Darner v. Southeast Idaho In-Home Services

• Court: Idaho Supreme Court
• Writing for the Court: McDEVITT; BISTLINE, J., and CAREY; BAKES
• Citation: Darner v. Southeast Idaho In-Home Services, 122 Idaho 897, 841 P.2d 427 (Idaho 1992)
• Decision Date: 04 November 1992
• Docket Number: IN-HOME,No. 19160,19160
• Parties: Darlene D. DARNER, Claimant-Appellant, v. SOUTHEAST IDAHOSERVICES, employer, and State Insurance Fund, surety, employer, and State of Idaho Industrial Special Indemnity Fund, Defendants-Respondents. Idaho Falls, May 1992 Term

Page 427

841 P.2d 427

122 Idaho 897

Darlene D. DARNER, Claimant-Appellant, v. SOUTHEAST IDAHO IN-HOME SERVICES, employer, and State Insurance Fund, surety, employer, and State of Idaho Industrial Special Indemnity Fund, Defendants-Respondents.

No. 19160.

Supreme Court of Idaho,

Idaho Falls, May 1992 Term.

Nov. 4, 1992.

Lyon & Jorgensen, Pocatello, for claimant-appellant. Kenneth E. Lyon, Jr., argued.

Steven R. Fuller, Preston, for respondents Southeast Idaho In-Home Services and State Ins. Fund.

McDevitt, Meyers & Thomsen, Pocatello, for respondent State Industrial Sp. Indem. Fund, Jerry R. Meyers, argued.

McDEVITT, Justice.

BACKGROUND

Appellant, Darlene D. Darner, was employed by respondent Southeast Idaho In-Home Services ("In-Home"). Her duties at In-Home included assisting senior citizens with housework and personal care needs.

On October 7, 1988, appellant was assigned to help Marion Ruth Moffitt with some of Ms. Moffitt's housework needs. Specifically, appellant was assigned to clean the windows in Ms. Moffitt's mobile home. Appellant alleges that during the course of this work she sustained a back injury. As a result, appellant filed a claim for worker's compensation.

PROCEDURE

On March 22, 1989, appellant filed a worker's compensation application for hearing. In the application for hearing, appellant claimed that she had an "[i]njured lower back" and claimed a "[t]otal permanent impairment." In addition, she stated that "[w]hile taking down, cleaning & putting back up storm windows & drapes the claimant injured her lower back, she also had to move some furniture."

On April 11, 1989, respondents filed their answer to the application for hearing. In the answer, respondents denied that the accident occurred on or about the time claimed, that the accident occurred during the course of appellant's employment, and that the appellant was disabled. In addition, respondents alleged that appellant's "condition is attributable in whole or in part to a preexisting injury, infirmity or condition." ¹

On January 11, 1990, appellant filed a motion, pursuant to I.C. § 72-312, to join the Special Indemnity Fund of the State of Idaho as a party-defendant. In the motion, appellant stated that "part of the disability which she has received is attributable to an accumulation of prior injuries coupled with the present injury...." On February 9, 1990, the Industrial Commission granted the motion, and it directed appellant to file an amended application for hearing naming the Idaho Special Indemnity Fund as a party-defendant.

On March 5, 1990, respondents filed a motion to bifurcate the proceedings. Respondents requested that the first hearing be limited to the issue of "[w]hether or not a work-related accident occurred for which a compensable claim under Worker's Compensation laws may be allowed." Respondents also stated that "[t]he basis for this motion is that a conflict of evidence exists between witnesses as to whether or not an accident or injury occurred at the time, place, and in the manner specified by the Claimant." The motion was granted by order dated March 12, 1990.

On May 2, 1990, respondents filed an amended answer to the amended application for hearing. The amended answer was identical to the original answer except for the addition of an affirmative defense.

On October 2 and 9, 1990, respondents filed objections to appellant's motion to strike a statement made by her, which was recorded on November 2, 1988. Appellant had objected to the introduction of the transcribed statement at the time of hearing, stating that she had not had an opportunity to view the transcript and claiming surprise. In the motions, respondents asserted that appellant was not entitled to claim surprise since she did not make any requests for information through discovery. On October 15, 1990, the Industrial Commission denied appellant's motion to strike the recorded statement.

After briefs were filed with the Industrial Commission, the Industrial Commission entered its findings of fact, conclusions of law, and order denying appellant's claim on January 15, 1991. The Industrial Commission stated that the issue was "whether Claimant suffered a back injury as the result of an industrial accident on October 7, 1988." The Commission pointed to inconsistencies between the testimony of appellant and Ms. Moffitt, and it stated:

V

Based upon the Commission's observation of the Claimant during her testimony at the hearing and due to numerous inaccuracies in Claimant's testimony, the Commission does not find her testimony to be credible. The Commission finds Ms. Moffitt's testimony to be more credible as she has no reason to lie and has no stake in the matter. Therefore, the Commission finds that Claimant did not suffer a back injury during the course of her employment on October 7, 1988.

CONCLUSIONS OF LAW

I

A Claimant i[n] a worker's compensation case has the burden of proving compensable disablement, caused by an accident arising out of and in the course of his employment. His proof must establish a probable, not merely a possible, connection between cause and effect to support his contention that he suffered a compensable accident. Callantine v. Blue Ribbon Linen Supply, 103 Idaho 734, 653 P.2d 455 (1982).

II

Based primarily on the finding that Ms. Moffitt's testimony was more credible than Claimant's testimony, the Commission concludes that Claimant has failed to carry her burden of proving that she suffered the alleged industrial accident and injury on October 7, 1988.

On February 5, 1991, appellant filed a motion for reconsideration. In the motion for reconsideration, appellant pointed to Finding II, wherein the Commission found the photographs of drapes to reveal that the drapes were lightweight. Appellant argued that "those pictures show two sets of drapes, the outside set of drapes being quite heavy." Additionally, appellant stated that the Commission placed too much emphasis on the testimony of Ms. Moffitt, and appellant stated that Ms. Moffitt did not deny that appellant was injured. Appellant contended that the testimony of Ms. Moffitt regarded collateral issues and that a witness cannot be impeached on a collateral matter, citing Mundy v. Johnson, 84 Idaho 438, 373 P.2d 755 (1962). The Commission denied the motion for reconsideration by order dated February 12, 1991.

On February 12, 1991, appellant filed a notice of appeal "from the Findings of Fact, Conclusions of Law, and Order entered in the above entitled action on the 15th day of January, 1991."

ANALYSIS

A. Standard of Review.

On appeal, appellant challenges Finding V of the Industrial Commission, regarding the credibility of appellant's and Ms. Moffitt's testimony. In Dolph v. Hecla Mining Co., 119 Idaho 715, 715, 810 P.2d 249, 249 (1991), citing Vernon v. Omark Indus., 115 Idaho 486, 488, 767 P.2d 1261, 1263 (1989), this Court stated:

The standard of review we are bound to follow is whether, construing the record most favorably to the party which prevailed before the Commission, there is any substantial competent evidence to support the Commission's factual findings.

Specifically, with regard to the issue of credibility, the Court has said:

The commission's conclusions as to the weight and credibility of the evidence will not be disturbed on appeal unless they are clearly erroneous.

Neufeld v. Browning Ferris Industries, 109 Idaho 899, 902, 712 P.2d 600, 603 (1985).

B. Issue On Appeal: Was There Substantial Evidence To Support The Industrial Commission's Finding That Appellant Did Not Sustain The Alleged Back Injury On October 7, 1988?

In Conclusion of Law II, the Commission stated that its conclusion that appellant did not sustain the alleged injury on October 7, 1988 was "[b]ased primarily on the finding that Ms. Moffitt's testimony was more credible than [appellant's] testimony...." The relevant finding, Finding of Fact V, states:

Based upon the Commission's observation of the [appellant] during her testimony at the hearing and due to numerous inaccuracies in [appellant's] testimony, the Commission does not find her testimony to be credible.

(Emphasis added.) Thus, the Commission's credibility finding consists of two bases: (1) its observation of appellant at the hearing, and (2) the numerous inaccuracies in her testimony.

As to the first basis for the credibility finding, the observation basis, this Court has long recognized that the fact finder, in passing upon a witness' credibility, may consider the demeanor of the witness on the stand, including

The manner in which a witness tells his [or her] story; the advantages he [or she] appears to have had for gaining accurate information on the subject, the accuracy and retentiveness of his [or her] memory; his [or her] capacity for consecutive narration of acts and events; his [or her] apparent frankness and intelligence, and numerous other considerations....

State v. Simes, 12 Idaho 310, 316, 85 P. 914, 915 (1906).

In the Commission's findings of fact, conclusions of law, and order, it is stated that "[t]he above-entitled matter came on for hearing before Commissioners Will S. Defenbach and Gerald A. Geddes on September 25, 1990 in Pocatello, Idaho." However, the signature lines at the end of the findings of fact, conclusions of law, and order are provided for "Gerald A. Geddes, Chairman," "Logan E. Lanham, Member," and "Betty H. Richardson, Member." Of the three commissioners, only Commissioners Geddes and Lanham signed the document, and only Mr. Geddes was present for the September 25, 1990 hearing.

The observation basis for the credibility finding, which goes to the demeanor of appellant on the witness stand, requires that the Commission actually be present for the hearing. The demeanor of a witness cannot be judged unless the judge is present to observe it. In this case, only one member of the three-member Commission observed appellant. Yet, in the findings of fact, conclusions of...