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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 49511

VERONICA ARREOLA,

 Claimant-Appellant,

v.

SCENTSY, INC., Employer; and GRANITE 

STATE INSURANCE CO., Surety,

 Defendants-Respondents.

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Boise, December 2022 Term

Opinion Filed: June 23, 2023

Melanie Gagnepain, Clerk

Appeal from the Idaho Industrial Commission.

The order of the Commission is vacated, and the case is remanded with 

instructions for further proceedings.

Goicoechea Law Offices, Chtd., Boise, for Appellant. Justin Aylsworth argued.

Bowen & Bailey, LLP, Boise, for Respondents. Rachael O’ Bar argued.

BRODY, Justice.

This appeal arises out of the Idaho Industrial Commission’s order denying Veronica 

Arreola’s petition for a declaratory ruling and motion for reinstatement of compensation. Arreola 

brought her petition and motion against the Granite State Insurance Co. (“the Surety”), when the

Surety, without an order from the Commission—as permitted by our interpretation of Idaho 

Code section 72-434 in Brewer v. La Crosse Health & Rehab, 138 Idaho 859, 71 P.3d 458 

(2003)—invoked section 72-434 to suspend Arreola’s compensation payments. In the Surety’s 

unilateral and private determination, suspending Arreola’s compensation payments was

appropriate because the Surety had purportedly scheduled Arreola’s Independent Medical Exam 

(“IME”) with its physician at a “reasonable” time, I.C. § 72-433(1), and Arreola had 

“unreasonably” failed to submit to or had obstructed the scheduled IME by not appearing, I.C. § 

72-434. Arreola’s petition and motion disputed these private conclusions by the Surety. Arreola
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also maintained that only the Commission has the authority to adjudicate the underlying medical 

exam dispute and determine whether there is a factual basis to execute the enforcement 

mechanisms in Idaho Code section 72-434. The Commission denied the petition and motion, 

instructing Arreola to instead proceed through a complaint for relief.

For the reasons discussed below, we conclude that our decision in Brewer interpreting 

Idaho Code section 72-434 was manifestly wrong. Only the Commission has the authority to 

adjudicate medical exam disputes, and to enforce that adjudication through the enforcement 

mechanisms in section 72-434 by ordering the suspension of both the injured employee’s

compensation payments and “right to take or prosecute any proceedings” under the Worker’s 

Compensation Law (“the Law”) until the failure or obstruction by the injured employee related 

to the requested medical exam ceases.

In light of this, Arreola’s concern that the Surety’s unilateral execution of the 

enforcement mechanisms in section 72-434 also suspended her right to file a “complaint” to seek 

relief is now abated. With Brewer overruled and the authority of the Commission clarified, there 

is no legal impediment to filing a “complaint” below, as initially preferred by the Commission. 

Nevertheless, we do not affirm. Given the shift in the legal landscape with Brewer overruled, we 

vacate the Commission’s order denying the petition and motion, and remand with instructions 

that the Commission: (1) order payment of prospective compensation payments that might be 

owed until such time as the Commission determines that payments are not required under section 

72-434; (2) reconsider the appropriate procedural mechanism for adjudicating the underlying

factual dispute; and (3) instruct the Surety what procedural mechanism it must use to obtain an 

order authorizing it to lawfully suspend compensation payments.

I. FACTUAL AND PROCEDURAL BACKGROUND

In May 2021, Arreola experienced an industrial accident, and injured her right shoulder 

while using a mallet in the course of her employment with Scentsy, Inc. Arreola timely made a 

worker’s compensation claim for benefits. Two weeks later, her claim was “accepted” as 

“compensable” by the Surety and benefits later commenced. A few weeks after that, Arreola 

underwent an MRI and, one week later, visited a treating orthopedic physician. After reviewing 

the MRI and examining Arreola, the treating physician diagnosed Arreola with a “traumatic” 

right rotator cuff tear, recommended that her injury “requires surgical intervention[,]” and 

thereafter sought authorization from the Surety to perform surgery on Arreola’s shoulder. The 
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physician also noted that Arreola had “an acute rotator cuff tear [that] needs to be repaired 

sooner [rather] than later,” and emphasized that “time is of the essence.”

The Surety did not immediately authorize surgery; instead, it placed the request from the 

treating physician “under review[.]” Three weeks into review, the Surety sent Arreola a notice

instructing her to submit to an IME with Dr. Jeffrey Hessing twenty days after the notice date. 

The Surety had apparently scheduled the IME without coordinating with Arreola. Six days 

before the scheduled IME, Arreola’s attorney responded to the notice, and informed the Surety 

that Arreola could not attend the IME at the scheduled time because it was in “direct conflict” 

with Arreola’s “long-standing” obligations to care for a relative. Arreola’s attorney also 

requested that the Surety coordinate the scheduling of all IMEs with his office. 

Five days after Arreola’s attorney responded, the Surety sent another notice, instructing 

Arreola to submit to an IME with Dr. Hessing at a rescheduled date and time. Apparently, the 

Surety had again unilaterally scheduled the IME. Four days after the second notice was sent,

Arreola’s attorney responded and informed the Surety that Arreola could not attend the

rescheduled IME for the same reason as before: Arreola had a prior, “unavoidable obligation” 

during the rescheduled day and time to care for her relative. Arreola’s attorney again requested 

that the Surety coordinate the scheduling of all IMEs with his office. One day before the 

rescheduled IME, the Surety responded to Arreola’s attorney that the IME would not be 

rescheduled a second time: “I have given your client ample opportunity to attend an IME. If she 

fails to attend the IME tomorrow her time loss benefits will be stopped.”

Arreola did not attend the rescheduled IME. Three days later, the Surety issued a “Notice 

of Claim Status” to Arreola, and explained that due to Arreola’s “failure to attend the medical 

examination[,] [the Surety was] suspending [Arreola’s] temporary total disability benefits under 

Idaho Code [section] 72-434.” The Surety added that Arreola’s benefits “will be suspended until 

[Arreola] attend[s] an independent medical examination with Dr. Hessing’s office.” In the 

meantime, Arreola’s treating physician still had not received authorization from the Surety to 

perform the recommended surgery.

Subsequently, Arreola sought intervention from the Commission. Instead of filing a 

complaint with a motion for an emergency hearing, Arreola filed a motion for reinstatement of 

compensation, or in the alternative, a petition for a declaratory ruling from the Commission to 

reinstate her compensation based on the Surety’s unlawful execution of section 72-434. Arreola 
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also sought “sanctions” and attorney fees against the Surety for its “punitive” use of section 72-

434 to arbitrarily “penalize” Arreola for missing the IME that the Surety had unilaterally 

scheduled, and allegedly knew Arreola could not attend due to a preexisting conflict. 

The Commission did not reach the merits of Arreola’s request for relief. Instead, the 

Commission denied Arreola’s motion and petition as procedurally improper and declined to hold 

a hearing on the underlying factual dispute or to issue a declaratory ruling reinstating 

compensation payment. The Commission explained that because Arreola had not yet filed a 

complaint, Arreola’s motion was not properly before the Commission. Thus, it could not be ruled 

upon. As for Arreola’s petition for a declaratory ruling, the Commission declined to use this 

procedural mechanism to resolve the underlying dispute even though the Commission’s Judicial 

Rules of Practice and Procedure specifically authorize it to issue a declaratory ruling. Instead, the 

Commission instructed Arreola that the preferred procedural path was for her to pursue relief 

through administrative litigation, by filing a complaint and a motion for an emergency hearing

before an assigned referee.

Arreola timely appealed from the denial of her petition for a declaratory ruling and 

motion for reinstatement of benefits.

II. STANDARD OF REVIEW

“In reviewing a decision of the Commission, this Court exercises free review over the 

Commission’s legal conclusions.” Clark v. Shari’s Mgmt. Corp., 155 Idaho 576, 579, 314 P.3d 

631, 634 (2013). “The interpretation of a statute is a question of law over which this Court 

exercises de novo review.” Kelly v. TRC Fabrication, LLC, 168 Idaho 788, 791, 487 P.3d 723, 

726 (2021) (quoting Robison v. Bateman-Hall, Inc., 139 Idaho 207, 210, 76 P.3d 951, 954 

(2003)). “When doing so, this Court ‘must liberally construe the provisions of the worker’s 

compensation law in favor of the employee, in order to serve the humane purposes for which the 

law was promulgated.’ ” Clark, 155 Idaho at 579, 314 P.3d at 634 (quoting Jensen v. City of

Pocatello, 135 Idaho 406, 413, 18 P.3d 211, 218 (2000)).

III. ANALYSIS

On appeal, Arreola first focuses on the underlying factual dispute. Arreola alleges that the 

Surety refused to coordinate with Arreola in scheduling the IME on the dates and times she was

available. Thus, according to Arreola, there is no factual basis to execute Idaho Code section 72-

434 and suspend her compensation payments because the Surety did not schedule an IME for a 
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“reasonable” time, see I.C. § 72-433(1), and Arreola did not “unreasonably” fail to submit to or 

otherwise obstruct the IME, see I.C. § 72-434. However, we do not reach this underlying factual 

dispute that the Commission never addressed in denying Arreola’s petition and motion below.

Instead, Arreola’s appeal turns on questions of law raised by Arreola related to the proper 

interpretation and operation of Idaho Code section 72-434.

Citing to case law from this Court interpreting the Idaho Worker’s Compensation Law, 

along with Idaho Code section 72-707, Arreola maintains that only the Commission can 

adjudicate disputes related to employer-directed medical examinations arising under Idaho Code 

sections 72-433(1) and 72-434 (like the one here); and then through the enforcement 

mechanisms in section 72-434 for such adjudications, only the Commission can suspend an 

injured employee’s payment of compensation and “right to take or prosecute any proceedings” 

under the Law for the time “such failure or obstruction” by the injured employee “continues.”

Based on this, Arreola contends the Surety here acted unlawfully when it unilaterally 

executed the enforcement mechanisms in Idaho Code section 72-434 without first obtaining an

order from the Commission. Part of this execution included suspending payment of Arreola’s 

compensation benefits, and Arreola maintains that this execution also necessarily suspended her 

“right to take or prosecute any proceedings” under the Law because the dual mechanisms in 

section 72-434 are both conjoined by “and”—and made mandatory by the use of “shall” in the 

statute. In other words, Arreola argues that the Surety’s unilateral execution of section 72-434 

creates a “Catch-22” because it simultaneously suspends both her compensation payments and 

her ability to challenge that suspension and obtain reinstatement through the procedural 

mechanism the Commission insisted on below: the filing of a complaint. 

On this note, Arreola essentially asks this Court to revisit our interpretation of Idaho 

Code section 72-434 in Brewer v. La Crosse Health & Rehab, 138 Idaho 859, 864, 71 P.3d 458, 

463 (2003), and conclude that Brewer was manifestly wrong when it held that private employers

and sureties could unilaterally enforce and execute section 72-434 (as the Surety did here)

without first obtaining authority to do so through an order from the Commission. In the 

alternative, Arreola argues that if Brewer’s interpretation of section 72-434 is correct, then the 

statute is unconstitutional under the nondelegation doctrine and due process.

Under her nondelegation argument, Arreola argues that if Idaho Code section 72-434 

unilaterally allows a private surety to suspend both payment of compensation, and the 
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employee’s “right to take or prosecute any proceedings” under the Law to challenge the surety’s

action—then the Idaho Legislature has, through section 72-434, unconstitutionally delegated 

power to private sureties (who are adverse to injured employees) to make the sureties the “judge, 

jury, and executioner” of medical exam disputes arising under sections 72-433(1) and 72-434. In 

support of her argument, Arreola points to, among other things, the United States Supreme Court 

decision in Carter v. Carter Coal Co., 298 U.S. 238, 310–12 (1936), where the Court held that

Congress had unconstitutionally delegated power to private producers and miners to fix the

maximum hours of labor—instead of a disinterested governmental agency.

Under her due process argument, Arreola argues that if Idaho Code section 72-434 

permits a private surety to unilaterally suspend an injured employee’s compensation payments

without notice and before a meaningful hearing is held in front of a neutral decision-maker (i.e., 

the Commission)—particularly when entitlement to (i.e., liability for) compensation is 

undisputed (as it is here)—then Idaho Code section 72-434 violates the Due Process Clauses of 

both the United States Constitution and the Idaho Constitution. According to Arreola, those 

clauses require a pretermination hearing in these circumstances under both constitutions.

Consistent with the doctrine of constitutional avoidance, we do not reach Arreola’s 

alternative constitutional arguments under the nondelegation doctrine and due process. See 

Miller v. Idaho State Patrol, 150 Idaho 856, 864, 252 P.3d 1274, 1282 (2011) (“The general rule 

of constitutional avoidance encourages courts to interpret statutes so as to avoid unnecessary 

constitutional questions.”). Idaho Code section 72-434 can be interpreted consistently with the 

Worker’s Compensation Law to avoid these constitutional questions, and in doing so, it is clear 

that our interpretation of section 72-434 in Brewer was manifestly wrong.

A. Only the Commission has the authority to adjudicate medical exam disputes under 

Idaho Code sections 72-433(1) and 72-434, and order the implementation of the

enforcement mechanisms in section 72-434.

“When there is controlling precedent on questions of Idaho law ‘the rule 

of stare decisis dictates that we follow it, unless it is manifestly wrong, unless it has proven over 

time to be unjust or unwise, or unless overruling it is necessary to vindicate plain, obvious 

principles of law and remedy continued injustice.’ ” Greenough v. Farm Bureau Mut. Ins. Co. of

Idaho, 142 Idaho 589, 592, 130 P.3d 1127, 1130 (2006) (quoting Houghland Farms, Inc. v.

Johnson, 119 Idaho 72, 77, 803 P.2d 978, 983 (1990)). In Brewer v. La Crosse Health & Rehab, 
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we held that an employer or surety could unilaterally execute Idaho Code section 72-434 and 

suspend payment of compensation to an injured employee without first obtaining an order from 

the Commission because nothing “expressly nor implicitly” required the employer or surety to 

“obtain an order of the Commission prior to suspending benefits for obstruction of an IME.” 138 

Idaho 859, 864, 71 P.3d 458, 463 (2003). This interpretation of Idaho Code section 72-434 in 

Brewer, effectively reading section 72-434 as delegating adjudicatory and enforcement authority

to employers and sureties over injured employees, was manifestly wrong. 

The fundamental misstep in Brewer was to read the language of Idaho Code section 72-

434 in isolation instead of in context of the Idaho Worker’s Compensation Law as a whole. This 

approach is required here because unlike Idaho Code section 72-435 which expressly authorizes

the Commission to suspend or reduce compensation of an injured employee who persists in

certain injurious practices—Idaho Code section 72-434 is completely silent on who is authorized 

to invoke and execute its enforcement mechanisms for a medical exam dispute. See Arneson v.

Robinson, 59 Idaho 223, 239, 82 P.2d 249, 255 (1938) (explaining that the Workmen’s 

Compensation Act of 1917 must be “construed and considered as a whole” to answer a particular 

question the statutory scheme is silent on where the scheme was passed as a complete act); 1971 

Idaho Sess. Laws 422, 422–85 (recodifying, as a complete act, the Workmen’s Compensation 

Act of 1917 into the Worker’s Compensation Law, I.C. §§ 72-101 to 72-805 (1971)).

When the relevant provisions under the Law are read in context as a whole, it plainly 

does not empower or authorize an employer or surety to unilaterally invoke and execute the 

enforcement mechanisms in Idaho Code section 72-434 without first obtaining an order from the 

Commission. Accordingly, Brewer’s interpretation of section 72-434 was “manifestly wrong, 

[and] stare decisis does not require that we continue an incorrect reading of [that] statute.” 

Greenough, 142 Idaho at 592–93, 130 P.3d at 1130–31.

We begin where we did not in Brewer, by applying our well-settled approach to statutory 

interpretation that forbids reading provisions in isolation: 

Statutory interpretation begins with the literal language of the statute. Provisions 

should not be read in isolation, but must be interpreted in the context of the entire 

document. The statute should be considered as a whole, and words should be 

given their plain, usual, and ordinary meanings. It should be noted that the Court 

must give effect to all the words and provisions of the statute so that none will be 

void, superfluous, or redundant. When the statutory language is unambiguous, the 
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clearly expressed intent of the legislative body must be given effect, and the Court 

need not consider rules of statutory construction.

Nelson v. Evans, 166 Idaho 815, 820, 464 P.3d 301, 306 (2020) (emphasis added) (citation 

omitted).

The four relevant statutes under the Worker’s Compensation Law to interpreting the plain 

meaning of Idaho Code section 72-434 are sections 72-707, 72-712, 72-433(1), and 72-434:

All questions arising under this law, if not settled by agreement or stipulation

of the interested parties with the approval of the commission, except as 

otherwise herein provided, shall be determined by the commission.

I.C. § 72-707 (emphasis added).

Upon application of any party to the proceeding, or when ordered by the

commission or a member thereof or a hearing officer, referee or examiner, and 

when issues in a case cannot be resolved by pre-hearing conferences or 

otherwise, a hearing shall be held for the purpose of determining the issues.

I.C. § 72-712 (emphasis added).

After an injury or contraction of an occupational disease and during the period 

of disability the employee, if requested by the employer or ordered by the 

commission, shall submit himself for examination at reasonable times and 

places to a duly qualified physician or surgeon.

. . . .

I.C. § 72-433(1) (emphasis added).

If an injured employee unreasonably fails to submit to or in any way obstructs 

an examination by a physician or surgeon designated by the commission or the 

employer, the injured employee’s right to take or prosecute any proceedings 

under this law shall be suspended until such failure or obstruction ceases, and 

no compensation shall be payable for the period during which such failure or 

obstruction continues.

I.C. § 72-434 (emphasis added).

When considered as a whole, Idaho Code sections 72-707, 72-712, 72-433(1), and 72-434 

plainly operate in at least two ways. Contrary to Brewer, neither way delegates authority to an 

employer or surety to unilaterally adjudicate a dispute, and thereafter execute the enforcement 

mechanisms in Idaho Code section 72-434. First, Idaho Code section 72-707 prevents an 

employer or surety and an injured employee from settling “by agreement or stipulation” a 

medical exam dispute without obtaining a stamp of “approval” from the Commission. This is 

because there is nothing “otherwise herein provided” in the Worker’s Compensation Law that 

allows private settlement. See I.C. §§ 72-101 to 72-929; see also I.C. § 72-404 (allowing 
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parties to, in certain circumstances, compromise and settle “claims” for compensation

without Commission approval—but not disputes under sections 72-433(1) and 72-434).

Second, if the employer or surety and the injured employee have a medical exam dispute that 

arises under sections 72-433(1) and 72-434—and cannot settle it with the Commission’s stamp 

of approval through, for example, an informal pre-hearing conference—then the dispute “shall be 

determined by the [C]ommission.” See I.C. §§ 72-707, 72-712.

Accordingly, when there is such an unresolved dispute, before any “suspen[sions]” 

pursuant to Idaho Code section 72-434 can be executed, the Commission must adjudicate the 

dispute through a hearing. See I.C. § 72-712 (explaining that the Commission “shall” hold a 

“hearing” to determine issues “in a case that cannot be resolved by pre-hearing conferences or 

otherwise”); see also Curr v. Curr, 124 Idaho 686, 690, 864 P.2d 132, 136 (1993). Only after the 

Commission has adjudicated the dispute, and made findings of fact, can the Commission

determine whether it “shall” execute the dual enforcement mechanisms in Idaho Code section 

72-434 and simultaneously suspend both the injured employee’s: (1) payment of compensation; 

and (2) “right to take or prosecute any proceedings” under the Law—“until such failure or 

obstruction” by the injured employee related to the medical exam requested by the employer

or surety “ceases.” See I.C. §§ 72-434, 72-433(1), 72-707, 72-712.

That said, if an employer or surety desires to have the enforcement mechanisms in

section 72-434 operate against an injured employee, the employer or surety must request an order 

from the Commission. Nothing in the Idaho Worker’s Compensation Law authorizes the

employer or surety to privately and unilaterally determine its scheduling of an exam was 

reasonable while the employee’s conduct was unreasonable, and then execute the dual

enforcement mechanisms in section 72-434 by suspending an injured employee’s benefits until

such time as the employer or surety determines, in its discretion, that the employee’s “failure or 

obstruction” has adequately “cease[d].” Pursuant to the plain language of Idaho Code section 72-

707, this authority rests solely with the Commission. If the Commission orders the injured

employee’s compensation and “right to take or prosecute any proceedings” under the Law 

suspended after adjudicating a medical exam dispute, then the Commission’s order is what gives

the surety or employer the authority to suspend payment of compensation.

With this clarified, we turn to Arreola’s pressing concern that the Surety’s unilateral

execution of Idaho Code section 72-434 also suspended her “right to take or prosecute any 
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proceedings” under the Law before the Commission; i.e., it suspended her ability to file a 

complaint to challenge the Surety’s actions at all. For the reasons below, it did not. 

The provisions in section 72-434 that suspend an employee’s “right to take or prosecute 

any proceedings” under the Law if the employee “unreasonably” fails to submit to, or otherwise 

obstructs a requested medical exam have been part of Idaho’s worker’s compensation scheme in 

substantially the same form since its original enactment in 1917:

Sec. 29. After an injury and during the period of disability, the workman, 

if so requested by his employer, or ordered by the Board shall submit himself to

examination, at reasonable times and places, to a duly qualified physician or 

surgeon designated and paid by the employer. . . . If a workman refuses to submit 

himself to or in any way obstructs such examination, his right to take or prosecute 

any proceedings under this Act shall be suspended until such refusal or 

obstruction ceases, and no compensation shall be payable for the period during 

which such refusal or obstruction continues.

1917 Idaho Sess. Laws 252, 267–68 (emphasis added); 1971 Idaho Sess. Laws 422, 461; I.C. §§

72-433(1), 72-434 (2023).

To give effect to all the words in section 72-434 and render none superfluous, Nelson, 

166 Idaho at 820, 464 P.3d at 306, the phrase “to take or prosecute any proceedings” must be 

interpreted in two parts. The meaning of “to . . . prosecute” any proceeding is relatively 

straightforward: to “prosecute” is “[t]o follow up” or “to carry on an action or other judicial 

proceeding” that has already commenced. See Prosecute, Black’s Law Dictionary (2nd ed. 1910).

On the other hand, the meaning of “to take” any proceeding is not so straightforward.

Between 1911 and 1917, when worker’s compensation schemes were first enacted in the 

United States, many states—including Idaho—borrowed from the English Workmen’s 

Compensation Act of 1897 (“Act of 1897”), and the English Workmen’s Compensation Act of

1906 (“Act of 1906”), which amended the Act of 1897. See McNeil v. Panhandle Lumber Co., 

34 Idaho 773, 781, 203 P. 1068, 1071 (1921); Skelly, 62 Idaho at 198, 109 P.2d at 624;

McCormick v. Cent. Coal & Coke Co., 232 P. 1071, 1074 (Kan. 1925); Jeremiah Smith, Sequel

to Workmen’s Compensation Acts, 27 HARV. L. REV. 235, 247 (1914). However, states did not

borrow uniformly, and not all borrowed the “take” language in the analogous provision of their 

worker’s compensation scheme. See, e.g., 1911 Mass. Acts 998, 1003 (“If he refuses to submit 

himself for the examination, or in any way obstructs the same, his right to compensation shall be 

suspended, and his compensation during the period of suspension may be forfeited.”).
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Relevant here, under the English Acts of 1897 and 1906, to “take” a proceeding for 

compensation was equivalent to “commencing” a proceeding to bring or enforce a claim of

compensation against an employer. See Act of 1897, 60 & 61 Vict. ch. 37 § 1(2)(b) (explaining 

that a workman may either commence proceedings under the Act or “take” proceedings under 

the common law against a third party, but not both), reprinted in M. Robert-Jones, Handbook on 

the Workmen’s Compensation Act 1897, at 12 (London, Cardiff: Western Mail, Ltd., 5th 

ed. 1898), https://archive.org/details/handbookonworkme00robe/page/12/mode/2up (last visited 

June 12, 2023); Act of 1906, 6 Edw. 7 ch. 58 § 1(2)(b) (using the term “take” in the same 

manner), reprinted in V. R. Aronson, The Workmen’s Compensation Act 1906, at 71 (London, 

T. F. Unwin 1909), https://archive.org/details/workmenscompens00britgoog/page/71/mode/2up

(last visited June 12, 2023); Act of 1897, 60 & 61 Vict. ch. 37 § 1(4) (“If, within the time 

hereinafter in this Act limited for taking proceedings. . . .”); Act of 1906, 6 Edw. 7 ch. 58 § 1(4)

(using the term “taking proceedings” in the same manner); see also Act of 1906, 6 Edw. 7. ch. 58 

§ 6 (explaining a workman’s right to claim compensation versus his right to “take” proceedings

at common law for damages against a third party); see, e.g., Clatworthy v. R. & H. Green, Ltd., 

86 L. T. 702 (June 4, 1902) (explaining that a widow of a workman was “entitled to take

proceedings under the Act [of 1897] to enforce her claim” of compensation), reprinted in 4 

R. M. Minton-Senhouse, A Digest of Workmen’s Compensation Cases, at 153 (London, 

Butterworth & Co., 2d ed. 1904),

https://archive.org/details/workmenscompens00coltgoog/page/n164/mode/2up (last visited June 

12, 2023).

Importantly, except for a few terms, the relevant provision in Idaho’s Act of 1917—now 

recodified in a substantially similar form in Idaho Code sections 72-433(1) and 72-434—

borrowed directly from the analogous provisions in the English Workmen’s Compensation Act 

of 1906:

(4) Where a workman has given notice of an accident, he shall, if so 

required by the employer, submit himself for examination by a duly qualified 

medical practitioner provided and paid by the employer, and, if he refuses to

submit himself to such examination, or in any way obstructs the same, his right to 

compensation, and to take or prosecute any proceedings under this Act in relation 

to compensation, shall be suspended until such examination has taken place.

. . . .
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(14) Any workman receiving weekly payments under this Act shall, if so 

required by the employer, from time to time submit himself for examination by a 

duly qualified medical practitioner provided and paid by the employer. If the 

workman refuses to submit himself to such examination, or in any way obstructs 

the same, his right to such weekly payments shall be suspended until such 

examination has taken place.

(15) . . . . If a workman, on being required so to do, refuses to submit 

himself for examination by a medical referee to whom the matter has been so 

referred as aforesaid, or in any way obstructs the same, his right to compensation 

and to take or prosecute any proceeding under this Act in relation to 

compensation, or, in the case of a workman in receipt of a weekly payment, his 

right to that weekly payment, shall be suspended until such examination has taken 

place.

. . . .

(20) Where under this schedule a right to compensation is suspended no 

compensation shall be payable in respect of the period of suspension.

Act 1906, 6 Edw. 7 ch. 58, sched. I, paras. 4, 14, 15, 20 (emphasis added), reprinted in V. R.

Aronson, The Workmen’s Compensation Act 1906, at 212–32 (London, T. F. Unwin 1909),

https://archive.org/details/workmenscompens00britgoog/page/222/mode/2up (last visited June 

12, 2023).

Notably, the rules enacted and adopted under the English Act of 1906—no different than

the analogous provision in Idaho Code section 72-434 today—did not allow employers to 

unilaterally suspend either the injured employee’s payment of compensation or the right “to take 

or prosecute” any proceedings when an injured employee allegedly refused to submit to or 

obstructed a medical exam requested by an employer. See Workmen’s Compensation Rules 

1907, 6 Edw. 7 ch. 58, Rule 55, reprinted in V. R. Aronson, The Workmen’s Compensation

Act 1906, app. A, at 307 (London, T. F. Unwin 1909).

Instead, if a dispute arose, employers were required to first “apply” to the relevant 

committee, arbitrator, or judge to request—through notice and a meaningful hearing—that the 

injured employee’s rights to compensation and “to take or prosecute” any proceedings be 

suspended. See id. The English Act of 1906, through its adopted rules, even provided a standard 

form for an employer to give notice to the employee that the employer “intend[ed] to apply” to a 

judge at a future hearing “for an order suspending” the employee’s “right to 

compensation . . . and to take or prosecute any proceedings under [the Act of 1906] in relation to 

compensation . . . on the ground that [the employee] refuse[s] to submit [themselves] to medical 
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examination as required by [the employer],” in accordance with paragraphs 4, 14, or 15 of the 

“first schedule” to the Act of 1906. See id. Form 52, app. B, at 399, 

https://archive.org/details/workmenscompens00britgoog/page/399/mode/2up (last visited June 

13, 2023); see id. Rule 84, app. A, at 326 (adopting standard forms under the Act of 1906).

Accordingly, the term “to take” in section 72-434, as it has existed since Idaho’s original 

Act of 1917 when it was first borrowed from the English Acts of 1897 and 1906, is synonymous 

with “commencing” a proceeding to claim or enforce a claim of compensation. Under the 

modern Worker’s Compensation Law in Idaho, an injured employee does this by filing “an 

application requesting a hearing” with the Commission, I.C. § 72-706, or as the Commission has 

seen to put it, by filing a “complaint” with the Commission. See Judicial Rule of Practice and 

Procedure (“J.R.P.”) 3(A)(1) (2023) (changing the term “application” in I.C. § 72-706 to

“complaint”). 

In light of this, it was reasonable for Arreola to maintain that, under Brewer, the Surety’s 

unilateral invocation of section 72-434 simultaneously suspended both her payment of 

compensation and right “to take or prosecute any proceedings” under the Worker’s 

Compensation Law to then bar the filing of a complaint. However, with Brewer’s interpretation 

of section 72-434 overruled and our clarification of the Commission’s authority, Arreola’s 

concern of this “Catch-22” flowing from Brewer is now abated. As explained above, only the 

Commission has the authority to—after a hearing adjudicating a medical exam dispute—order 

that the dual enforcement mechanisms in Idaho Code section 72-434 be enforced and executed

against an injured employee. Thus, an order suspending the “right to take or prosecute any 

proceedings” under the Law necessarily cannot exist until after a proceeding with the 

Commission has already commenced, the issue is adjudicated, and the Commission orders 

that the dual enforcement mechanisms in section 72-434 be executed. 

In the instant case, the Surety unilaterally and privately determined, without an 

adjudication by the Commission, that the Surety had scheduled the IME at a “reasonable” time 

and place, I.C. § 72-433(1), and that Arreola had “unreasonably fail[ed] to submit to” or had 

otherwise “obstruct[ed]” the IME scheduled by the Surety, I.C. § 72-434. From this, and 

under Brewer, the Surety unilaterally executed Idaho Code section 72-434 without the authority 

of an order from the Commission. Part of this execution included suspending payment of

Arreola’s compensation. However, in light of the clarifications regarding section 72-434 
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announced today, the Surety had no authority to either unilaterally adjudicate the underlying 

dispute or execute the dual enforcement mechanisms in section 72-434. Moreover, because no 

proceeding before the Commission has adjudicated the underlying factual dispute, Arreola’s 

“right to take or prosecute any proceedings” under the Law is necessarily not suspended. 

This brings us to the procedural challenge Arreola raises on appeal: Whether the 

Commission acted in excess of its powers when it denied Arreola’s petition for a declaratory 

ruling and motion for reinstatement of benefits and instead required that she proceed through a

complaint and a motion for an emergency hearing to obtain any relief. Given our overruling of 

Brewer, and the resulting change in the legal landscape it brings, a decision by this Court at this 

juncture would be premature. On the one hand, with Brewer overruled, there is no longer a

procedural impediment to Arreola filing a complaint to pursue and receive relief as initially 

instructed and procedurally preferred by the Commission. On the other hand, with Brewer 

overruled, a surety or employer must have a procedural mechanism to adjudicate medical exam 

disputes. Accordingly, it is now necessary for the Commission to reconsider the appropriate

procedural mechanism, under its adopted Judicial Rules of Practice and Procedure, for securing a

“just, speedy, and economical determination” of the underlying medical exam dispute—and 

similar disputes between the parties moving forward. See J.R.P. 1(A). 

Currently, the Commission’s Judicial Rules of Practice and Procedure provide at least 

two procedural pathways: (1) filing a complaint and a motion—to then apply for a hearing, or for 

an emergency hearing (J.R.P. 3, 8); or (2) filing a petition for a declaratory ruling (J.R.P. 15). In 

light of Brewer being overruled today, whether one of these pathways will provide an employee 

“sure and certain” relief when their compensation payments are unlawfully suspended, I.C. § 72-

201—or provide a surety or employer a “just, speedy, and economical” procedure for lawfully

suspending payments when an employee refuses to submit to, or obstructs, a requested medical 

exam, J.R.P. 1(A)—is an issue the Commission must consider in the first instance, including in 

the circumstances of this case. Pursuant to Idaho Code sections 72-508, 72-707, and 72-708, the 

Commission may even determine a new procedure should be adopted and used to resolve such

disputes, particularly where they arise before a complaint is ever filed (like in this case).

For these reasons, we vacate the Commission’s decision denying Arreola’s motion for

reinstatement of benefits and petition for a declaratory ruling. Because our overruling of Brewer

applies only prospectively, we remand with instructions that the Commission: 
15

(1) enter an order directing the Surety to reinstate any prospectively owed

compensation that Arreola might be entitled to, if any, pending the resolution 

of the underlying dispute regarding Arreola’s past compensation payments; 

(2) determine the procedural process governing medical exam disputes under 

Idaho Code sections 72-433(1) and 72-434; and

(3) determine whether adjudicating the underlying dispute over past 

compensation should proceed by the filing of a complaint, a petition for 

declaratory ruling, or some other procedure.

Finally, because no factual findings were made below, we do not reach Arreola’s 

argument, based on the underlying factual dispute, that it is per se unreasonable for an employer

or surety to—as the Surety allegedly did here—unilaterally schedule a requested medical 

examination for an injured employee under Idaho Code section 72-433(1). Instead, that issue 

must be addressed on remand once the Commission determines the appropriate procedural

mechanism as instructed above.

B. Costs and Attorney Fees

Arreola and the Surety both request costs and attorney fees on appeal. Arreola also 

requests attorney fees for the proceedings below. Costs on appeal are awarded as a matter of 

course to the prevailing party, unless otherwise ordered by this Court. I.A.R. 40(a). Arreola is the 

prevailing party on appeal; thus, she is entitled to costs.

As for attorney fees, Arreola is not entitled to fees on appeal, and will only be entitled to 

fees for the proceedings below if she prevails in the underlying dispute over past compensation 

benefits and shows that the Surety had no reasonable basis in fact to discontinue payments.

Arreola requested fees on appeal, and for the proceedings below, under Idaho Code 

section 72-804. There are three circumstances in which fees may be awarded under that statute:

If the commission or any court before whom any proceedings are 

brought under this law determines that [1] the employer or his surety 

contested a claim for compensation made by an injured employee or dependent 

of a deceased employee without reasonable ground, or that an employer or his 

surety [2] neglected or refused within a reasonable time after receipt of a 

written claim for compensation to pay to the injured employee or his 

dependents the compensation provided by law, or [3] without reasonable 

grounds discontinued payment of compensation as provided by law justly due 

and owing to the employee or his dependents, the employer shall pay 

reasonable attorney fees in addition to the compensation provided by this law.

In all such cases the fees of attorneys employed by injured employees or their 

dependents shall be fixed by the commission.
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I.C. § 72-804 (emphasis added).

Typically, “[t]he decision that grounds exist for awarding a claimant attorney fees

[under I.C. § 72-804] is a factual determination which rests with the Commission.” Page v.

McCain Foods, Inc., 155 Idaho 755, 760, 316 P.3d 671, 676 (2014) (quoting Poss v. Meeker 

Mach. Shop, 109 Idaho 920, 926, 712 P.2d 621, 627 (1985) (second alteration in original)). 

However, attorney fees are also awarded under section 72-804 if an employer or surety contests a 

claim for compensation “without reasonable ground” through an appeal that is “frivolous[.]” See 

Baker v. La. Pac. Corp., 123 Idaho 799, 803, 853 P.2d 544, 548 (1993) (awarding fees on appeal 

when the employer’s arguments simply asked the Court to re-weigh the evidence). Accordingly, 

whether Arreola is entitled to fees on appeal or below because the Surety acted without a

“reasonable groun[d]” in discontinuing Arreola’s payments implicates a basis for fees in either

fact or law under Idaho Code section 72-804. See Page, 155 Idaho at 760, 316 P.3d at 676;

Baker, 123 Idaho at 803, 853 P.2d at 548.

As for the legal basis, the Surety did not discontinue compensation payments “without 

reasonable ground” in law because at the time it discontinued Arreola’s payments, it lawfully 

did so in reliance on and pursuant to Brewer’s interpretation of Idaho Code section 72-434. 

Although we overrule Brewer and clarify the Commission’s authority today, the Surety acted

pursuant to settled law at the time, defended settled law on appeal, and defended the decision of 

the Commission instructing Arreola to seek relief through a “complaint” and a motion for an 

emergency hearing. See Deon v. H & J, Inc., 157 Idaho 665, 672, 339 P.3d 550, 557 (2014) 

(denying fees under section 72-804 where it was reasonable to request that the Court affirm the 

Commission’s decision below in favor of the employer and surety). Thus, there is no legal basis 

to award Arreola fees under Idaho Code section 72-804, for the instant dispute, on appeal or 

during the proceedings on remand related to this Court’s overruling of Brewer. 

As for the factual basis, whether the Surety “discontinued payment of compensation” 

without “reasonable grounds” in fact was neither resolved below, nor by this appeal. It remains 

to be determined whether the Surety scheduled the IME for a “reasonable time[,]” I.C. § 72-

433(1), and whether Arreola “unreasonably” failed to submit to or obstructed the scheduled IME, 

I.C. § 72-434. Accordingly, this factual basis for fees cannot be used to award fees to Arreola for 

this appeal. Nevertheless, because this case is remanded to resolve the underlying dispute over 

past compensation, the Commission may revisit whether to award fees to Arreola for the entire 
17

proceedings below, excluding this appeal, and award fees to Arreola if the Surety discontinued

Arreola’s past compensation payments without a reasonable basis in fact.

Finally, the Surety’s request for attorney fees on appeal is denied. The only legal basis for 

fees cited by the Surety was for fees through sanctions against Arreola under Idaho Appellate 

Rule 11.2(a). Under Rule 11.2(a), “[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, 160, 395 P.3d 375, 379 (2017).

Here, the test for sanctions has plainly not been met. Arreola’s appeal, which brought to this 

Court’s attention its manifestly wrong decision in Brewer and the apparent procedural bar

flowing from it, was neither frivolous nor filed for an improper purpose. Arreola brought a “good 

faith argument” to reverse existing law—and has achieved it. See I.A.R. 11.2(a).

IV. CONCLUSION

For the reasons stated above, the Commission’s order is vacated, and this case is 

remanded for further proceedings with instructions to the Commission. Costs are awarded to 

Arreola on appeal under Idaho Appellate Rule 40. Arreola and the Surety are denied attorney 

fees on appeal. However, on remand, the Commission may revisit whether to award Arreola 

attorney fees under Idaho Code section 72-804, for the entire proceedings below.

Chief Justice BEVAN, and Justices STEGNER, MOELLER, and ZAHN CONCUR.