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The full case caption appears at the end of this opinion. This is an appeal from the Industrial Commission. We vacate the Commission’s findings offact and conclusions of law and remand for a ruling on Louisiana Pacific Corporation’s motion forreconsideration regarding several of the referee’s decisions. We also direct the Commission to comply.2with I.C. D 72-715. BACKGROUND AND PROCEDURAL HISTORY On February 7, 1990, Joe Simpson was throwing wood off a Louisiana-Pacific Corporation (L-P)production line to the back of a pickup when he felt a popping sensation in his back. Simpsonfinished his shift, but the next day was diagnosed with a lumbosacral muscle strain. Simpson did notimmediately miss any work as a result of this injury or make a claim for temporary disability benefits.He returned to work, but at a lighter duty position. Simpson continued with his light-duty position and received treatment for his muscle strain,but he eventually began to experience difficulty in walking and maintaining his balance in addition topain. Simpson’s doctors believed that he had developed an ideopathic myelopathy that was unrelatedto the February 1990 industrial accident. Due to his continuing back problems, Simpson quit his jobat L-P on March 4, 1991. On January 13, 1993, Simpson filed a complaint with the Industrial Commission seekingdisability benefits based upon the February 1990 accident. Following a hearing and a lengthy periodof post-hearing discovery, the referee issued findings of fact and conclusions of law, which wereadopted by the Commission. The Commission found that Simpson suffered a work-related injurywhile employed by L-P and that he was entitled to disability benefits equal to twenty percent of thewhole person. However, the Commission found Simpson was not totally and permanently disabledunder the odd-lot doctrine despite several pre-existing injuries. L-P filed a motion for reconsideration of several rulings and orders made by the referee thatwere not specifically adopted or rejected by the Commission when it adopted the referee’s findings offact and conclusions of law. The Commission denied L-P’s motion for reconsideration because L-Phad not first adjudicated and received a final order from the Commission on those issues it sought tohave reconsidered. L-P appealed from the Commission’s finding of disability and denial of its motion forreconsideration. Simpson cross-appealed from the Commission’s finding that he was not totally andpermanently disabled. STANDARD OF REVIEW On appeal from the Industrial Commission, this Court exercises free review of theCommission’s legal conclusions. Reiher v. American Fine Foods, 126 Idaho 58, 878 P.2d 757 (1994)..3However, this Court will not disturb the Commission’s factual findings that are supported bysubstantial and competent evidence. Id. DISCUSSION The Commission improperly denied L-P’s motion for reconsideration. I. The Commission improperly denied L-P’s motion for reconsideration. I. The Commission improperly denied L-P’s motion for reconsideration. I. The Commission improperly denied L-P’s motion for reconsideration. Idaho Code D 72-506 provides that orders, decisions, or awards made by a referee becomeorders or decisions of the Commission only when approved or confirmed by the Commission. IdahoAppellate Rule 11 (d) provides for appeal “[f]rom any final decision or order of the IndustrialCommission.” Thus, a referee’s interlocutory orders are not final orders of the Commission and arenot appealable under IAR 11(d). Dehlbom v. State, 129 Idaho 579, 930 P.2d 1021 (1997); Petersonv. Farmore Pump & Irr., 119 Idaho 969, 812 P.2d 276 (1991). In Wheaton v. ISIF, 129 Idaho 538, 928 P.2d 42 (1996), this Court addressed the procedureto obtain an appealable order on matters that were decided by the referee but not addressed in theadopted findings of fact and conclusions of law. In Wheaton, the referee rejected claimant’s requestto reopen the case to present more evidence. The referee then issued findings of fact and conclusionsof law, which were adopted by the Commission. The adopted findings did not mention the denial ofclaimant’s request to reopen. After noting that the referee’s ruling was not an appealable order thisCourt stated: I.C. D 72-718 provides that “within twenty (20) days from the date of filing the[Commission's] decision any party may move for reconsideration or rehearing of thedecision, or the commission may rehear or reconsider its decision on its own initiative.”This provides a procedure by which a party may seek a ruling by the Commission ona matter decided by a referee that was not confirmed or approved by the Commissionin its approval, confirmation, and adoption of the referee’s findings and conclusions.Wheaton, at 540, 928 P.2d at 44. To obtain appealable orders, L-P filed a motion for reconsideration pursuant to our opinionin Wheaton asking the Commission to address several of the referee’s decisions that were notaddressed in the adopted findings of fact and conclusion of law. The Commission refused to addressthe referee’s decisions as requested in the motion for reconsideration because L-P had not firstadjudicated and received a final order from the Commission on those issues it sought to havereconsidered. This decision effectively rendered the referee’s decisions unreviewable because theCommission will not generally hear interlocutory challenges to decisions by the referee and this Courtcannot review decisions that have not been adopted by the Commission. Clearly, the appealability ofa referee’s rulings cannot depend upon the referee’s or Commission’s decision whether to address aparticular ruling in the findings of fact and conclusions of law. Therefore, we vacate the Commission’sdecision in this case and remand for consideration of the issues raised in L-P’s motion forreconsideration as required by Wheaton. II. This Court cannot address the substantiality of the evidence supporting the Commission’sdecision until the Commission has properly considered the matters raised in L-P’s motion for reconsideration. L-P argues that the Commission’s determination regarding the extent of Simpson’s disabilityis not supported by substantial and competent evidence. Simpson argues in his cross-appeal that theCommission’s determination that Simpson is not totally and permanently disabled under the odd-lotdoctrine likewise is unsupported by substantial and competent evidence. However, neither of thesearguments can be evaluated by this Court until the Commission has ruled on the matters raised in L-P’smotion for reconsideration. Several of the matters raised in L-P’s motion concern the proprietyof evidence that was either accepted or rejected by the referee. The substantiality of the evidence inthis case cannot be considered independent of potential issues affecting its propriety. Consequently,we cannot address the substantiality of the evidence supporting the Commission’s decision until theCommission has properly ruled on the matters raised in L-P’s motion for reconsideration. III. Contempt proceedings One of the doctors who had examined Simpson refused to attend a deposition requested bySimpson for which he was under subpoena. Although the doctor was eventually deposed, L-P madea motion to certify facts to the district court for a contempt proceeding under I.C. D 72-715 regardingthe earlier failure to appear. The Commission found that the doctor had willfully refused to obey thesubpoena based partially upon a letter from the doctor to the referee, which stated:I have received your subpoena commanding my appearance at a deposition on June8, 1994. I have no intention whatsoever of appearing. . . . Again, so there is no misunderstanding, I will not be attending the depositionscheduled for June 8, 1994. The Commission, however, did not certify the facts to the district court. The Commission stayed theproceeding for thirty days to allow L-P and the doctor a chance to work out their differences.Idaho Code D 72-715 provides as follows: If any person in proceedings before the commission or a member thereof . . . disobeys.5or resists any lawful order or process . . . the commission . . . shall certify the facts tothe district court . . . and the court, if the evidence warrants, shall punish such personin the same manner and to the same extent as for contempt committed before thecourt . . . . I.C. �72-715 (emphasis supplied). The Industrial Commission as “[a]n administrative agency is acreature of statute, limited to the power and authority granted to it by the Legislature and may notexercise its sub-legislative powers to modify, alter, or enlarge the legislative act which it administers.]Welch v. Del Monte Corp., 128 Idaho 513, 514, 915 P2d 1371, 1372 (1996). Accordingly, theCommission exercises only that discretion granted by the Legislature. The LegislatureZ s use of theword “shall] in section 72-715 denotes a mandatory, not a discretionary, act. See Madison v. J.I.Morgan, Inc. , 115 Idaho 141, 144, 765 P.2d 652, 655 (1988). (“This Court has held on manyoccasions that the word [ shallZ denotes a mandatory, not a discretionary act.] ); see also Taylor v.Brown, 129 Idaho 483, 927 P.2d 873(1996) (“The regulation itself uses the word [ shall,Z clearlyindicating that the fifteen-day payment requirement is . . . mandatory . . .] ); Gilbert v. Moore, 108Idaho 165, 169, 697 P.2d 1179, 1183 (1985) (“The word shall , when used in a statute, is mandatory.] ). Accordingly, once the Commission determined that its order had been disobeyed, the Commission was required to certify the facts to the district court for contempt proceedings in this case. The district court then has the discretion to determine whether a contempt sanction is warranted under the facts as certified by the Commission. As part of the remand in this case, the Commission is directed to comply with I.C. D 72-715.IV. L-P’s due process rights were not violated. L-P argues that its due process rights have been violated because the Commission failed toadopt more specific rules regarding the procedure for appointing referees. Although the Commissionhas adopted Judicial Rules of Practice and Procedure, L-P argues that the rules do not sufficientlycover the methods for appointing referees. L-P suggests that the alleged lack of rules and regulationsgoverning the appointment of referees results in arbitrary and capricious behavior for which there isno effective remedy. As evidence, L-P points to the decisions of the referees in this case. We do not find L-P’s arguments to be persuasive. L-P has not cited any case establishing a dueprocess right to a particular referee or even a referee appointed in a particular manner nor has itshown any possible prejudice from the manner in which the referee was appointed in this case. Onceappointed, referees are governed by the Judicial Rules of Practice and Procedure established by the.Commission. The duty of the referees not to act in an arbitrary and capricious manner is establishedby law independent of any regulations governing their appointment and is subject to enforcement byappeal to this Court. V. Simpson’s attorney fees Anticipating a potential issue on cross-appeal, L-P argued that the Commission’s failure toaward Simpson attorney fees was not reviewable because the Commission declined to address theissue, which it found to have been abandoned. Simpson never raised this issue in his cross-appeal andI.A.R. 4 provides that only an aggrieved party may appeal. Therefore, this issue is not properly beforethis Court. CONCLUSION The Commission improperly dismissed L-P’s motion for reconsideration. Therefore, wevacate the Commission’s decision. The case is remanded to the Commission to address, on themerits, L-PZ s motion for reconsideration. The Commission is also required to comply with I.C. D 72-715, as requested by the appellant. Costs to appellant, L-P. No attorney fees are awarded on appeal.
Simpson v. Louisiana-Pacific Corp. Supreme Court of the State of Idaho No. 24426 JOE SIMPSON, Claimant-Respondent-Cross Appellant, v. LOUISIANA-PACIFIC CORP., Defendant-Appellant-Cross Respondent, and STATE OF IDAHO SPECIAL INDEMNITY FUND Defendant-Respondent-Cross Respondent. Filed: April 20, 2000 Appeal From: Industrial Commission Counsel for Appellant Louisiana-Pacific Corp.: Starr Kelso Counsel for Appellees: Michael J. Verbillis and Carol B. Groover Before: Chief Justice TROUT and Justices SILAK, SCHROEDER, WALKERS, and KIDWELL
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