was ready for hearing. His 

request listed the issues to be heard, which did not include any reference to an alleged failure to 

produce documents requested in discovery. On December 11, 2013, the referee issued an order 

setting his claim for a telephonic prehearing on December 20, 2013, and for a hearing on January 

31, 2014. The order listed the issues to be decided at the hearing. On December 24, 2013, after 

the prehearing, the referee issued an order amending the issues to be decided at the hearing.
3

Claimant contends that during the prehearing, he raised the issue of the Defendants’ 

failure to produce all of the documents that he had requested, and the referee responded that it 

was not the appropriate time to address that issue. The record on appeal does not show what was 

discussed at the prehearing; it does not include any order regarding discovery issued by the 

referee; and it does not indicate that any issue regarding discovery was ever presented to or 

decided by the Commission. Because there is no indication that any issue regarding discovery 

was ever presented to the Commission, it is not preserved for appeal. Ball v. Daw Forest 

Products Co., 136 Idaho 155, 160, 30 P.3d 933, 938 (2001).

III.

Did the Commission Abuse Its Discretion in Failing to Hold a Hearing to Determine 

whether the Hearing Should Have Been before the Commission?

In his request for hearing, Claimant stated, “It is necessary for the full Industrial 

Commission [sic] hear this claim.” The subsequent order setting the case for a prehearing and 

hearing was issued by the referee. The referee presided over the evidentiary hearing, but the 

Commission issued its findings of fact, conclusions of law, and order based upon its own review 

of the evidence admitted during the hearing. Claimant contends that the Commission abused its 

discretion in failing to hold a conference with all parties present to consider whether the hearing 

should have been before the Commission, as it was permitted to do pursuant to Rule 8 of its

Judicial Rules of Practice and Procedure.

Rule 8 states that the Commission may hold a conference with all parties to discuss 

“[w]hether the case should be heard by the full Commission because it is a case of first 

impression, presents a situation to overturn or modify precedent, involves novel or complex 

facts, or otherwise merits hearing by the full Commission rather than by a Referee.” Jud. R. of 

Practice and Proc. 8(A)(8). Although in his request for hearing Claimant stated that the full 

Commission should hear his claim, he did not allege any facts that would bring it within the 

scope of Rule 8(A)(8). Therefore, because he failed to present that issue to the Commission in 

accordance with the requirements of Rule 8, he has failed to show that the Commission abused 

its discretion in failing to hold a conference to determine whether the Commission should preside 

over the hearing.
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IV.

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

A. The May 2012 incident. In his complaint, Claimant alleged that he suffered an 

injury as a result of an industrial accident on May 29, 2012. On that day he sought treatment 

from a chiropractor, whose records show that Claimant reported that he suffered a work-related 

injury on May 26, 2012, when he jumped out of a truck and experienced low-back pain that 

radiated through his right side. During Claimant’s deposition, he testified that he did not recall

telling the chiropractor that he hurt himself at work. He stated: “When I say ‘jump,’ I don’t 

mean I’m jumping two feet off a cliff. It is just stepping, jumping out of the van. It is not like a 

hop, jump.” Claimant regularly obtained treatment from the chiropractor until early August

2012, and throughout that treatment the chiropractor diagnosed Claimant as having a “Lumbar 

sprain/strain.” Finally, the chiropractor recommended that he see a physician. 

When he was interviewed by Surety’s investigator, Claimant explained that he thought 

his low-back problems were the result of cumulative insults to his back during the twenty years 

he had worked as an electrician. He testified in his deposition that as work began picking up 

during the spring of 2012, he began to experience low-back pain, which he associated with the 

general demands of his work. He stated that only after reviewing his medical records in 

September 2012 did he remember the May incident.

The Commission found that Claimant had proved that the May incident occurred, but he 

failed to prove that the event caused damage to the physical structure of his body. Alternatively, 

the Commission held that Claimant had failed to give Employer timely notice of the alleged 

accident.

Idaho Code section 72-701 states, “No proceedings under this law shall be maintained 

unless a notice of the accident shall have been given to the employer as soon as practicable but 

not later than sixty (60) days after the happening thereof . . . .” Such notice must state “in 

ordinary language the time, place, nature and cause of the injury.” I.C. § 72-702. It is 

uncontroverted that Claimant did not give Employer written notice within sixty days of the May 

incident.

However, Idaho Code section 72-704 provides that the failure to give timely written 

notice shall not bar a claim for benefits “if it is shown [(a)] that the employer, his agent or 

representative had knowledge of the injury . . . or [(b)] that the employer has not been prejudiced 
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by such delay or want of notice.” Oral notice may provide an employer with knowledge of the 

injury, but such oral notice must occur within the statutory time for giving written notice. Taylor 

v. Soran Rest., Inc., 131 Idaho 525, 527, 960 P.2d 1254, 1256 (1998). The Commission found 

that the Defendants did not have actual knowledge of the May event within the sixty-day period. 

Claimant contends that Employer had the required notice because, within sixty days after the 

May incident, Employer knew that Claimant had back pain for which he was seeking medical 

care. The Commission correctly held that Employer’s “knowledge that Claimant’s back hurt or 

that he received treatment for back pain is insufficient to meet the notice requirement.”

The word injury as that term is used in the Worker’s Compensation Law means “a 

personal injury caused by an accident arising out of and in the course of any employment 

covered by the worker’s compensation law.” I.C. § 72-102(18)(a) (emphasis added). The word 

accident means “an unexpected, undesigned, and unlooked for mishap, or untoward event, 

connected with the industry in which it occurs, and which can be reasonably located as to time 

when and place where it occurred, causing an injury.” I.C. § 72-102(18)(b) (emphasis added). 

The words accident and injury are interrelated definitionally because an accident must cause an 

injury and an injury must be caused by an accident. Konvalinka v. Bonneville Cnty., 140 Idaho 

477, 480, 95 P.3d 628, 631 (2004). “The terms are not synonymous, however.” Id.

 Knowledge of the injury requires notice that the physical condition was caused by an 

accident arising out of and in the course of the claimant’s employment. Thus, a claimant who 

complained of pain was not entitled to benefits where there was no evidence that the employer 

had actual knowledge of a work-related injury within the statutory time for giving notice. 

Taylor, 131 Idaho at 528, 960 P.2d at 1257. Similarly, in Page v. McCain Foods, Inc., 141 Idaho 

342, 109 P.3d 1084 (2005), we held that the oral notice given by a claimant to her employer was 

sufficient where it “provided the supervisor with knowledge of the injury and the source of the 

injury.” Id. at 346, 109 P.3d at 1088 (emphasis added). Likewise, in Murray-Donahue v. 

National Car Rental Licensee Ass’n, 127 Idaho 337, 900 P.2d 1348 (1995), we held that an 

employee’s “vague statement to her supervisor that she was having back problems is insufficient 

to give the required notice of an accident and injury under I.C. § 72-701 and § 72-702, 

particularly in view of her prior history of back problems.” Id. at 339, 900 P.2d at 1350.

Claimant contends that once Employer was aware that Claimant was seeking medical 

care for his back problems, Employer should have initiated an investigation to determine whether 
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such problems were caused by an accident arising out of and in the course of his employment. 

Claimant cites no authority for that assertion, and it is contrary to the requirements of Idaho law 

that the claimant must give the employer timely notice of the accident, I.C § 72-701, and that 

such notice must include the time, place, nature, and cause of the injury, I.C. § 72-702.

The Commission found that within sixty days after the May 2012 incident, Claimant did 

not give Employer the required written notice of the alleged accident and the Defendants did not 

have knowledge of the alleged injury. Therefore, Claimant had the burden of proving that 

Employer was not prejudiced by such delay in giving notice. Jackson v. JST Mfg., 142 Idaho 

836, 837, 136 P.3d 307, 308 (2006); I.C. § 72-704. 

The Commission found that “Claimant has set forth no affirmative proof establishing that 

Multi-State Electric was not prejudiced by either reporting delay.” The Commission stated that 

“there is inadequate evidence from which to determine that Employer would not have obtained 

more accurate and complete material information, had it been able to investigate sooner”; that 

“Claimant’s reporting delay may have hampered Employer’s ability to provide reasonable 

medical treatment . . . [, which] may have resulted in quicker, more complete healing of 

Claimant’s back condition”; and that “Claimant’s ability to work may have been compromised 

by other intervening causes during the delay.” The Commission concluded that “Claimant has 

failed to meet his burden of proving Employer was not prejudiced by his respective delays in 

reporting his industrial accidents.”

“Because the Commission is the fact finder, its conclusions on the credibility and weight 

of the evidence will not be disturbed on appeal unless they are clearly erroneous. This Court 

does not weigh the evidence or consider whether it would have reached a different conclusion 

from the evidence presented.” Eacret v. Clearwater Forest Indus., 136 Idaho 733, 735, 40 P.3d 

91, 93 (2002) (citation omitted). On appeal, Claimant does not present any argument showing 

that the Commission’s finding that he failed to prove lack of prejudice was clearly erroneous. 

Therefore, the Commission did not err in holding that Claimant failed to prove that he was 

entitled to benefits for the May incident.

B. The July incident. Claimant alleged in his complaint that he suffered an industrial 

accident on July 26, 2012, while loading and unloading a trencher. He saw a physician on 

August 6, 2012. The physician’s note dated August 6, 2012, recites that the reason for the 

appointment was “back pain, low right side started last thur [August 2, 2012]”; that Claimant 
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“[h]as had chronic back pain for many years, manages it with ibuprofen and chiropractic”; and 

that he was “[h]aving severe pain in lower right back today, [and] does not recall recent injury or 

strain.” Claimant testified in his deposition that he told the physician “my back was hurting, and 

I don’t know how, specifically, I hurt myself. It is just that it is hurting right now, and I need 

some pain relief.” Claimant returned to the same medical provider on August 17, 2012, and was 

seen by a physician’s assistant. Regarding the history of the present illness, the progress note for

that visit states that Claimant complained of “Old Injury ‘cumulative injury’ ” and that he denied 

an “Acute Injury.” 

On August 13, 2012, Claimant went to another chiropractor. In the history form that he 

completed, Claimant was asked whether the symptoms began suddenly or gradually, and he 

circled the option that the symptoms began gradually. The history form also states that he 

experienced the symptoms “on/off for year.” He later testified that after reviewing his medical 

records in September and October, it came together that he had hurt his back when moving a 

trencher on July 26, 2012.

The Commission found that Claimant failed to prove that the July 2012 event occurred. 

Alternatively, the Commission also found that Claimant failed to give timely notice of the 

alleged accident and failed to prove that such lack of timely notice did not prejudice Employer. 

As a result, the Commission held that Claimant was not entitled to benefits under the Worker’s 

Compensation Law.

“The burden of proof in an industrial accident case is on the claimant.” Johnson v. 

Bennett Lumber Co., 115 Idaho 241, 244, 766 P.2d 711, 714 (1988). “[C]ompensation for 

personal injury or death will be granted only if it be shown that an industrial accident has caused 

the affliction. [Claimant] had the burden of proving both elements, the accident and its causation 

of the injury.” Tipton v. Jansson, 91 Idaho 904, 907, 435 P.2d 244, 247 (1967). “To establish 

that a mishap or event occurred, an injured worker must do more than show an onset of pain 

while at work. Worker’s compensation is not meant or intended to be life or health insurance; it 

is purely accident and occupational disease insurance.” Konvalinka, 140 Idaho at 479, 95 P.3d at 

630. “[A]ggravation of a pre-existing condition caused by repetitive motion does not become an 

accident simply because the claimant can locate the time period when the pre-existing condition 

became symptomatic.” Id. at 480, 95 P.3d at 631.
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The Commission found that in his recorded statement to the Surety, in his prehearing 

deposition, and at other times, “Claimant has clearly expressed the view that he does not, in fact, 

attribute his low-back condition to either or both of the alleged accidents. Rather, Claimant 

believes that his low-back condition is the result of cumulative insults to his low back, i.e. long 

term wear and tear related to his work as an electrician.” The Commission also found:

On September 26, 2012, Claimant advised Surety, during its investigational 

interview, that he could recall no specific injurious event leading to his low back 

pain. Instead, he believed it was the result of a cumulative injury over time, 

during his employment with both Multi-State Electric and prior employers. He 

denied any specific accident, asserting that his pain began around the end of July 

2012 or the beginning of August.

Claimant points to his letter to Surety dated November 6, 2012, in which he wrote: “I 

now know the details of my work related accident and how it happend [sic],” but only after he 

had previously given his statement. He wrote about helping lift the tongue of the trailer holding 

the trencher onto the vehicle hitch and unloading the trencher from the trailer, but did not report 

any sudden onset of pain in doing so. Claimant offered into evidence his account of texts he sent 

to Employer, including one on August 15, 2012, in which he wrote, regarding his medical 

condition, that he “didn’t have accident but work related.” He also submitted copies of various 

e-mails he sent, and in one dated October 17, 2012, he stated that “i [sic] didnt [sic] have an 

accident at work, but its [sic] work related.”

Claimant also points to a medical report dated July 30, 2013, (over one year after the 

alleged incident) which recites:

He states that he began to have back pain and right radicular leg pain in May of

2012. He denies any specific injury, but states that he does wear a tool belt and 

he was doing a significant amount of bending and twisting at that time. He began 

to have severe radicular symptoms in July of 2012, while using a trencher at 

work.

The medical report also stated that there was a dispute as to whether it was a worker’s 

compensation injury. The Commission noted that the physician also stated in the chart note that 

“lifting a trencher could have caused Claimant’s L4-5 disc herniation.” However, the 

Commission stated that the opinion “states a possibility, but it is insufficient to establish, to a 

reasonable medical probability, that lifting a trencher to attach it to a truck hitch on July 26, 2012 

caused this injury.” “A claimant has the burden of proving a probable, not merely a possible, 
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causal connection between the employment and the injury or disease.” Beardsley v. Idaho Forest 

Indus., 127 Idaho 404, 406, 901 P.2d 511, 513 (1995).

The Commission held that Claimant failed to prove that the July incident occurred. It 

found that he “reviewed his medical records and attempted to ascertain what he was doing at or 

about the time the care was rendered, not because he attaches any significance to the incidents, 

but because he perceived a need to identify a particular incident.” “Because the Commission is 

the finder of fact, its conclusions on the credibility and weight of the evidence will not be 

disturbed on appeal unless they are clearly erroneous.” Henry v. Dep’t of Correction, 154 Idaho

143, 145, 295 P.3d 528, 530 (2013). “This Court does not re-weigh the evidence or consider 

whether it would have reached a different conclusion from the evidence presented.” Clark v. 

Shari’s Mgmt. Corp., 155 Idaho 576, 579, 314 P.3d 631, 634 (2013). Claimant has failed to 

show that the Commission’s finding that he failed to prove an injury caused by an industrial 

accident as a result of the alleged July incident is not clearly erroneous.

Claimant contends that the Commission failed to liberally construe the facts in his favor. 

“The terms of Idaho’s workers’ compensation statute are liberally construed in favor of the 

employee. However, conflicting facts need not be construed liberally in favor of the worker.”

Mazzone v. Texas Roadhouse, Inc., 154 Idaho 750, 755, 302 P.3d 718, 723 (2013) (citation 

omitted).

V.

Did the Commission Err in Misreading or Failing to Give Sufficient Weight to Medical 

Records?

Claimant contends that the Commission misinterpreted the patient history he completed 

for his August 13, 2012, chiropractor visit. In response to the question, “When did the symptom 

begin?” Claimant contends that he wrote, “A week ago,” and that the Commission misread the A

as being a 4, thereby erroneously concluding that the symptoms began “well before July 26.” 

Claimant filed a motion for reconsideration raising that issue along with others, and the 

Commission denied the motion, writing: “Having considered Claimant’s motion, and having 

reviewed the record on reconsideration, we find that the substantial and competent evidence in 

the record supports the decision as it stands.” Claimant has not shown how the alleged 

misinterpretation of his handwriting was material.
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One week before the August 13 medical visit, Claimant saw a medical provider for back 

pain, and the chart note states that he had chronic pain for years and did not recall a recent injury 

or strain.1 Four days after the August 13 medical visit, he saw a medical provider for back pain 

that he said started on August 2, 2012, and the chart note states that Claimant had an old, 

cumulative injury that was exacerbated by repetitive work.2 Ten days after the August 13 

medical visit, he again saw a medical provider for low-back pain, and the chart note stated that 

he suffered low-back pain on May 29, 2012, caused by lifting and bending at work.3 Thus, the 

Commission’s conclusion that Claimant’s symptoms began well before July 26, 2012, was 

supported by other medical records.

Claimant argues that “[t]here are no medical records in evidence refuting the work related 

nature of Claimant’s injuries,” and therefore the Commission’s findings are not supported by the 

evidence. It was not enough for Claimant to show that his back pain was work related. He had 

to “prove to a reasonable degree of medical probability that the injury for which benefits are 

claimed is causally related to an accident occurring in the course of employment.” StevensMcAtee v. Potlatch Corp., 145 Idaho 325, 332, 179 P.3d 288, 295 (2008). The injury must have 

been “caused by an accident, which results in violence to the physical structure of the body,” I.C. 

§ 72-102(18)(c), and the accident must have been an “unexpected, undesigned, and unlooked for 

mishap, or untoward event, connected with the industry in which it occurs, and which can be 

 

1

The August 6, 2012, chart note states that the reason for the appointment was: “[B]ack pain, low right side started 

last thur. [August 2, 2012] has been seeing a chiro for low back since June. [P]ain got getting [sic] worse today.” 

The history of present illness states: “46 year old male presents with c/o Low Back Pain Acute low back pain for 

several days. Has had chronic back pain for many years, manages it with ibuprofen and chiropractor. Having

severe pain in lower right back today, does not recall recent injury or strain.” The history also stated that he 

complained of “past symptoms” and “Chronic Pain” and denied “Leg Pain.”

2

The August 17, 2012, chart note states that the reason for the appointment was, “R lower back pain radiating down 

leg.” The history of present illness stated that Claimant complained of “Low Back Pain,” “Old Injury ‘cumulative 

injury,’ ” and “burning/shooting pain right leg,” and that he “Denies: Acute Injury.” It also stated that he complains 

of “injury related to work exacerbated by, onset was at work, repetitive motion, labor.”

3

The August 23, 2012, chart note states that the reason for the appointment was, “DOI 5-29-2012 crawls into 

spaces, lifting, rt leg constant pain, cramping, walks at an angle.” In the history of the present illness, the chart note 

states:

[I]njury occurred at work DOI: 5/29/12 suffererd [sic] injury to the low back while on the 

job. No falls or trauma, but feels that repetitive lifting and bending activities while on the job is 

the cause of his back pain. . . . He reports that he has seen chiropractors from time to time in the 

past, but denies prior serious back injuries of significance.
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reasonably located as to time when and place where it occurred,” I.C. § 72-102(18)(b). In 

Konvalinka, the claimant’s pain was work related in that her work aggravated her pre-existing 

medical condition, but the aggravation of her condition did not constitute an accident. 140 Idaho 

at 479, 95 P.3d at 630. “The law in Idaho clearly states that an employee who suffers from a preexisting condition must establish that his or her disease was aggravated by an accident before 

they are entitled to recover.” McGee v. J.D. Lumber, 135 Idaho 328, 335, 17 P.3d 272, 279 

(2000). In Tupper v. State Farm Insurance, 131 Idaho 724, 963 P.2d 1161 (1998), we upheld the 

denial of benefits because while the claimant’s “doctor opined that the underlying pain and 

exacerbation of pain were work related, the doctor did not provide any medical evidence 

connecting the aggravation of Tupper’s condition to an unexpected, undesigned and unlooked for 

mishap or untoward event, reasonably identifiable as to the time when and the place where it 

occurred.” Id. at 728, 963 P.2d at 1165. Being work related is not synonymous with being 

caused by an accident, which was apparently Claimant’s understanding when he texted and emailed that he did not have an accident but his condition was work related.

Finally, Claimant contends that the Commission erred in failing to realize that his 

treatment for the May incident ended June 26, 2012, and that his treatment for the July incident 

began on July 30, 2012. On August 23, 2012, Claimant sought treatment from a medical 

provider, and the chart note reflects under the heading of “History of Present Illness, Work 

Comp Injury” the statement that “injury occurred at work DOI: 5/29/12 suffererd [sic] injury to 

the low back while on the job.” Thus, on August 23, 2012, Claimant was attributing his back 

pain to the May 29, 2012, incident, not to a subsequent July 2012 incident. Claimant has failed 

to show that the Commission erred in evaluating the evidence.

VI.

Are the Defendants Entitled to an Award of Attorney Fees?

The Defendants seek an award of attorney fees pursuant to Idaho Appellate Rule 11.2, 

which provides that an attorney’s or party’s signature on a document constitutes a certification 

that: (a) “to the best of the signer’s knowledge, information, and belief after reasonable inquiry 

it is well grounded in fact and is warranted by existing law or a good faith argument for the 

extension, modification, or reversal of existing law” and (b) “it is not interposed for any 

improper purpose, such as to harass or to cause unnecessary delay or needless increase in the 

cost of litigation.” I.A.R. 11.2. If either certification is inaccurate, this Court can impose an 
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appropriate sanction, which may include requiring the signer to pay the opposing party a 

reasonable attorney’s fee. Id.

In Giles v. Eagle Farms, Inc., 157 Idaho 650, 339 P.3d 535 (2014), we held that a party 

seeking an award of attorney fees under the rule must identify the document that was signed in 

violation of the rule. Id. at 659, 339 P.3d at 544. In their brief, the Defendants did not identify 

the document signed by Claimant in violation of Rule 11.2. Therefore, we decline to award 

sanctions.

VII.

Conclusion.

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

not attorney fees, on appeal.

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

J. JONES, Chief Justice, specially concurring.

I concur in the Court’s opinion, but write to express continuing concern regarding 

questionable procedural practices employed by the Idaho Industrial Commission. As I pointed 

out in Kelly v. Blue Ribbon Linen Supply, Inc., 2015 WL 6657377, *5 (Nov. 2, 2015), the 

Commission has recently tended to wholly discard the findings of fact, conclusions of law and 

recommendation made by a referee and adopt its own. The Commission did so in this case, 

choosing not to adopt a single finding of fact made by the Referee. Nor did the Commission 

include the Referee’s recommended decision in the record on appeal.4

The problem with this type of practice is that the Court does not have a complete picture 

of the case when it arrives for determination on appeal. When a worker’s compensation case 

comes before this Court, we “will not disturb the Commission’s factual findings if they are 

supported by substantial and competent evidence.” Knowlton v. Wood River Med. Ctr., 151 

Idaho 135, 140, 254 P.3d 36, 41 (2011). This recognizes that the Commission is the trier of fact, 

hears the live testimony of witnesses, and is in a position to make credibility determinations. 

 

4 When asked at oral argument before the Court whether they would agree to augment the Referee’s decision into 

the record, counsel for both parties agreed and the decision was subsequently provided for the Court’s record.
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“Determining the credibility of witnesses and evidence is a matter within the province of the 

Commission.” Id. at 144, 254 P.3d at 45. This Court has divided credibility into two categories—

observational and substantive. Id. “Observational credibility goes to the demeanor of [a witness] 

on the witness stand and it requires that the Commission actually be present for the hearing in 

order to judge it.” Id. Substantive credibility does not require the Commission’s actual presence 

but may be judged from “numerous inaccuracies and conflicting facts.” Id. Thus, if the 

Commission is not present to hear live testimony or if it does not adopt credibility determinations 

made by the referee who conducted the hearing, its conclusions regarding observational 

credibility are unsupported.

This record discloses at least two rather obvious instances where the Commission, which 

was not present to hear testimony, made findings based at least in part on observational 

credibility, casting doubt on their reliability. In her proposed findings, the Referee found that 

“Claimant’s testimony regarding a May 29, 2012, industrial accident lacks credibility and is 

unpersuasive.” This finding was based, in part, on testimony presented at the hearing before the 

Referee. The Commission did not adopt or incorporate this or any other finding made by the 

Referee into its decision. Yet, the Commission made its own finding, based in part on 

Chadwick’s testimony, that an alleged accident may well have occurred—“we believe that Dr. 

Rosenlund’s records, coupled with Claimant’s testimony, do tend to establish that an event did 

occur, whether on May 26th, May 29th or some other date in late May, we cannot determine.” 

Since the Commission neither heard Chadwick’s testimony nor adopted the Referee’s credibility 

determination based on his testimony, it is not entirely clear how the Commission could make a 

credibility determination based on such testimony. It should be noted that this issue was not 

critical to the ultimate outcome of the case.

On another peripheral issue, the Referee found that “Claimant most likely intentionally 

omitted reporting the May 2012 injury to the claims investigator.” Referencing this finding, the 

Referee later stated, “[a]s discussed, above, Claimant was most likely intentionally withholding 

information regarding his May 2012 injury.” The Commission neither adopted the Referee’s first 

finding nor made any comparable finding of its own and, therefore, had no basis for making the 

second one. Nevertheless, the Commission said, “[a]s discussed, above, Claimant was most 

likely intentionally withholding information regarding his May 2012 injury.” Oops! 
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These instances of shoddy fact-finding do not inspire a great deal of confidence in the 

Commission’s fact-finding abilities. If the Commission persists in snatching cases away from its 

referees, it should more carefully review the record and, where observational credibility clearly 

comes into play, either make findings consistent with those made by the referee, who was 

present to hear the testimony, or indicate why the referee’s determination of observational 

credibility is incorrect.

A further problem with the Commission’s practice of disregarding a referee’s proposed 

decision is that the Commission does not indicate why it deems the referee’s decision unworthy 

to the extent that not even one finding of fact is approved or adopted. A party to a worker’s 

compensation dispute, just like a litigant in any other type of administrative proceeding, has a 

right to a reasoned decision and, where the findings of the Commission depart from those of the 

referee, there should be an explanation. Although the Commission has its own procedural rules 

and is not bound by the Idaho Administrative Procedure Act (IDAPA), there is no reason why 

the Commission should not observe accepted practice for IDAPA proceedings where the 

administrative agency is utilizing the services of a hearing officer. In Pearl v. Idaho State Bd. of 

Medicine, 137 Idaho 107, 112, 44 P.3d 1162, 1167 (2002) the Court stated:

Where the agency’s findings disagree with those of the hearing panel, this 

Court will scrutinize the agency’s findings more critically. Woodfield v. Board of 

Professional Discipline, 127 Idaho 738, 746, 905 P.2d 1047, 1053 (Ct. App. 

1995). As the Court of Appeals noted in Woodfield, there is authority for courts to 

impose on the agency an obligation of reasoned decision making that includes a 

duty to explain why the agency differed from the administrative law judge. 

Woodfield, 127 Idaho at 746, 747 n. 3, 905 P.2d at 1053 n.3.

Thus, a worker’s compensation litigant is entitled to a reasoned decision, which includes an 

explanation for the Commission’s departure from findings made by a referee. Here, the 

Commission offered no reasons for its decision to jettison the Referee’s proposed findings.

Even though they arrived there by slightly different routes, both the Commission and the 

Referee reached the same conclusion—that Chadwick’s complaint should be dismissed with 

prejudice. The two errant findings made by the Commission in this case were not critical to the 

outcome. The Court’s opinion does not rely upon the faulty fact-finding and, therefore, I concur 

in the decision.