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IN THE SUPREME COURT OF THE STATE OF IDAHO 

Docket No. 44552

CHARLES LEROY HARTGRAVE,

 Claimant-Appellant,

v.

CITY OF TWIN FALLS, Employer, and 

STATE INSURANCE FUND, Surety,

 Defendants-Respondents.

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Boise, January 2018 Term

2018 Opinion No. 18

Filed: March 5, 2018

Karel A. Lehrman, Clerk

Appeal from the Industrial Commission. 

Appeal from Industrial Commission ruling, affirmed.

L. Clyel Berry, Chartered, Twin Falls, for appellant. L. Clyel Berry argued.

Augustine Law Offices, PLLC, Boise, for respondents. Paul J. Augustine argued.

_________________________________

BURDICK, Chief Justice.

Charles Leroy Hartgrave brings this appeal from the Idaho Industrial Commission (the 

Commission). Hartgrave sustained injuries to his left knee while working for the City of Twin 

Falls (the City) on February 3, 2009, and August 23, 2012. Although Hartgrave’s left knee 

injuries and corresponding treatments were covered by Idaho’s Workers Compensation Act, 

Hartgrave contends the left knee injuries aggravated preexisting degenerative joint disease in his 

right knee and ultimately required a total knee arthroplasty (TKA) in his right knee. The 

Commission rejected Hartgrave’s position and ruled that Hartgrave’s right TKA was not 

compensable. Hartgrave timely appeals that ruling and we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Hartgrave has worked for the City’s Street Department since 1978. While working on 

February 3, 2009, Hartgrave injured his left knee. As Hartgrave explained the injury, 
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[he] was doing a pavement survey with a couple of other guys. [He] was 

outside of the truck. [He] was running a measuring wheel down the road, and [he] 

stepped on a piece of uneven blacktop there. [He] didn’t see it, and [he] stepped 

on it. As soon as [he] did, [he] felt his knee pop. 

Hartgrave initially “didn’t think too much about it[,]” but as the day progressed, “it got much 

worse.” As a result, Hartgrave visited Dr. Douglas Stagg, M.D., on February 17, 2009. Dr. Stagg 

noted that Hartgrave “ambulate[d] favoring the left knee enough that it affect[ed] his gait with a 

slight limp[,]” cleared Hartgrave for normal work, and prescribed a brace, “lot[s] of ice,” and 

“Motrin 600 mg t.i.d.” Due to persistent pain in his left knee, Hartgrave visited Dr. Stagg twice 

more before he was referred to Dr. Tyler McKee, D.O., for an orthopedic evaluation. 

Dr. McKee performed that evaluation on March 13, 2009, diagnosed a meniscal tear in 

Hartgrave’s left knee, and recommended an “arthroscopy of the left knee with partial lateral 

meniscectomy.” Although that visit arose from the injury to Hartgrave’s left knee, Dr. McKee

evaluated Hartgrave’s right knee and noted no tenderness or instability and full strength and 

range of movement in the right knee. However, after reviewing bilateral x-rays, Dr. McKee 

discovered that Hartgrave suffered from “pretty severe” osteoarthritis in his right knee, and, in 

fact, Hartgrave was actually “bone on bone” in his right knee at that time. As such, during the 

March 13, 2009, visit, Dr. McKee inquired whether Hartgrave was interested in a right TKA at 

that time, but Hartgrave responded that he had no pain in his right knee and did not want to 

pursue the procedure. Regarding his left knee, Hartgrave obtained worker’s compensation 

approval from the Idaho State Insurance Fund (ISIF) and underwent Dr. McKee’s recommended 

left knee surgery on May 6, 2009. He returned to work sometime during June or July 2009. 

Hartgrave, however, continued suffering from persistent pain in his left knee and hip. He 

visited Dr. James Retmier, M.D., on August 30, 2010, for a second opinion of his left knee. Dr. 

Retmier surmised that Hartgrave had “failed all forms of conservative care and is a candidate for 

[(a left TKA)]” and, accordingly, further noted that “we will ask [worker’s compensation] for 

authorization and then plan on proceeding.” 

In response to Dr. Retmier’s evaluation, ISIF enlisted Dr. Brian Tallerico, D.O., to 

perform an independent medical examination (IME), which occurred on December 16, 2010.

After evaluating Hartgrave’s left knee, Dr. Tallerico concluded “[t]here is absolutely no need for 

a [(left TKA)] in this individual, and it certainly is not related to the industrial injury of February 

3, 2009.” Although that visit arose from the injury to Hartgrave’s left knee, Dr. Tallerico noted 
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that Hartgrave expressed having “problems with the right knee in the past (open meniscectomy 

in 1971 with ongoing swelling and symptoms)[.]” Dr. Tallerico further noted that, 

“[i]nterestingly enough, [Hartgrave’s] right knee is in much worse shape than his left knee with 

significant lateral compartment collapse and loss of cartilage interval.” Dr. Tallerico ultimately 

concluded that the “[p]reexisting history of bilateral knee degenerative joint disease [was] 

unrelated to the [February 3, 2009, accident] on a more-probable-than-not basis and not 

aggravated by it.” Thereafter, ISIF denied Dr. Retmier’s recommendation for a left TKA, and 

Hartgrave returned to work. 

While working on August 23, 2012, Hartgrave sustained another injury to his left knee. 

As Hartgrave explained, “[he] was running a water truck. [He] went to get out of the truck. [He] 

was holding onto a bar here, and [his] foot slipped off the bottom step of the truck. When [he] hit 

the ground, [he] twisted around; and it hurt the [left] knee.” Hartgrave visited Dr. McKee for 

treatment. Dr. McKee conducted x-rays that revealed “degenerative joint disease of the lateral 

compartment of both knees. It is worse on the right than the left.” Dr. McKee ultimately 

recommended a left TKA. After obtaining worker’s compensation approval, Hartgrave 

underwent the procedure on March 13, 2013. 

Hartgrave spent approximately six weeks on crutches after the left TKA. He attended 

several follow-up visits with Dr. McKee, but he never complained of pain in his right knee and 

instead only complained of pain in his left knee and hip. On August 9, 2013, Dr. McKee 

concluded Hartgrave had reached maximum medical improvement and authorized him to return 

to work with restrictions of no squatting, kneeling, or lifting weight in excess of fifty pounds.

On November 8, 2013, Hartgrave visited Dr. McKee and reported pain in his right knee.

Dr. McKee diagnosed “[s]evere degenerative joint disease of the right knee with a lesser degree 

on the left.” Even though Hartgrave had never before complained of right knee pain to Dr. 

McKee, and even though Dr. McKee had never noticed Hartgrave limping with regard to the 

right leg, Dr. McKee and Hartgrave discussed treatment options and decided to proceed with a 

right TKA. That procedure was performed on November 25, 2013. Hartgrave initially did not 

seek worker’s compensation approval for the right TKA and instead billed his health insurer. 

Hartgrave later testified he did not know why he did not seek worker’s compensation approval 

for the right TKA. 
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Thereafter, on January 23, 2014, Hartgrave filed two worker’s compensation complaints. 

In the first, Hartgrave cited the February 3, 2009, accident and sought relief of permanent partial 

impairment, disability benefits, medical benefits for the “injury to right knee, culminating in 

right TKA,” and attorney fees. In the second, Hartgrave cited the August 23, 2012, accident and 

sought relief identical to that requested in his first complaint. The City and ISIF (collectively, 

Respondents) answered both complaints and denied liability, and the Commission consolidated 

both cases. 

The parties eventually entered into a settlement agreement that resolved most issues, but 

the settlement agreement expressly left unresolved whether Hartgrave’s right TKA is 

compensable. When that issue was submitted to the Commission, the Referee’s recommendation

reasoned that an “accident” did not aggravate the preexisting degenerative joint disease in 

Hartgrave’s right knee and concluded that Hartgrave’s right TKA is not compensable. The 

Commission agreed with the Referee’s ultimate conclusion that Hartgrave’s right TKA is not 

compensable, but employed different reasoning. As the Commission reasoned, Hartgrave’s right 

TKA “was necessitated by the natural progression of his arthritis and unrelated to the industrial 

injuries.” Hartgrave timely appeals that ruling.

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II. ISSUES ON APPEAL

1. Is the Commission’s ruling that Hartgrave’s right TKA is not compensable based on 

substantial, competent evidence?

2. Should attorney fees be awarded on appeal?

III. STANDARD OF REVIEW

In an appeal from the Commission,

this Court reviews “whether the Commission’s findings of fact are supported by 

substantial and competent evidence,” but freely reviews its legal conclusions. 

Shubert v. Macy’s W., Inc., 158 Idaho 92, 98, 343 P.3d 1099, 1105 (2015), 

abrogated on other grounds by Chavez v. Stokes, 158 Idaho 793, 353 P.3d 414 

(2015). “Substantial and competent evidence is relevant evidence which a 

 1 As an aside, we observe a few procedural aspects unique to this case. This matter was submitted to the 

Commission on a stipulated record in lieu of a hearing. The Commission entered its initial order on August 30, 

2016. Hartgrave filed a timely notice of appeal, but it later became clear that the Commission had failed to consider 

all of the stipulated exhibits. Thus, this Court stayed the appeal and issued a temporary remand to the Commission 

with instructions to review the omitted exhibits and take whatever action appropriate. Hartgrave moved the 

Commission to reopen the record under Idaho Code section 72-719(3) to correct manifest injustice, contending new 

evidence would show that he will likely need yet another right TKA. The Commission denied that motion, ruling 

that it would review the complete record, including the omitted exhibits, and issue a new decision, but not accept 

new evidence, conduct a hearing, or allow additional briefing. Hartgrave has not appealed the Commission’s denial 

of this motion, but confines his appeal to the Commission’s ruling as to his right TKA. 
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reasonable mind might accept to support a conclusion.” Id. “We will not disturb 

the Commission’s findings on the weight and credibility of the evidence unless 

those conclusions are clearly erroneous,” id. nor will this Court “re-weigh the 

evidence or consider whether we would have drawn a different conclusion from 

the evidence presented.” Watson v. Joslin Millwork, Inc., 149 Idaho 850, 854, 243 

P.3d 666, 670 (2010). All facts and inferences are viewed in the “light most 

favorable to the party who prevailed before the Commission.” Hamilton v. Alpha 

Servs., 158 Idaho 683, 688, 351 P.3d 611, 616 (2015). However, workers’

compensation laws are liberally construed “in favor of the employee, in order to 

serve the humane purpose” behind the law. Id.

Estate of Aikele v. City of Blackfoot, 160 Idaho 903, 908, 382 P.3d 352, 357 (2016).

IV. ANALYSIS

A. The Commission’s ruling that Hartgrave’s right TKA is not compensable is 

supported by substantial, competent evidence.

Hartgrave’s appeal challenges the Commission’s ruling that he failed to prove his right 

TKA is compensable, which rests on causation.2 Hartgrave, as claimant, carried the burden of 

proving causation. Serrano v. Four Seasons Framing, 157 Idaho 309, 317, 336 P.3d 242, 250 

(2014) (quoting Duncan v. Navajo Trucking, 134 Idaho 202, 203, 998 P.2d 1115, 1116 (2000)). 

“The proof required is ‘a reasonable degree of medical probability’ that the claimant’s ‘injury 

was caused by an industrial accident.’ ” Id. (quoting Anderson v. Harper’s Inc., 143 Idaho 193, 

196, 141 P.3d 1062, 1065 (2006)). Put another way, the “claimant has the burden of proving a 

probable, not merely a possible, causal connection between the employment and the injury or 

disease.” 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)). “In 

this regard, ‘probable’ is defined as ‘having more evidence for than against.’ ” Aikele, 160 Idaho 

at 911, 382 P.3d at 360 (quoting Jensen v. City of Pocatello, 135 Idaho 406, 412, 18 P.3d 211, 

217 (2000)). “The Commission may not decide causation without opinion evidence from a 

 2 In his opening brief, Hartgrave recites the following as issues presented on appeal:

Whether [the Commission’s] Findings of Fact, Conclusion of Law, and Order dated/filed 

June 23, 2017, [1] was erroneous as a matter of law; [2] [was] supported by substantial and 

competent evidence of record; [3] set forth specific findings necessary and required for 

meaningful appellate review; and/or, [4] . . . failed to make proper application of law to the 

evidence of record, in reaching the same?

Nonetheless, Hartgrave offers argument and authority on only the second basis—that is, whether the Commission’s 

order is supported by substantial, competent evidence. Cf. Liponis v. Bach, 149 Idaho 372, 374, 234 P.3d 696, 698 

(2010) (explaining that argument is waived if “not supported by any cogent argument or authority” in the opening 

brief). We proceed accordingly.
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medical expert.” Serrano, 157 Idaho at 317, 336 P.3d at 250 (quoting Anderson, 143 Idaho at

196, 141 P.3d at 1065).

Hartgrave does not contend his right knee was previously uninjured until the accidents 

occurring on February 3, 2009, and August 23, 2012, but rather acknowledges that degenerative 

joint disease in his right knee predated both accidents. Hartgrave broke his right leg when he was 

in the first grade and injured his right knee during high school. As a result, in 1971, Hartgrave 

underwent an open meniscectomy. After that surgery, his right knee was “in pretty good shape,” 

but Hartgrave “would have to take an aspirin once in a while.” However, Hartgrave argues either

the February 3, 2009, or the August 23, 2012, accident, or both, aggravated the preexisting 

condition in his right knee.

We have previously recognized that, consistent with the humane principles underlying 

Idaho’s Worker’s Compensation Act, “an employer takes an employee as he finds him.” Wynn v. 

J.R. Simplot Co., 105 Idaho 102, 104, 666 P.2d 629, 631 (1983). That is to say, “our 

compensation law does not limit awards to workmen who, prior to injury, were in sound 

condition and perfect health.” Id. Rather, “this Court has long held that an employee may be 

compensated for the aggravation or acceleration of his or her preexisting condition” so long as 

the “aggravation or acceleration” results from an “accident.”3 Nelson v. Ponsness-Warren Idgas 

Enters., 126 Idaho 129, 132, 879 P.2d 592, 595 (1994) (citing Wynn, 105 Idaho at 105, 666 P.2d 

at 631; Woodbury v. Arata Fruit Co., 64 Idaho 227, 239, 130 P.2d 870, 875 (1942)); accord 

Henry v. Dep’t of Corr., 154 Idaho 143, 145, 295 P.3d 528, 530 (2013). In fact, this Court has 

recognized that, in addition to the immediate injury sustained in an accident, a new and distinct 

injury that later emerges may be compensable if its cause can be traced to the “accident.” See, 

e.g., Anderson, 143 Idaho at 195–97, 141 P.3d at 1064–66 (concluding tremors in claimant’s 

hands and arms that emerged after accident in which claimant sustained a neck injury could be 

traced to the accident and were compensable); Duncan, 134 Idaho at 203–04, 998 P.2d at 1116–

17 (concluding claimant’s back injury that emerged after accident in which claimant sustained a 

knee injury could be traced to the accident and was compensable). 

 3 “ ‘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). The parties do not dispute that Hartgrave suffered an “accident” under 

section 72-102(18)(b). While the Referee concluded Hartgrave had not suffered an “accident” under section 72-

102(18)(b), the Commission rejected that conclusion. No argument is made on the issue now. We therefore proceed 

on the assumption Hartgrave suffered an “accident” under section 72-102(18)(b).
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In light of these principles, the Commission summarized Hartgrave’s position as that 

Hartgrave’s “preexisting right knee condition was aggravated by the industrial accident by this 

path: [Hartgrave] suffered a left knee injury which required surgery. During his convalescence, 

[Hartgrave] was required to use crutches and this use of crutches caused a gait alteration which 

aggravated his right knee condition.”4 The Commission ultimately concluded the evidence did 

not support Hartgrave’s argument. Because the Commission is the finder of fact, this Court will 

not disturb the Commission’s determinations on the weight and credibility of evidence unless 

these determinations are clearly erroneous. E.g., Aikele, 160 Idaho at 908, 382 P.3d at 357.

The Commission, presented with the opinions of Hartgrave’s and Respondents’ medical 

experts, gave greater weight to Respondents’ medical expert, Dr. Tallerico. Dr. Tallerico opined

that neither the February 3, 2009, nor the August 23, 2012, accident aggravated the preexisting 

degenerative joint disease in Hartgrave’s right knee. Dr. Tallerico conducted four IMEs of 

Hartgrave, the first of which occurred on December 16, 2010. In that IME, Dr. Tallerico noted 

that Hartgrave expressed having “problems with the right knee in the past (open meniscectomy 

in 1971 with ongoing swelling and symptoms)[.]” Dr. Tallerico’s report states that, 

“[i]nterestingly enough, [Hartgrave’s] right knee is in much worse shape than his left knee with 

significant lateral compartment collapse and loss of cartilage interval. Both patellofemoral joints 

are involved in a Merchant’s view showing significant osteoarthritic changes. The medial 

compartments appear grossly spared.” Dr. Tallerico concluded that the “[p]reexisting history of 

bilateral knee degenerative joint disease [was] unrelated to the [2009 accident] on a moreprobable-than-not basis and not aggravated by it.” 

Dr. Tallerico performed three other IMEs. In the second IME, Dr. Tallerico again wrote

that the “[p]re-existing history of bilateral knee degenerative joint disease . . . [was] unrelated to 

the [2009 accident] on a more-probable-than-not basis and not aggravated by it.” In the third 

IME, Dr. Tallerico did not articulate a similar conclusion, but noted “a trace amount of swelling” 

in the right knee.5 In the fourth IME, Dr. Tallerico again noted that the “[p]reexisting history of 

right knee degenerative joint disease . . . [was] unrelated to this industrial claim.” 

 4 The Commission concluded that Hartgrave would be entitled to compensation if he proved this path. We express

no view as to that conclusion.

5 In the third IME, Dr. Tallerico noted that the 

[p]reexisting history of bilateral knee degenerative joint disease [was] unrelated to the industrial 

injury, and this time temporarily aggravated by the industrial injury on a more probable-than-not 

basis. It is my opinion that when he fell out of his truck approximately two feet and landed directly 
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Dr. Tallerico thus testified as follows:

Q. Essentially, the argument is that the increase in [Hartgrave’s] right knee 

symptoms was caused by the problems he had with his left knee which led him to 

have his right total knee arthroplasty, meaning that those industrial injuries and 

the sequela of those industrial injuries accelerated the need for the total knee 

arthroplasty.

What is your opinion about that?

A. Again, it is my opinion that either injury or surgery to the left knee did 

not hasten or accelerate the need for a right total knee arthroplasty. [Hartgrave] 

was destined to have a total knee arthroplasty on the right at some point in time.

Hartgrave takes issue with the weight given to Dr. Tallerico’s opinions. Hartgrave notes 

that Dr. McKee was his primary physician, whereas Dr. Tallerico was specially enlisted by 

Respondents and performed only four IMEs. However, “[t]he Commission is not bound to accept 

the opinion of the treating physician over that of a physician who merely examined the claimant 

for the pending litigation.” Lorca-Merono v. Yokes Wash. Foods, Inc., 137 Idaho 446, 451, 50 

P.3d 461, 466 (2002); Gooby v. Lake Shore Mgmt. Co., 136 Idaho 79, 86, 29 P.3d 390, 397 

(2001). Hartgrave further notes that Dr. Tallerico’s IMEs were specifically directed at 

Hartgrave’s left knee, not his right. The Commission acknowledged this point, reasoning “Dr. 

Tallerico reiterated that the purpose of his various visits with [Hartgrave] focused on his left 

knee problems; not his right knee, although he would examine his right knee to some extent on 

each of those visits.” Dr. Tallerico similarly testified that “because it is an orthopaedic 

evaluation, I believe that every time I saw him I did examine the right knee in conjunction with 

the left knee.” He further testified that, “if it’s a lower extremity exam, like Mr. Hartgrave’s, I 

will have him put a pair of shorts on so I can look at both knees and perform my physical 

evaluation.” Dr. Tallerico never opined that he was unable to render an opinion on Hartgrave’s 

right knee due to an inadequate basis for the opinion. Nor did he express needing more 

information to render an accurate or a complete opinion. Thus, the Commission was free to 

ascribe greater weight to Dr. Tallerico’s opinions, despite that Dr. McKee was Hartgrave’s 

primary physician. See, e.g., Lorca-Merono, 137 Idaho at 451, 50 P.3d at 466; Gooby, 136 Idaho 

at 86, 29 P.3d at 397.

 on the left leg, he had an impact injury to his femoral condyle [that] necessitated the microfracture 

chroplasty. This would at least aggravate his underlying degenerative changes in the knee. This is 

an entirely different type of mechanism than [was] related to his last claim. 

The statement that “this time [the degenerative joint disease was] temporarily aggravated by the industrial injury on 

a more probable-than-not basis,” concerns Hartgrave’s left knee, as clarified in Dr. Tallerico’s deposition.
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In deciding to place greater weight on Dr. Tallerico’s opinions, the Commission observed 

that Dr. McKee had rendered inconsistent opinions. In one opinion, rendered on July 29, 2014, 

Dr. McKee responded to an inquiry from Hartgrave’s counsel as follows:

You ask whether it is my opinion that Mr[.] Hartgrave’s right total knee 

arthroplasty was accelerated or advanced in time by reason of the either direct or 

indirect consequence of his industrial left knee injuries of 2009 and/or 2012? 

Mr[.] Hartgrave had severe arthritis in his right knee that was noted on his initial 

visit in 2009. He would . . . have required a total knee arthroplasty regardless of 

his industrial injuries.

Thereafter, on August 28, 2015, Dr. McKee responded to an inquiry from Hartgrave’s counsel as 

follows:

I recall meeting Mr. Hartgrave in 2009 and commenting on his severe 

right-sided arthritis and that he told me at that point that he did not have pain and 

did not want to proceed with total knee arthroplasty at that time, because of that 

reason. I do not recall addressing his right knee pain at all, until late 2013. At that 

point his knee was significantly more painful and he elected to proceed with right 

total knee arthroplasty. What I am trying to say is that I feel his industrial injuries 

caused an aggravation to his right knee pain. Had there not been worsening 

symptoms we would not have proceeded with total knee arthroplasty. Therefore, 

yes, I believe that his industrial injuries moved up his need for total knee 

arthroplasty on the right.

The Commission found it problematic that “Dr. McKee initially opined in July 2014 that 

Claimant would need a total knee replacement in the right knee regardless of his left knee 

injuries.” 

Hartgrave counters that Dr. McKee’s opinions are not in fact inconsistent. Hartgrave 

explains that “the July 29, 2014, report did not respond to the issue whereas the August 28, 2015, 

report provided specific response to the specific inquiry.” Hartgrave’s assertion is unpersuasive. 

The question to which Dr. McKee responded on July 29, 2014, directly inquired:

Whether it is your opinion that Mr. Hartgrave’s right TKA was accelerated 

or advanced in time by reason of the either direct or indirect consequence of his 

industrial left knee injuries of 2009 and/or 2012? Put another way, would you 

have anticipated that Mr. Hartgrave’s right TKA would have been required at the 

point in time it was performed had the 2009 and 2012 industrial left knee injuries 

not have occurred?

As stated, Dr. McKee responded:

You ask whether it is my opinion that Mr[.] Hartgrave’s right total knee 

arthroplasty was accelerated or advanced in time by reason of the either direct or 

indirect consequence of his industrial left knee injuries of 2009 and/or 2012? 

Mr[.] Hartgrave had severe arthritis in his right knee that was noted on his initial 
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visit in 2009. He would . . . have required a total knee arthroplasty regardless of 

his industrial injuries.

That Dr. McKee’s response is now unsatisfactory to Hartgrave does not mean that his response 

was also incomplete, as Hartgrave now contends.

In fact, on August 11, 2014, Hartgrave’s counsel responded to Dr. McKee:

You interpreted that July 1 correspondence as merely requesting your opinion 

whether Mr. Hartgrave’s right TKA was accelerated or advanced in time as a 

consequence of his industrial left knee injuries of 2009 and/or 2012. Thank you 

for your courtesy in that regard. However, I am concerned that the length of my 

July 1 correspondence may have confused you. For that, I apologize. That 

correspondence also made three specific inquiries regarding Mr. Hartgrave’s 

industrial left knee presentment within three numbered paragraphs upon page 3. 

For your ease of reference, I am enclosing a copy of page 3 from that July 1, 

2014, correspondence to you. Hopefully you will respond to those three inquiries. 

Notably, Hartgrave’s counsel did not object to Dr. McKee’s July 29, 2014, opinion regarding 

Hartgrave’s right TKA, but rather thanked Dr. McKee for his opinion in that regard and 

requested that Dr. McKee respond to certain inquiries concerning Hartgrave’s left knee. When 

Dr. McKee responded on September 23, 2014, he did not change or supplement his July 29, 

2014, opinion as it concerned Hartgrave’s right knee. Nevertheless, on August 28, 2015, Dr. 

McKee opined “[w]hat I am trying to say is that I feel his industrial injuries caused an 

aggravation to his right knee pain. . . . I believe that his industrial injuries moved up his need for 

total knee arthroplasty on the right.”

In evaluating Dr. McKee’s opinions, the Commission further noted that Dr. McKee’s 

August 28, 2015, opinion was not supported by medical records. As the Commission reasoned, 

“this is not a case where the treating physician reviewed further medical records and then 

changed his opinion.” Instead, Dr. McKee changed his opinion after reviewing Hartgrave’s 

deposition. Hartgrave does not argue the Commission was factually mistaken in this respect, but 

rather concedes that Dr. McKee rendered his August 28, 2015, opinion after reviewing 

Hartgrave’s deposition testimony, not further medical records. 

Hartgrave speculates that the absence of medical records does not necessarily mean pain 

in his right knee was never discussed, arguing “[i]t is well known that medical records are not 

infallible.” Hartgrave’s call for conjecture is stymied by Drs. McKee’s and Tallerico’s 

testimonies. Dr. McKee agreed in his deposition that, if Hartgrave had complained of pain in his 

right knee, “it would be documented[,]” as it would have been his obligation to do so. Likewise, 
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Dr. Tallerico agreed in his deposition that “there would be some documentation in the medical 

record about right knee pain . . . .”

The absence of supporting medical records notwithstanding, Hartgrave contends his 

deposition testimony was uncontradicted and was erroneously disregarded. Hartgrave is correct 

that “[t]his Court has repeatedly held that the uncontradicted testimony of a credible witness 

should not be disregarded.” Gerdon v. Con Paulos, Inc., 160 Idaho 335, 343, 372 P.3d 390, 398 

(2016) (citing Pierstorff v. Gray’s Auto Shop, 58 Idaho 438, 447–48, 74 P.2d 171, 175 (1937)). 

However, the Commission did not disregard Hartgrave’s deposition testimony. The Commission 

instead considered Hartgrave’s deposition testimony and ascribed greater weight to Dr. 

Tallerico’s opinions. The Commission was not required to accept Hartgrave’s testimony as 

conclusive of causation, given that “[t]he Commission may not decide causation without opinion 

evidence from a medical expert.” Serrano, 157 Idaho at 317, 336 P.3d at 250 (quoting Anderson, 

143 Idaho at 196, 141 P.3d at 1065). Further, the Commission’s decision to place greater weight 

on Dr. Tallerico’s opinions is not clearly erroneous because Hartgrave’s deposition testimony is 

internally inconsistent. For example, Hartgrave testified that he discussed the cause of his right 

TKA with Dr. McKee, stating that such discussion attributed the need for the right TKA to

“[b]eing on crutches for six weeks, totally on the right knee, it just caused all sorts of problems.” 

Apparently contradicting himself, Hartgrave later testified that he “d[id]n’t remember” whether 

Dr. McKee ever said that the right TKA “was related to either of [Hartgrave’s] left knee 

injuries[.]”

At any rate, in his deposition, Hartgrave testified that he started suffering from pain in his 

right knee after the left TKA in March 2013. Eventually, “[i]t just was at the point where 

[Hartgrave] couldn’t get around anymore.” Hartgrave had no plans of “having anything done 

with the right knee” before the left TKA in March 2013. Despite attributing pain in his right knee 

to the six-week period spent on crutches after the March 2013 left TKA, Hartgrave did not 

discuss pain in his right knee during that period, but instead waited until November 8, 2013. For 

that reason, until November 8, 2013, the medical records contain no self-reporting by Hartgrave 

of pain in his right knee.

Dr. Tallerico did not review Hartgrave’s deposition testimony, but he was informed of 

the material parts of the testimony. Dr. Tallerico refused to “get painted into a corner saying that 

[Hartgrave] is not telling the truth[,]” but he found Hartgrave’s testimony problematic. Dr. 
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Tallerico testified that “the bottom line is that I think being, you know, non-weight bearing or on 

crutches after that [March 2013 left TKA] is not going to cause the need or accelerate the need 

for the [right TKA].” Dr. Tallerico testified that he would have expected pain reports during the 

six weeks spent on crutches. He further testified that Hartgrave “surprisingly” made no mention 

of his right TKA during the third IME on November 21, 2013, even though the right TKA was 

performed just four days later. 

Dr. McKee opined to the contrary. After reviewing Hartgrave’s deposition testimony, Dr. 

McKee testified as to the time Hartgrave spent on crutches, opining that “I think it could 

aggravate an already damaged joint, yes.” The joint was already damaged, as Hartgrave was 

“bone on bone” in 2009; yet, he declined a right TKA at that time because he had no right knee 

pain. Although Dr. McKee testified that time spent on crutches “could” aggravate Hartgrave’s 

right knee, he agreed also that “general daily living” could aggravate Hartgrave’s right knee, and 

that eventually “something [wa]s going to set it off.” For example, Dr. McKee agreed that 

“getting in and out of bed . . . could aggravate [Hartgrave’s] right knee,” but was unaware 

whether that happened. He contradicted himself, however, by testifying that he could think of no 

other cause for Hartgrave’s right knee pain aside from the “altered gait following the 2013 [left 

TKA.]” Even so, like Dr. Tallerico, he further agreed that he would have expected Hartgrave to 

have made reports of pain during the six weeks spent on crutches, though no pain was reported 

during that window. Dr. McKee finally agreed that as of August 9, 2013, he had no concerns 

about the condition of Hartgrave’s right knee even though the six-week window Hartgrave spent 

on crutches had already come and passed. Nonetheless, he testified that, “I believe the need for a 

[right TKA] occurred earlier because of aggravation from being on crutches.” 

Again, the Commission determined that Dr. Tallerico’s opinions were entitled to the 

prevailing weight, which is not clearly erroneous. The evidence is in accord that Hartgrave was 

destined for a right TKA at some point, and his right knee was “bone on bone” in 2009, though

he refused a right TKA at that time because he was not experiencing pain. The evidence is in 

further accord that, from 2009 until the emergence of right knee pain on November 8, 2013, 

Hartgrave was engaged in any number of “general daily living” activities that could have 

triggered pain. While the evidence is conflicting as to the precise cause of the pain warranting 

the right TKA, Hartgrave has not shown the Commission’s decision to ascribe greater weight to 

the opinions of Dr. Tallerico, which are consistent with the medical records, is clearly erroneous. 
13

Distilling Hartgrave’s arguments ultimately reveals a request for this Court to employ a

de novo standard of review. Yet, that is not the proper standard of review at this juncture. E.g., 

Serrano, 157 Idaho at 317, 336 P.3d at 250 (“[T]his Court does not ‘conduct a de novo review of 

the evidence or consider whether it would have reached a different conclusion from the evidence

presented.’ ” (quoting Henderson v. McCain Foods, Inc., 142 Idaho 559, 565, 130 P.3d 1097, 

1103 (2006)). We affirm the Commission’s ruling that Hartgrave’s right TKA is not 

compensable.

B. We decline to award attorney fees on appeal.

Hartgrave and Respondents seek attorney fees on appeal. Hartgrave’s request arises under 

Idaho Code section 72-804, which permits “attorney fees on appeal where the employer or its 

surety unreasonably brought or contested a claim.” Rish v. Home Depot, Inc., 161 Idaho 702, 

707, 390 P.3d 428, 433 (2017) (quoting Morris v. Hap Taylor & Sons, Inc., 154 Idaho 633, 640, 

301 P.3d 639, 646 (2013)). However, based on the above, Respondents have not unreasonably 

contested Hartgrave’s claim. Hartgrave is thus not entitled to an award of attorney fees.

Respondents request as a sanction an award of attorney fees against Hartgrave’s counsel 

and cite to Idaho Appellate Rule 11.2(a), which provides in pertinent part:

The signature of an attorney or party constitutes a certificate that the 

attorney or party has read the notice of appeal, petition, motion, brief or other 

document; that to the best of the signer’s knowledge, information, and belief after 

reasonable inquiry [(a)] 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)] that 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. If the notice of appeal, petition, motion, brief, or other document is 

signed in violation of this rule, the court, upon motion or upon its own initiative, 

shall impose upon the person who signed it, a represented party, or both, an 

appropriate sanction, which may include an order to pay to the other party or 

parties the amount of the reasonable expenses incurred because of the filing of the 

notice of appeal, petition, motion, brief or other document including a reasonable 

attorney’s fee.

“We construe [Idaho Appellate Rule] 11.2 in the same manner as [Idaho Rule of Civil 

Procedure] 11(a)(1) because they have identical wording. [A]ttorney fees can be awarded as 

sanctions when a party or attorney violates either (a) the frivolous filings clause or (b) the 

improper purpose clause.” Andrews v. State Indus. Special Indem. Fund, 162 Idaho 156, ___,

395 P.3d 375, 379 (2017) (quoting Akers v. Mortensen, 160 Idaho 286, 289, 371 P.3d 340, 343 

(2016)).
14

Here, however, Hartgrave’s counsel has not violated Rule 11.2(a). Hartgrave’s position, 

though rejected, is not wholly unsupported, as the evidence is conflicting. Moreover, Hartgrave’s 

counsel did not pursue Hartgrave’s claim for an improper purpose. Respondents contend 

Hartgrave’s counsel is the only person who stands to benefit from this appeal by recovering 

attorney fees, but that argument is in error. While Respondents are correct that Hartgrave’s 

primary health insurer covered the right TKA and that the settlement agreement covered 

Hartgrave’s out-of-pocket costs, nothing suggests it was improper for Hartgrave’s counsel to 

pursue a subrogation claim. In fact, the parties’ settlement agreement authorized the subrogation 

claim, stating that:

[T]he parties dispute whether both past and future treatment related to 

[Hartgrave’s] right knee, including the TKA of November 2013, is causally 

related to the . . . injuries of February 3, 2009 and/or August 23, 2012. As 

discussed below, with respect to any such treatment received to date, the parties 

have agreed to submit this issue to the Commission for determination. To the 

extent the Commission determines that [Hartgrave’s] right knee condition is 

related to one or both of these injuries, the claim shall remain open for any future 

medical benefits related to that condition which are otherwise compensable . . . .”

As contemplated by the settlement agreement, Hartgrave’s counsel pursued Hartgrave’s claims 

before the Commission. Hartgrave then requested that his counsel file this appeal. 

Respondents further contend sanctions are proper because “during the suspension and 

temporary remand of the appeal to the Commission, [Hartgrave] requested that the Commission 

reopen the claim and take additional evidence. This is despite the fact [Hartgrave’s counsel] 

previously agreed to have this case be decided on a stipulated record.” Even so, Hartgrave’s 

counsel’s conduct does not warrant sanctions. When this Court stayed Hartgrave’s appeal on 

January 19, 2017, it remanded the case to the Commission “to review the allegedly omitted 

exhibits and for whatever action appropriate including issuing a new order which is appealable 

to this Court.” (emphasis added). Hartgrave’s counsel then moved to submit additional evidence 

that would purportedly show Hartgrave’s right TKA had “ ‘failed,’ such that it was probable that 

[Hartgrave] would require a repeat procedure, which would be significantly more complicated 

and expensive[.]” The settlement agreement clearly permitted the parties to litigate whether “past 

and future treatment related to [Hartgrave’s] right knee . . . is causally related to [the accidents].” 

(emphasis added).

Accordingly, Respondents are not entitled to an award of attorney fees as a sanction 

against Hartgrave’s counsel.
15

V. CONCLUSION

We affirm the Commission’s ruling Hartgrave’s right TKA is not compensable. Costs on 

appeal, but not attorney fees, are awarded to Respondents.

Justices BEVAN, and Justices Pro Tem SCHROEDER and HUSKEY CONCUR.

MEDEMA, J. Pro Tem, specially concurring.

I fully concur in the majority opinion. I write simply because I am concerned that some 

language in the opinion may be read more broadly than intended.

The majority states: “[i]n fact, this Court has recognized that, in addition to the 

immediate injury sustained in an accident, a new and distinct injury that later emerges may be 

compensable if its cause can be traced to the ‘accident.’ ” The majority cites to Anderson v. 

Harper’s Inc. and Duncan v. Navajo Trucking as examples of cases where such has occurred. I 

agree with the majority that the sentence aptly describes the result in both of those cases. I am 

simply concerned that the language—“a new and distinct injury that later emerges may be 

compensable if its cause can be traced to the ‘accident’ ”—not be misinterpreted. Hopefully, the 

facts in Duncan will illustrate my concern. 

Mr. Duncan was involved in an accident at his work. It was immediately apparent to him 

that he injured his right knee in that accident and he quickly sought treatment for that injury. See 

Duncan, 134 Idaho at 203, 998 P.2d at 1116. It was not immediately apparent to him that he hurt 

his back. Over the course of the next month and a half, Mr. Duncan experienced pain in his hip 

and leg that was evident to his girlfriend, but he did not report feeling such pain to any doctor. Id. 

at 204, 998 P.2d at 1117. Approximately six weeks after injuring his knee, Mr. Duncan went 

swimming. While swimming, his injured knee continually locked up. The next day Mr. Duncan 

felt excruciating pain in his lower back. Id. at 203, 998 P.2d at 1116. One doctor opined that Mr. 

Duncan had ruptured a disk in his lower back. Id. The Commission awarded Mr. Duncan 

compensation for the treatment related to his back injury and this Court affirmed.

I write to point out that Mr. Duncan did not argue that, and this Court did not address 

whether, he was entitled to compensation for a new and distinct injury (the ruptured disk in his 

back) if that injury had occurred while he was swimming, because its cause could be traced back 

to his workplace accident via this path: but for the accident his knee would not have locked up 

while swimming; but for his knee locking up while swimming, he would not have injured his 

back. This Court simply found substantial, competent evidence to support the Commission’s 
16

determination that Mr. Duncan’s back injury was caused by his accident because there was 

evidence that his back was injured before he went swimming. One doctor testified that hip and 

leg pain are consistent with having suffered a ruptured disk in the lower back. See id. at 204, 998 

P.2d at 1117. That doctor conceded that if the Commission believed Mr. Duncan had 

experienced such pain in the timeframe between the accident and the swimming episode, the 

doctor would be willing to attribute the back injury to the industrial accident. Id. Mr. Duncan 

testified that he had experienced such pain and his testimony was supported by that of his 

girlfriend. Id. This Court found such testimony sufficient to affirm the Commission’s award.

I am concerned that the majority’s statement that a new and distinct injury that emerges 

sometime after an accident may be compensable if its cause can traced back to the accident itself 

may be interpreted as this Court expressing a new view of what is compensable in workman’s 

compensation cases. While an apt description of the circumstances in Duncan and Anderson, this 

Court did not use that language to describe the applicable test for causation in those cases. 

Indeed, the Court did not use that language in Duncan or Anderson at all. I write simply to 

clarify my understanding that today’s opinion does not change the standard of causation a 

claimant must establish in order to receive compensation for a particular injury under Idaho’s 

Worker’s Compensation Act; nor does it expand the scope of the injuries compensable under that 

Act.