HORTON, Justice.
Dallas L. Clark appeals from an order of the Industrial Commission of the State of Idaho (Commission) denying her worker's compensation benefits because she failed to prove that an industrial accident occurred. We affirm.
Clark started working for Shari's Management Corporation (Shari's) in September 2008 as an experienced server. Clark testified that on November 24, 2008, during a graveyard shift, she suffered a herniated disc in her back while lifting a heavy silverware tray onto a high shelf. She first sought medical treatment from a chiropractor, Dr. Justin Crook, at Orchard Naturopathic Center on December 11, 2008. Dr. Crook diagnosed Clark with sciatica and attributed her injury to lifting and twisting at work. On December 15, about three weeks after her injury, Clark informed Shari's that she had been injured at work.
On December 16, 2008, after the chiropractic treatment proved to be ineffective in reducing her pain, Clark sought medical care at the Community Care and Injury Center (Community Care) in Idaho Falls. There, she was again diagnosed with sciatica and prescribed medication to manage the pain. On December 19, Clark returned to Community Care because of her pain and was referred to the emergency room at Eastern Idaho Regional Medical Center (EIRMC). EIRMC records reflect that Clark was experiencing back pain with an "onset of several days ago." Clark was diagnosed with lumbar strain and she was prescribed medication for the pain.
Dr. Walker prescribed medication for pain and ordered an MRI. On December 30, Clark underwent the MRI, which revealed a large left paracentral disc extrusion at L5-S1 which impacted the S1 nerve root. Due to Clark's desire to avoid surgery, Dr. Walker advised her to undergo a series of epidural steroid injections and engage in physical therapy. Clark did not complete physical therapy because the injections succeeded in reducing her pain.
In March 2009, Clark returned to Dr. Walker because her pain had returned. She received another injection, and Dr. Walker again recommended physical therapy. On March 19, Clark completed her first appointment of physical therapy with Stephanie Liddle. Liddle's treatment notes recorded that Clark:
Clark participated in a few more sessions of physical therapy but then returned to Dr. Walker on April 7 because her pain persisted. Dr. Walker recommended consultation with a surgeon. Clark responded that she was leaving town and would "check with her insurance" before she proceeded further.
On April 22, 2009, Clark consulted Dr. Stephen Marano, a neurosurgeon, and James Cook, his physician's assistant, to discuss the possibility of surgery. Cook noted that Clark:
On April 24, 2009, Zach Dummermuth, the general manager for Shari's, completed Clark's First Report of Injury (FROI). The FROI states that on November 24, 2008, Clark experienced an ache in her low back while she was "standing" and "making salad" and cites December 15, 2008, as the date that Clark notified Shari's of the accident. The FROI was received by the surety on April 28, 2009, and claims investigator Bradley Armstrong interviewed Clark on May 6. In her statement to Armstrong regarding the circumstances surrounding the accident, she attributed her injury to "standing wrong" at the salad bar and claimed her injury left her unable to lift a silverware tub into the water station.
On May 19, 2009, Armstrong sent a letter to Clark denying her claim because "there was no accident associated with" her injury. Clark decided to proceed with surgery and thereafter suffered complications from the surgery. On November 3, 2009, Clark filed a worker's compensation claim with the Industrial Commission. Clark's attorney requested an Independent Medical Evaluation (IME) from Dr. Benjamin Blair in a letter dated May 3, 2011. Dr. Blair replied in writing, stating that he believed Clark's injury was based on an accident that occurred at work because her story was convincing in light of the fact that she had no history of back pain. A separate IME was completed by Dr. Michael Hajjar at the request of the surety. Dr. Hajjar opined that Clark's medical records were inadequate to establish a causal connection with an industrial accident and later noted that Clark's delay in obtaining medical treatment after the alleged accident is evidence that the symptoms did not occur as a result of an industrial accident.
Following a hearing, on March 13, 2012, the Referee issued her Findings of Fact, Conclusions of Law and Recommendation (the Recommendation) which concluded that
In reviewing a decision of the Commission, this Court exercises free review over the Commission's legal conclusions. Kessler ex. rel. Kessler v. Payette Cnty., 129 Idaho 855, 859, 934 P.2d 28, 32 (1997). 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." Jensen v. City of Pocatello, 135 Idaho 406, 413, 18 P.3d 211, 218 (2000) (citing Murray-Donahue v. Nat'l Car Rental Licensee Ass'n, 127 Idaho 337, 340, 900 P.2d 1348, 1351 (1995)). However, we limit our review to determining whether the Commission correctly denied benefits after it applied the law to the relevant facts. Id. The Commission's findings of fact will not be disturbed so long as they are supported by substantial and competent evidence. I.C. § 72-732; Neihart v. Universal Joint Auto Parts, Inc., 141 Idaho 801, 803, 118 P.3d 133, 135 (2005). Substantial and competent evidence is "relevant evidence which a reasonable mind might accept to support a conclusion." Matter of Wilson, 128 Idaho 161, 164, 911 P.2d 754, 757 (1996). The Commission's findings regarding the weight and credibility of the evidence will not be disturbed so long as they are not clearly erroneous. Zapata v. J.R. Simplot Co., 132 Idaho 513, 515, 975 P.2d 1178, 1180 (1999). This Court does not re-weigh the evidence or consider whether it would have reached a different conclusion from the evidence presented. Neihart, 141 Idaho at 803, 118 P.3d at 135. Rather, we must view all facts and inferences in a light most favorable to the party who prevailed before the Commission. Kessler, 129 Idaho at 859, 934 P.2d at 32.
An employee is entitled to compensation under the Worker's Compensation Act when the employee suffers an injury that was caused by an accident "arising out of and in the course of any employment." Dinius v. Loving Care and More, Inc., 133 Idaho 572, 574, 990 P.2d 738, 740 (1999). Idaho Code § 72-102(18) provides the following definitions:
"The words `out of' have been held to refer to the origin and cause of the accident and the words `in the course of' refer to the time, place, and the circumstances under which the accident occurred." Spivey v. Novartis Seed, Inc., 137 Idaho 29, 33, 43 P.3d 788, 792 (2002). "A claimant has the burden of proving a probable, not merely a possible, causal connection between the employment and the injury...." 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)). However, whether an injury arose out of and in the course of employment is ultimately a question of fact to be determined
Clark asserts that the Referee and the Commission erroneously required "her to prove `unusual exertion or mishap as a cause' of her injury." Certainly, "an `accident' does not require a slip or fall, external trauma to the worker's body, or unusual exertion." Konvalinka v. Bonneville Cnty., 140 Idaho 477, 479, 95 P.3d 628, 630 (2004). Tellingly, however, Clark provides no citation to the record in support of this claim of legal error. We have carefully reviewed the Recommendation and the Commission's Order Denying Reconsideration and Rehearing. The language that Clark purports to quote is nowhere to be found in either document. We find this claim of legal error to be without merit.
Clark also asserts that the standard that the Commission "should have applied provides that the injury in Claimant's case is the `unexpected, undesigned, unlooked for mishap' or `accident.'" In this regard, Clark is simply wrong. As we noted in Konvalinka, "`[a]ccident' and `injury' are certainly interrelated definitionally. An accident must cause an injury, and an injury must be caused by an accident. The terms are not synonymous, however." Id. at 480, 95 P.3d at 631 (citations omitted). The standard that Clark asserts the Commission should have applied would eliminate the causal connection between an injury and an accident required by I.C. § 72-102 and redefine "accident" as "injury." This Court is required to "give effect to all the words and provisions of the statute so that none will be void, superfluous, or redundant." State v. Schulz, 151 Idaho 863, 866, 264 P.3d 970, 973 (2011). For that reason, we are unable to find that the Commission erred by failing to apply the standard that Clark proposes.
Clark "contends that the evidence is clear, substantial, and competent that she suffered a compensable injury to her back at work waitressing on or about November 24, 2008." In Neihart, we noted that this "is not the test applied by this Court on appeals from the Industrial Commission." 141 Idaho at 803, 118 P.3d at 135. Rather, the inquiry is "`whether substantial and competent evidence supports the Commission's findings.'" Id. (quoting Luttrell v. Clearwater Cnty. Sheriff's Office, 140 Idaho 581, 583, 97 P.3d 448, 450 (2004)).
Clark's briefing devotes substantial effort to describing factual errors contained in the Recommendation. We agree that the Referee made several obvious mistakes in her factual findings. If the Referee were the ultimate decision-maker, these factual errors might be of significance to this appeal. However, it is the Commission, not the Referee, which made the final decision as to Clark's claim. The Commission acknowledged the Referee's errors, but found the mistakes to be "harmless error, in that they do not form the basis of the Commission's decision against Claimant." The Commission explained that its decision to deny Clark's claim was "because she failed to prove that an industrial accident occurred" and that it reached this conclusion because "the information contained in [Clark's] medical records [was] more credible than [Clark's] later statements and testimony." The Commission found that Clark's later accounts of the claimed accident "are so contradictory as to be unreliable," explaining:
Recently, in Harris v. Indep. Sch. Dist. No. 1, 154 Idaho 917, 303 P.3d 604 (2013), we discussed our previous decisions relating to the scope of the Commission's authority to make credibility decisions:
Id. at 925-26, 303 P.3d at 612-13.
In this case, the Commission recognized our holding in Stevens-McAtee and explicitly identified the standard that it applied in making its credibility determination: "we look for substantial consistency supported by the other evidence in the record." This standard is the appropriate standard for evaluating substantive credibility.
The Commission explained why it found Clark's statements were not substantially consistent:
The Commission then explored the differences between Clark's accounts of her injury contained in the early medical records and her testimony at deposition and hearing:
The facts identified by the Commission appear in the record. Thus, we hold that there is substantial evidence supporting the Commission's determination that Clark's testimony at deposition and hearing lacked substantive credibility.
Clark relies heavily upon our decision in Hazen v. Gen. Store, 111 Idaho 972, 729 P.2d 1035 (1986), in support of her claim that the Commission's decision should be overturned. This reliance is misplaced. In Hazen, this Court affirmed the Commission's denial of a worker's compensation claim, finding that the claimant's disk herniation was the result of the "aging process" and "not the result of employment." Id. at 973, 729 P.2d at 1036. There, although Hazen had discussed her injury with her employer, she did not attribute it to an accident at work and did not file a Notice of Injury with the Industrial Commission. Id. It was only after Hazen underwent
Having carefully reviewed the record before us, we are struck by the similarity of the facts in this case to those presented in Hazen. As with the claimant in Hazen, Clark discussed her injury with her employer but did not attribute the injury to a specific accident at work until after discovering that she required surgery. Clark told medical providers that she did not know what the cause of her pain was, attributing it to a variety of reasons including nothing at all ("out of the blue"), "standing funny," her weight, working many years as a waitress without taking care of her body, and work in general. Although Clark indicated her injury might be work-related, she never suggested that her injury was due to an accident at work until she filed a worker's compensation claim after discovering her need for surgery. As we did in Hazen, we find that substantial evidence supports the Commission's finding that the Claimant's injury was not caused by an industrial accident. We therefore affirm.
Both Clark and Shari's request attorney fees and costs. The entirety of Clark's discussion of attorney fees on appeal is as follows: "Attorney's fees are requested per I.C. § 72-313." In order to recover an award of attorney fees on appeal, a party must support the request both by citation to legal authority and argument. "The mere citation to a code provision, without explaining how the cited code section provides for an award in the case or providing argument of how the section applies to the circumstances in the case, is insufficient for an award of attorney fees on appeal." Athay v. Rich Cnty., 153 Idaho 815, 827, 291 P.3d 1014, 1026 (2012) (citing Clair v. Clair, 153 Idaho 278, 291, 281 P.3d 115, 128 (2012)). In addition to these requirements, the party must actually prevail in the appeal. Friends of Farm to Mkt. v. Valley Cnty., 137 Idaho 192, 201, 46 P.3d 9, 18 (2002).
In this case, Clark has managed to achieve a "dubious trifecta" similar to that which we observed in City of Meridian v. Petra Inc., 154 Idaho 425, 450, 299 P.3d 232, 257 (2013). She has not prevailed. She has directed us to a code provision unrelated to awards of attorney fees,
Respondents' request for attorney fees on appeal fails in only one respect. Although Respondents have prevailed and advanced argument, the statute upon which they rely, I.C. § 12-121, does not apply to this appeal because worker's compensation cases are not civil actions. Id. at 737, 215 P.3d at 457 (citing Swanson v. Kraft, 116 Idaho 315, 322, 775 P.2d 629, 636 (1989)). Therefore, we deny the request for attorney
We affirm the Commission's denial of Clark's worker's compensation claim and award costs, but not attorney fees, to Respondents.
Chief Justice BURDICK and Justices EISMANN and W. JONES concur.
J. JONES, J., specially concurring.
I concur in the Court's opinion because, despite the Referee having made several obvious mistakes in her factual findings as mentioned by the Court, the Commission corrected those mistakes in its Order Denying Reconsideration and Rehearing and the corrected decision is supported by substantial and competent evidence. I write this special concurrence because several recent cases indicate a failure on the part of the Commission to carefully review some of the Referee's proposed findings and recommendations and correct inappropriate findings that are conspicuous from the record. See Mazzone v. Texas Roadhouse, Inc., 154 Idaho 750, 758-60, 302 P.3d 718, 726-28 (2013); Henry v. Dep't of Correction, 154 Idaho 143, 149-56, 295 P.3d 528, 534-41 (2013) (J. Jones, J., dissenting). In this case, the Commission merely approved, confirmed, and adopted the Referee's proposed findings of fact and conclusions of law as its own, without apparently giving the document a critical review.
Had the Commission carefully reviewed the Referee's findings before adopting them, it would have discovered:
The Commission is charged with the responsibility of making findings of fact and conclusions of law and a final order. Simply rubberstamping a recommended decision that contains obvious errors or inappropriate conclusions does not fulfill that responsibility.
Clark's statements and medical records show that Clark received no medical treatment prior to the alleged accident. Therefore, there is no way that she would have known about this advice prior to the alleged accident.
