IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 53061
NELLIE M. WHITELEY, )
)
Claimant-Appellant, )
)
Twin Falls, June 2026 Term
v. )
)
Opinion Filed: September 1, 2026
LIFE CARE CENTERS OF AMERICA, )
Employer; and OLD REPUBLIC )
Melanie Gagnepain, Clerk
INSURANCE, Surety, )
)
Respondents. )
_______________________________________ )
Appeal from the Idaho Industrial Commission.
The order of the Industrial Commission is set aside.
Baker & Harris, Blackfoot, for Appellant. Jonathan W. Harris argued.
Bowen & Bailey, Boise, for Respondents. H. Chad Walker argued.
BRODY, Justice.
This appeal involves a worker’s compensation claim for permanent disability in excess of impairment. Nellie M. Whiteley fell in her employer’s parking lot while working as a certified nurse assistant, fracturing her left leg in two places and tearing her lower ankle tendons from the bone. In this appeal of the Idaho Industrial Commission’s order awarding her worker’s compensation benefits for the injury, we must decide whether the Commission erred in assigning Ms. Whiteley a 20% permanent partial disability rating instead of the 34% she proposed.
To prove her proposal, Ms. Whiteley compiled an appreciable body of evidence detailing her post‑injury physical limitations and the resulting constraints on her future employment prospects. This evidence was uncontested by her employer and its surety. Even so, the Commission was unpersuaded. It characterized Ms. Whiteley’s proposed 34% rating as “overinflated” and reduced it to 20% based on its skepticism of her evidence and its assessment that she was unlikely to seek alternative employment. Because the Commission’s rationale for discounting Ms.
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Whiteley’s evidence was inconsistent with applicable legal standards, we set aside the Commission’s order. The record clearly supports the 34% rating.
I. FACTUAL AND PROCEDURAL BACKGROUND
Ms. Whiteley grew up in Rupert, Idaho and graduated from Minico High School in 1986. She worked for Simplot before serving four years on active duty in the Army, followed by six years in the National Guard Reserves. In the Army, Ms. Whiteley trained in military policing. After her military service, Ms. Whiteley completed Police Officer Standards Training at the College of Southern Idaho and concurrently worked as a dispatcher with the Cassia County Sherriff’s Office. She later moved to Las Vegas, Nevada, where she worked as a security guard for twelve years. Ms. Whiteley returned to Idaho in 2005 and worked intermittently in various part‑time positions while raising her children. In 2018, she completed the certified nurse assistant (“CNA”) program at the College of Southern Idaho and began working for Life Care Centers of America’s Bridgeview Estates (“Bridgeview”), a skilled nursing facility in Twin Falls, Idaho.
In November 2019, Ms. Whiteley slipped on ice and fell in Bridgeview’s parking lot. The fall fractured her left tibia and fibula and tore the lower ankle tendons from the bone. At the time, Ms. Whiteley worked full‑time for Bridgeview as a CNA, earning $13 per hour. She testified that in her role as a CNA, she typically walked seven to eight miles per shift and regularly lifted at least seventy‑five pounds, and occasionally more when assisting a patient after “an extraordinary fall.”
In December 2019, Dr. Mark Wright performed ankle surgery on Ms. Whiteley. The following month, she returned to Bridgeview as a receptionist because she relied on a wheelchair and, later, a scooter for mobility. Dr. Wright performed an additional surgery a year later due to Ms. Whiteley’s ongoing pain. Specifically, Dr. Wright “removed one metal plate, replaced another, and performed a donor bone graft.” Despite the second surgery, Ms. Whiteley continued to experience pain and swelling because “[t]he fibula had not knitted,” likely “due to the use of a donor-supplied bone graft.” Dr. Wright performed a third surgery in late 2021, “in which [Ms. Whiteley’s] own tissues were used to graft the fibula so that it might finally fuse and fully heal.” Nonetheless, Ms. Whiteley continued to experience pain.
In December 2021, Ms. Whiteley assumed her current role with Bridgeview as activities director, earning $18.03 per hour. Initially, “[s]he work[ed] [forty] hours a week, plus a little overtime doing CNA work when needed.” Ms. Whiteley maintains that she cannot work as a CNA beyond occasional overtime because persistent “pain and swelling in the left leg and ankle prevent
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her from doing more work than that.” In any event, at the time a Commission Referee issued his Findings of Fact, Conclusions of Law, and Recommendation, Ms. Whiteley had “not worked a [four]-hour CNA shift for a year or more.”
As of April 27, 2022—Ms. Whiteley’s last recorded visit with Dr. Wright—the bones in her lower left leg had finally healed. Moreover, Ms. Whiteley’s physical therapist reported that she “had progressed from 0% to 80% function.” Dr. Wright recorded the following impression from that visit:
I am going to keep her back to full duty without restriction. I think she does fine
with [sic] the activities director. As long as they can leave her in that job, she will
do well. I will see her back on an as-needed basis. If she has to go back and be more
physical, it may be problematic for her. We spoke about doing restriction. She is
really not interested in that. She thinks she can monitor herself and do what she
needs to do.
In a post-hearing deposition, Dr. Wright explained that he is generally reluctant to prescribe physical restrictions because they may limit the patient’s ability to gain long-term employment:
Q. Okay. And that’s one of the primary reasons we are here today is I
need to just get a little more meat on the bone as far as that’s concerned.
So in your record, you said, “We spoke about doing restriction. She’s not
really interested in that. She thinks she can monitor herself and do what she needs
to do.”
[Dr. Wright]. Correct.
Q. So basically you had offered to give some restrictions, but she didn’t
feel like she needed you to do that because she was already in a job that worked for
her?
[Dr. Wright]. Well, I think that’s really more of an understanding of work
comp and the restrictive process and the lack -- or the inability to be employed if
you have long-term, chronic restrictions.
That’s more of a philosophical thing that I -- when I talk to people about --in Idaho you’re in an at-will work state. And as such, if you get restrictions, all it
does is limit your ability to work in the future at a job that you may be able to do
based on your issues. It doesn’t really help you a lot beyond that.
Q. That’s a potential consequence. However, in a work comp case like
this, the compensation that she can claim is based on work restrictions, so we try to
define that as clearly as we can.
[Ms. Whiteley] testified at hearing that with the activities director job,
there’s some standing and walking, but it was at her pace and that she could sit
when she needed to sit. Do you believe -- do you feel like that’s responsible?
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[Dr. Wright]. It depends on -- I didn’t see her back and go over anything
beyond this, so I have to leave the record intact. I did not have a conversation with
her specifically about that after this meeting, is my understanding.
Q. Okay.
[Dr. Wright]. I can’t conjecture that. That wouldn’t be fair.
Q. . . . [A]t the time, it seemed like you had the feeling that, yeah, she
can do this job and she can monitor and manage herself, and if she feels like that
she can work in this job at the pace that she needs to, sitting and standing as she
needs to, then that would be the only work restriction that you would give.
[Dr. Wright]. Yeah. I mean, I look at it based on the current job that they
are doing; so maybe, again a philosophical thing.
But if she was working on a road construction crew and had to run a shovel
all day, I don’t think she could do that.
Ms. Whiteley continues to report difficulty “walking, standing, getting up and down from the floor, stooping, and bending.” These limitations have caused her to rule out CNA or security work. Ms. Whiteley further reported that she largely refrains from outdoor recreational activities she once enjoyed because her injury affects her “gait and balance.”
Bridgeview’s independent medical expert, orthopedic surgeon Dr. James Bailey, examined Ms. Whiteley and reviewed her medical records in June 2022. He observed Ms. Whiteley’s poor balance, range-of-motion loss “with extended knee dorsiflexion and subtalar/forefoot inversion and eversion” and “decreased sensation in a stocking pattern of the foot and ankle with tenderness at the ends of the tibia and fibula.” Dr. Bailey concluded that Ms. Whiteley’s “left ankle fracture was at maximum medical improvement (MMI) and that she would be rated with a 4% whole person” permanent partial impairment (“PPI”).
Later, in December 2022, physical therapist Brendan Bagley, at the request of Ms. Whiteley’s lawyer, conducted a functional capacity assessment (“FCA”) of Ms. Whiteley. Bagley’s two-day FCA involved, among other things, walking in a parking lot, going up and down stairs, carrying, lifting, and typing. He concluded that Ms. Whiteley was capable of work at the “light” level under the Dictionary of Occupational Titles. Bagley further concluded that Ms. Whiteley could occasionally “perform some lifting up to 30 pounds,” which is classified in the “medium” category, “but not on a full-time basis.” In his post-hearing deposition, Dr. Wright “declined to comment on the limitations represented” in the FCA. By contrast, Dr. Bailey, Bridgeview’s independent medical expert, stated he agreed with the FCA.
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Ms. Whiteley was next evaluated by vocational expert Kent Granat in January 2023 at the request of her attorney. Mr. Granat interviewed Ms. Whiteley and reviewed her medical records, the medical opinions in her case, relevant “job duties and their physical demand according to the Dictionary of Occupational Titles,” conducted a “transferrable skills assessment,” and “a labor market access loss assessment.” The referee described Mr. Granat’s conclusions as follows:
A) Ability to return to jobs held prior [to the] -70% loss due to only 3 of 10 jobs
previously performed remaining available. He knew from experience the potato
grader and general dispatcher jobs were jobs available in her local economy.
B) Transferable skills to jobs similar to those held in the past - 55% loss. An index
showed 155 jobs available would be reduced to the remaining 58 jobs in the light
and sedentary categories.
C) Career change considering all jobs in the semi-skilled workforce - 77% loss with
limitation now to sedentary, light, semi-skilled jobs that honor standing, walking
and postural restrictions.
Mr. Granat also considered wage loss, concluding that, as a general matter, “a CNA job paid 2% more than a recreational activities director position.” In other words, Ms. Whiteley’s “wage loss for disability purposes was 0%.” Apart from wage loss, Mr. Granat determined that Ms. Whiteley’s injury resulted in a 68% loss in opportunities in the labor market. Mr. Granat characterized Ms. Whiteley’s limitation to work involving lifting no more than thirty pounds as the key “barrier . . . to future employment.” That limitation rules out many of the job opportunities available in Jerome, where Ms. Whiteley lives, and its environs. By averaging the loss in labor market access with the loss in wage‑earning capacity, he determined that Ms. Whiteley’s permanent partial disability (“PPD”) rating is 34%.
Ms. Whiteley filed a worker’s compensation complaint with the Commission in March 2023. A hearing was held in January 2024, at which Ms. Whiteley and her husband, Kyle Whiteley, gave testimony and exhibits were entered. The parties took post-hearing depositions of Dr. Wright, Dr. Bailey, and Mr. Granat. The parties contested the proper PPD award and briefed that issue to a Commission Referee. The Referee entered his Findings of Fact, Conclusions of Law, and Recommendation to the Commission in May 2025.
The Referee found that a 4% PPI rating was uncontested. However, the parties disagreed on the ultimate PPD determination. Ms. Whiteley sought a 34% PPD rating, while Bridgeview sought a 17% rating. Addressing the nonmedical factors, the Referee noted that Ms. Whiteley “based her permanent disability argument on the hypothetical future loss of the activities-director
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job.” He appeared to fault Ms. Whiteley for relying on “PT Bagley for physical capacities information as if the FCA constituted permanent medical restrictions of a treating physician and not merely a snapshot of [her] limitations on that day.” While Dr. Bailey, Bridgeview’s expert, acknowledged the limitations expressed in the FCA, in the Referee’s view, Dr. Bailey did not “opine [them] to be restrictions” in the technical sense. Instead, Dr. Bailey appeared to view Ms. Whiteley’s “current job as activities director to satisfy an implied restriction of no more than [four] hours of standing and walking.”
The Referee further faulted Mr. Granat’s PPD rating for relying on PT Bagley’s FCA rather than formal medical restrictions. He took the view that “vocational opinions are not afforded as much weight by the Commission because they are not vetted by a medical provider who understands the particular injury and the particular worker’s abilities over time.” Moreover, FCAs are only one of the many factors a physician may consider when determining the appropriate medical restrictions for a particular patient and only offer insight about “a person’s physical capacitates on a particular day.”
At bottom, the Referee viewed Ms. Whiteley’s physical limitations as “uncertain”—despite the FCA, vocational analysis, and testimony of Bridgeview’s independent medical expert— because Dr. Wright refused “to issue restrictions or a PPI rating” upon concluding that Ms. Whiteley had reached MMI. As the Referee saw things, Dr. Wright would only acknowledge that Ms. Whiteley “could work as activities director but perhaps not as a CNA because of possible additional lifting,” undermining her proposed 34% PPD rating.
Ultimately, the Referee concluded that, because there was no “substantial evidence” showing that Ms. Whiteley was likely to lose her job with Bridgeview as activities director and because Dr. Wright refused to prescribe “specific restrictions,” Mr. Granat’s vocational study produced an “overinflated” PPD score (34%). Nonetheless, the Referee agreed that “some permanent disability is reasonable and likely . . . in order to preserve her chances in the job market should she re-enter it.” In his view, a 20% PPD rating, inclusive of 4% PPI, was more appropriate.
The Commission agreed with the Referee and adopted his recommendation. One
Commissioner, Commissioner White, dissented because he disagreed with the Commission’s 20% PPD rating. He raised two objections to the majority’s reasoning. First, as Commissioner White viewed the record, “every medical opinion in this case directly or indirectly supports a finding that [Ms. Whiteley] cannot return to work as a CNA and has lost the capacity to perform medium and
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heavy level work.” Second, Commissioner White appeared to object to the contention that a 34% PPD score is “overinflated” given that Ms. Whiteley has “lost access” to job opportunities in fields in which she has experience, namely, CNA and law enforcement work. He would not have relied on the fact that Ms. Whiteley presently holds the activities director position in assessing her reduced access to the job market, as the majority did. Ms. Whiteley timely appealed to this Court. See I.A.R. 14(b).
II. STANDARDS OF REVIEW
The Idaho Constitution confers on the Idaho Supreme Court “jurisdiction to review, upon appeal . . . any order” of the Commission. Idaho Const. art. V, § 9; see also I.C. § 72-724. However, appellate review in this context is limited to questions of law. Idaho Const. art. V, § 9. This Court may “set aside” an erroneous order of the Commission on any of four grounds:
(1) The commission’s findings of fact are not based on any substantial competent
evidence;
(2) The commission has acted without jurisdiction or in excess of its powers;
(3) The findings of fact, order or award were procured by fraud;
(4) The findings of fact do not as a matter of law support the order or award. I.C. § 72-732.
With respect to questions of fact, “the members of the [Commission] are the triers of the facts—the final judges of the weight and credibility to be given the opinion of experts.” Stralovich v. Sunshine Mining Co., 68 Idaho 524, 534, 201 P.2d 106, 112 (1948) (citation omitted). This deference limits this Court’s review to confirming that the Commission’s findings are grounded in “substantial and competent evidence.” Jensen v. City of Pocatello, 135 Idaho 406, 409, 18 P.3d 211, 214 (2000) (citing Ogden v. Thompson, 128 Idaho 87, 88, 910 P.2d 759, 760 (1996)). “Substantial and competent evidence is relevant evidence that a reasonable mind might accept to support a conclusion.” Uhl v. Ballard Med. Prods., Inc., 138 Idaho 653, 657, 67 P.3d 1265, 1269 (2003) (citing Hughen v. Highland Ests., 137 Idaho 349, 48 P.3d 1238 (2002)).
By contrast, and consistent with its constitutional mandate, this Court freely reviews the Commission’s legal conclusions. McNulty v. Sinclair Oil Corp., 152 Idaho 582, 585, 272 P.3d 554, 557 (2012) (citing Ewins v. Allied Sec., 138 Idaho 343, 346, 63 P.3d 469, 472 (2003)).
III. ANALYSIS
A. The Commission erred by applying the wrong legal standards to its review of the
evidence.
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Ms. Whiteley’s challenge to the Commission’s treatment of the evidence rests on three distinct arguments. First, she asserts that the Commission “disregarded credible unrefuted testimony” and other evidence in reaching its 20% PPD determination. Second, she contends that the Commission erred by discounting the findings of her FCA based on Dr. Wright’s refusal to expressly endorse them, effectively heightening her burden of proof to demonstrate disability in excess of impairment. Third, she argues that, even apart from those errors, the Commission’s adoption of a 20% PPD rating lacks the support of substantial and competent evidence because it rests on speculation that her “restrictions are not permanent” or that her “condition might improve over time.”
Bridgeview responds that Ms. Whiteley’s arguments merely invite this Court to “reweigh the evidence” and substitute its own judgment for the Commission’s. Bridgeview maintains that the Commission, as the finder of fact in worker’s compensation proceedings, was entitled to reject the FCA and to conclude that Ms. Whiteley’s disability is less than the 34% she claimed.
We do not see Ms. Whiteley’s claims of error on appeal as an invitation to simply reweigh the evidence. Rather, the Commission’s order reflects at least two erroneous applications of the legal standards relevant to its evaluation of the evidence—first, the Commission supplied its own contrary factual conclusions without evidentiary support, and second, substantial and competent evidence does not support its decision to assign a 20% PPD rating.
Idaho’s worker’s compensation law aims to provide “sure and certain relief for injured [workers].” I.C. § 72-201. Wage‑loss and disability benefits reflect the legislature’s intent to furnish, in an “efficient, dignified, and certain” manner, the income support “an enlightened community would feel obliged to provide,” not to award tort‑type damages. Arthur Larson et al., Larson’s Workers’ Compensation Law § 1.03 (Matthew Bender & Co., rev. ed. 2024). Compensation for disability therefore operates within a distinct statutory framework.
Under Idaho Code section 72‑102(10), a “disability” is “a decrease in wage‑earning capacity due to injury or occupational disease.” I.C. § 72-102(10). Determining compensation for a “disability” requires evaluating “the injured employee’s present and probable future ability to engage in gainful activity” in light of “the medical factor of permanent impairment” and “pertinent nonmedical factors.” I.C. § 72-425. The nonmedical factors are considerably broad:
Matters to be considered. In determining percentages of permanent disabilities,
account shall be taken of the nature of the physical disablement, the disfigurement
if of a kind likely to limit the employee in procuring or holding employment, the
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cumulative effect of multiple injuries, the occupation of the employee, and his age
at the time of accident causing the injury, or manifestation of the occupational
disease, consideration being given to the diminished ability of the afflicted
employee to compete in an open labor market within a reasonable geographical area
considering all the personal and economic circumstances of the employee, and
other factors as the commission may deem relevant, provided that when a scheduled
or unscheduled income benefit is paid or payable for the permanent partial or total
loss or loss of use of a member or organ of the body no additional benefit shall be
payable for disfigurement.
I.C. § 72-430(1).
A worker’s compensation claimant bears “the burden of proving, by a preponderance of the evidence, all the facts essential to recovery.” Evans v. Hara’s Inc., 123 Idaho 473, 479, 849 P.2d 934, 940 (1993) (citation omitted). That burden is the same where, as here, a claimant seeks disability in excess of impairment. McCabe v. Jo Ann Stores, Inc., 145 Idaho 91, 96, 175 P.3d 780, 785 (2007) (citing Bennett v. Clark Hereford Ranch, 106 Idaho 438, 440, 680 P.2d 539, 541 (1984)). A claimant, however, need not present any particular type of evidence to satisfy their burden to prove disability in excess of impairment. Baldner v. Bennett’s, Inc., 103 Idaho 458, 461– 62, 649 P.2d 1214, 1217–18 (1982).
In evaluating the evidence, the Commission must confine its factfinding to the record and may not substitute its own “specialized knowledge” for evidence actually presented. Mazzone v. Tex. Roadhouse, Inc., 154 Idaho 750, 760–61, 302 P.3d 718, 728–29 (2013) (citation modified). Nor may it reject “the positive, uncontradicted testimony of a credible witness, unless his testimony is inherently improbable, or rendered so by facts and circumstances disclosed at the hearing.” Pierstorff v. Gray’s Auto Shop, 58 Idaho 438, 447, 74 P.2d 171, 175 (1937) (citation omitted). The same principle applies to uncontroverted documentary or expert evidence. See Jordan v. Walmart Assocs., Inc., 173 Idaho 115, 121, 539 P.3d 593, 599 (2023) (holding uncontested evidence showing claimant suffered stroke while working necessitated conclusion that he suffered a compensable industrial accident). The crux of Ms. Whiteley’s first claim of error is that the Commission misapplied these principles in evaluating the evidence she offered to support a 34% PPD rating.
1. The Commission impermissibly refused to accept unrefuted evidence in the record.
Ms. Whiteley introduced extensive evidence demonstrating that her injury restricts her to the activities director position or similar light‑duty work. She offered three expert opinions addressing her physical limitations and the resulting loss of labor market access. Together, these
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opinions formed the basis of the 34% PPD rating she proposed. Bridgeview, by contrast, offered only the testimony of a physician, Dr. Bailey, who conducted an IME. That physician largely agreed with Ms. Whiteley’s treating physician and did not contradict the FCA or the vocational analysis. Bridgeview supplied no expert analysis disputing her job‑market limitations and did not explain how it arrived at a 17% PPD rating as the more accurate measure of Ms. Whiteley’s disability.
Bagley’s FCA was the key evidence establishing Ms. Whiteley’s physical limitations in the absence of formal, physician-issued work restrictions. In the FCA, Bagley assessed Ms. Whiteley’s “residual functional capacity and physical limitations while performing work-related activities” and the impact of those limitations “on her employment, activities of daily living, and recreational activities.” Bagley observed that Ms. Whiteley “gave excellent effort and was cooperative throughout” his two-day assessment. Bagley concluded that “[t]he limited dorsiflexion and dynamic instability of [Ms. Whiteley’s] left ankle significantly affects her ability to position her feet properly and to dynamically pivot.” From this, he further concluded that Ms. Whiteley was capable of lifting no more than thirty pounds, effectively ruling out further work as a CNA.
Dr. Wright did not contradict any of these findings. True, he declined to expressly agree with Bagley’s conclusions regarding Ms. Whiteley’s physical limitations due to what he described as a “philosophical” objection to formally prescribing restrictions because he was afraid they would impede patients’ job prospects. Nonetheless, Dr. Wright’s testimony is entirely consistent with Bagley’s findings:
[Dr. Wright]. Yeah. I mean, I look at it based on the current job that they
are doing; so maybe, again a philosophical thing.
But if she was working on a road construction crew and had to run a shovel
all day, I don’t think she could do that.
Dr. Wright’s impression note from his last appointment with Ms. Whiteley further demonstrates that his “philosophical” objection to formally issued restrictions does not mean he lacked an opinion about Ms. Whiteley’s physical (in)abilities:
I am going to keep her back to full duty without restriction. I think she does fine
with [sic] the activities director. As long as they can leave her in that job, she will
do well. I will see her back on an as-needed basis. If she has to go back and be more
physical, it may be problematic for her. We spoke about doing restriction. She is
really not interested in that. She thinks she can monitor herself and do what she
needs to do.
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(Emphasis added.) Stated differently, Dr. Wright appears to view the activities director role as the outer limit of Ms. Whiteley’s physical abilities and, in his view, it is unlikely that Ms. Whiteley would be capable of returning to “more physical” work as a CNA. Thus, Dr. Wright’s impression contains an implicit restriction, even if he declined to formally prescribe restrictions for Ms. Whiteley. In any event, Dr. Wright’s statements cannot be read as contesting Bagley’s findings in the FCA.
Dr. Bailey, Bridgeview’s IME doctor, does not contest the FCA either. Dr. Bailey agreed that Ms. Whiteley suffered from a “[l]eft ankle fracture with syndesmotic injury . . . complicated by a nonunion of the fibula” and that, after three surgeries, Ms. Whiteley has finally reached MMI. Dr. Bailey agreed that Ms. Whiteley’s 4% permanent impairment rating is appropriate. And he agreed with Dr. Wright’s decision not to issue formal restrictions for Ms. Whiteley because, in his view, Ms. Whiteley “was doing her job” as activities director and likely did not require restrictions given that it is “more [an] administrative-type role.” More importantly, Dr. Bailey acknowledged that Ms. Whiteley’s injuries have limited her physical abilities:
Q. Okay. And so, Dr. Wright, on Page 7, said no restrictions; but my
interpretation of that is, but that’s because she’s in a different job that is less
strenuous, right? She’s -- you characterized it as administrative position, more
sitting, less standing, correct?
[Dr. Bailey]. Correct. Yeah, and that’s kind of what -- you know, I don’t
want to put words in his mouth, but what he said is, you know, back to full duties
without restrictions as long as they leave her in the job of activities director, kind
of thing; more administrative, you know, she can take breaks, she can sit down,
which is -- which is, you know, I think is a reasonable accommodation for her
condition, yeah.
Q. Okay. So -- so it would be fair to say that there is a restriction. The
restriction is in this new job, which is less strenuous, more admin position, not on
your feet for eight hours like CNAs have to be, right?
[Dr. Bailey]. Correct. And I think, you know, I -- I do often defer to
functional capacity evaluations if they’ve been rated as valid, like valid FCEs. And
it seems like that’s kind of what it got to, is her -- can she safely perform jobs
according to, you know, light-duty jobs that fall within low to medium physical
demands.
When explicitly asked whether he agreed with Bagley’s FCA, Dr. Bailey answered unequivocally:
Q. Did you -- did you agree with the functional capacity evaluation,
Doctor?
[Dr. Bailey]. I did.
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Although Dr. Wright declined to comment on the FCA’s limitations for Ms. Whiteley, Bridgeview’s own expert, Dr. Bailey, affirmatively endorsed them.
The opinions of Ms. Whiteley’s vocational consultant, Mr. Granat, are similarly uncontested. Mr. Granat relied on the FCA’s determination that Ms. Whiteley is “restricted to Light physical demand work with limitations for occasional walking (up to 1/3 of the time), frequent standing (up to 2/3 of the time) and occasional squatting, kneeling, bending/reaching and stair climbing” to gauge her “post-injury labor market access.” Based on Ms. Whiteley’s work history, skillset, and physical abilities, Mr. Granat concluded that her “calculated post-injury average loss of access to the labor market . . . is 68%.” And because Ms. Whiteley earned more in the activities director position than she did as a CNA, Mr. Granat determined that Ms. Whiteley “does not have a wage-earning capacity loss.” Averaging Ms. Whiteley’s loss of access to the labor market and wage loss, Mr. Granat calculated a 34% PPD rating.
Ms. Whiteley’s and her husband’s testimony further corroborated the expert evidence. Ms. Whiteley testified that she continues to experience pain and swelling in her left foot and ankle. And she stated that her left ankle joint “doesn’t move the way it should.” Ms. Whiteley explained the various ways in which her injury prevents her from doing CNA work. She also explained how the injury has prevented her from doing recreational activities she once enjoyed, such as hunting, fishing, hiking, climbing, and even walking. Mr. Whiteley offered similar testimony, describing Ms. Whiteley’s inability to recreate outdoors, garden, or even shop for extended periods.
Importantly, none of the evidence or testimony offered by Bridgeview controverts these assertions. In fact, Bridgeview did not even retain an independent physical therapist or vocational consultant to offer any kind of contradictory assessment of Ms. Whiteley’s physical limitations or loss of labor market access. The one expert Bridgeview did retain, Dr. Bailey, endorsed the findings in the FCA and opined that Dr. Wright’s impression note and deposition testimony are best understood as implying restrictions.
Despite the absence of contradictory evidence, the Commission found that Ms. Whiteley’s restrictions were “uncertain,” expressed doubt about the long-term accuracy of the FCA, and deemed Mr. Granat’s PPD rating “overinflated.” Yet Bridgeview offered no evidence to support these conclusions. No expert opined that the FCA overstated her limitations, that her condition was likely to improve, or that the restrictions used in the vocational analysis were inappropriate.
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Bridgeview argues that the Commission was simply weighing the evidence, relying heavily on Mazzone v. Texas Roadhouse, Inc., 154 Idaho 750, 302 P.3d 718 (2013), for the proposition that the Commission, as factfinder, may evaluate an expert’s reasoning, methodology, and consideration of relevant facts. That principle is unobjectionable. The difficulty for Bridgeview is that Mazzone does not apply here. In Mazzone, the parties presented the Commission with three conflicting expert opinions regarding the claimant’s diagnosis. 154 Idaho at 756, 302 P.3d at 724. In that context, the Commission properly resolved conflicts among the competing evidence to conclude that the claimant’s injury had not been correctly diagnosed. Id. at 756–57, 302 P.3d at 724–25. Here, by contrast, there is no conflicting evidence at all. With one side of the scale entirely empty, the Commission had nothing to “weigh” against Ms. Whitely’s evidence. Thus, Mazzone is inapt.
Ms. Whiteley offered substantial, mutually reinforcing evidence of her physical and vocational limitations, while Bridgeview offered almost nothing in opposition. The Commission had no evidentiary basis to support its conclusion that Ms. Whiteley’s restrictions were uncertain. It had no evidentiary basis to support its finding that the FCA somehow failed to depict Ms. Whiteley’s long-term physical limitations (even though it was conducted when she had reached MMI). And it had no evidentiary basis to conclude that Mr. Granat’s PPD rating was “overinflated.” Nothing in the record casts doubt on any of these points. For these reasons, we conclude that the Commission impermissibly refused to accept uncontroverted evidence of Ms. Whiteley’s 34% PPD rating. See Pierstorff v. Gray’s Auto Shop, 58 Idaho 438, 447, 74 P.2d 171, 175 (1937) (citation omitted); Jordan v. Walmart Assocs., Inc., 173 Idaho 115, 121, 539 P.3d 593, 599 (2023).
2. The Commission erred in discrediting the FCA on the basis that it was not endorsed by
Dr. Wright.
The second evidentiary error concerns the Commission’s treatment of the FCA. The Commission found that Ms. Whiteley’s medical restrictions were “uncertain” and “indirectly derived from the FCA.” It appeared to reject Bagley’s FCA because, in its view, an FCA does not represent “permanent medical restrictions of a treating physician” but instead offers only “a snapshot of [Ms. Whiteley’s] limitations on that day.” The Commission further declined to read Dr. Bailey’s testimony as agreeing that the FCA accurately captured Ms. Whiteley’s restrictions. Because Mr. Granat relied in part on the FCA to assess labor market access and wage loss, the
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Commission viewed his vocational analysis with similar skepticism. Thus, the Commission concluded that it would only assign limited weight to Mr. Granat’s vocational analysis:
In this case, Kent Granat’s PPD rating is not founded on medical restrictions
designed to serve [Ms. Whiteley] over time. It’s founded on PT Bagley’s December
1 and 2, 2022, FCA. Vocational experts occasionally offer opinions based solely
on an FCA/FCE. These vocational opinions are not afforded as much weight by the
Commission because they are not vetted by a medical provider who understands
the particular injury and the particular worker’s abilities over time. An FCA/FCE
is only one factor which a doctor considers when issuing medical restrictions for a
patient. Other factors include the physician’s experience with other patients’ similar
injuries and their course of healing, information the physician may have about the
injury from other medical resources, and any other personal or social considerations
about the particular person who is injured. The FCA/FCE itself is only a medical
or vocational expert’s assessment about a person’s physical capacities on a
particular day. So, the restrictions Mr. Granat applied when formulating his 34%
PPD rating are not likely appropriate to serve [Ms. Whiteley] over the course of the
next ten years. On the other hand, a medical provider’s restrictions are designed, in
part, to protect the worker from further injury over time, so the employee’s capacity
at a FCA/FCE may not match the bounds put into place by the provider.
Unfortunately, Dr. Wright declined to issue restrictions in this case due to his
“philosophical” opposition to the risk of issuing medical restrictions which may
later hinder his patient from acquiring work in the future.
The Commission’s core criticism, then, is that Mr. Granat relied on the FCA rather than on medically endorsed restrictions. That reasoning is flawed for at least two independent reasons.
First, the Commission is incorrect that Mr. Granat’s vocational analysis was “based solely on [the] FCA/FCE.” In his report, Mr. Granat quotes Dr. Wright’s impression note from his last visit with Ms. Whiteley, where he stated that she has assumed the activities director role and that “as long as employer leaves her in this job, she will do well.” Moreover, Mr. Granat expressly stated that, as part of his analysis, he “reviewed . . . the available medical records.” His analysis therefore did not rest exclusively on the FCA, contrary to the Commission’s assertion.
Second, as Ms. Whiteley argues, Dr. Bailey did endorse the FCA’s findings, and he testified that he read Dr. Wright’s impression note as implying that Ms. Whiteley could not hold a job more physically demanding than the activities director position. Dr. Wright’s testimony is consistent with that conclusion; even if his statements do not directly establish the conclusion, they certainly do not contradict it. The Commission’s view effectively reduces to the proposition that, unless a treating physician formally converts an FCA’s findings into permanent restrictions, the FCA cannot support a vocational analysis or PPD rating. That is an impermissibly rigid rule.
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Indeed, the Commission itself has not applied such a rule in prior cases. Ms. Whiteley cites Miller v. Clear Springs Foods, Inc., No. IC 2010-011241 (Idaho Indus. Comm’n 2013), as an instance where the Commission relied on an FCA to override the medical restrictions imposed by a physician. There, the claimant’s physician “assigned permanent lifting restrictions of nearly twice the actual weight [c]laimant was able to safely lift, given her undisputedly valid WorkFit FCE.” Id. ¶ 31, at 13. The physician explained that her “personal approach” to FCEs involved “adjust[ing] the weight limits” to account for the fact that “it’s a great test, but it’s just what [the patient is] capable of lifting on that day at that time.” Id. ¶ 28, at 11. The referee found the physician’s heightened restrictions and the rationale for her “personal approach” unpersuasive, concluding instead that “[c]laimant’s maximum lifting abilities are most accurately established by the WorkFit FCE.” Id. ¶ 34, at 14. Thus, Miller suggests that restrictions set forth in an FCA likely do not require the endorsement of a treating physician in order to support a PPD rating. See id. In fact, where an FCA appears more credible than a physician’s restrictions, the FCA may prevail in informing the appropriate PPD rating. See id.
This Court has likewise made clear that a worker’s compensation claimant need not rely on expert medical opinion to establish disability in excess of impairment. Baldner v. Bennett’s, Inc., 103 Idaho 458, 461–62, 649 P.2d 1214, 1217–18 (1982); Bennett v. Clark Hereford Ranch, 106 Idaho 438, 442, 680 P.2d 539, 543 (1984) (citation omitted); Bell v. Clear Springs Trout Co., 107 Idaho 568, 570, 691 P.2d 1183, 1185 (1984) (citation omitted). Bridgeview dismisses the Baldner rule as largely irrelevant to the present case. Instead, it asserts that this appeal “is nothing more than a thinly veiled request for the Court to reweigh the factfinder’s credibility determination bolstered by the dissenting opinion of the Commission’s employee representative.”
Yet the Commission’s own language discredits that assertion. The Commission found that a vocational opinion “based solely on an FCA/FCE” is not entitled to “much weight by the Commission because they are not vetted by a medical provider who understands the particular injury and the particular worker’s abilities over time.” This is not a fact-specific credibility finding; it is a categorical rule rejecting FCA-based restrictions unless endorsed by a treating physician.
Holding a claimant to such a “particular method of proof” is inconsistent with this Court’s reading of the worker’s compensation law. Bennett, 106 Idaho at 442, 680 P.2d at 543 (quoting Baldner, 103 Idaho at 461, 649 P.2d at 1217; then citing Murray v. Hecla Mining Co., 98 Idaho 688, 571 P.2d 334 (1977); and then citing Thom v. Callahan, 97 Idaho 151, 540 P.2d 1330 (1975)).
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A claimant is not required to offer expert testimony in order to satisfy their burden of proving disability in excess of impairment. Id. As Miller illustrates, an FCE may be sufficient on its own to establish disability in excess of impairment. See Miller, No. IC 2010-011241, at ¶ 34, at 14. Because the Commission departed from Bennett and its own practice, as reflected in Miller, by requiring Ms. Whiteley to validate the FCA with the endorsement of her treating physician, we hold that the Commission applied the incorrect legal standard to its evaluation of that evidence. We reiterate that the worker’s compensation law “does not require any particular method of proof” to prove disability in excess of impairment. Baldner, 103 Idaho at 461, 649 P.2d at 1217.
3. The Commission’s 20% PPD rating is clearly erroneous.
Even if the Commission’s treatment of the FCA were considered a proper weighing of the evidence, this record does not offer any support for the Commission’s ultimate conclusion that a 20% PPD rating is more appropriate than the 34% rating Ms. Whiteley proposed. Ms. Whiteley charges the Commission with deriving the 20% PPD rating from “rank speculation that [her] restrictions are not permanent” and assuming without evidence that Ms. Whiteley’s “condition might improve over time,” despite also acknowledging that she had reached MMI.
This Court generally defers to the Commission’s findings of fact, aside from the extreme instance where those findings are “clearly erroneous.” Clark v. Shari’s Mgmt. Corp., 155 Idaho 576, 579, 314 P.3d 631, 634 (2013) (citation omitted). Clear error is the result of a finding unsupported by “substantial and competent evidence;” that is, “relevant evidence that a reasonable mind might accept to support a conclusion.” Uhl v. Ballard Med. Prods., Inc., 138 Idaho 653, 657, 67 P.3d 1265, 1269 (2003) (citing Hughen v. Highland Ests., 137 Idaho 349, 48 P.3d 1238 (2002)).
Bridgeview presented no evidence to contradict the evidence offered by Ms. Whiteley. No expert disputed the FCA’s conclusion that she is limited to light‑duty work. And no expert proposed an alternative PPD rating based on her loss of labor‑market access or wage‑earning capacity. Yet the Commission concluded that Ms. Whiteley’s physical limitations—and, more formally, her work restrictions—were “uncertain” and “are not likely appropriate to serve [her] over the course of the next ten years.” To justify discounting her proposed PPD rating, the Commission relied instead on Dr. Wright’s refusal to issue formal restrictions and on its own institutional knowledge about how physicians and vocational experts typically define medical restrictions.
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In other words, the Commission treats Dr. Wright’s refusal to issue formal restrictions as proof that he disagrees with the FCA. But nothing in the record supports this inference; in fact, Dr. Bailey’s testimony patently rejects it. Moreover, none of Bridgeview’s evidence rebuts the FCA or vocational analysis. So what basis does the Commission have to conclude that the FCA’s depiction of Ms. Whiteley’s restrictions is “not appropriate”? That is necessarily a medical conclusion devoid of any support in the record. And while it might be true that “[a]n FCA/FCE is only one factor which a doctor considers when issuing medical restrictions for a patient,” that proposition appears to reflect more the Commission’s “specialized” knowledge than a conclusion supported by the record in this particular case. See Mazzone v. Tex. Roadhouse, Inc., 154 Idaho 750, 760–61, 302 P.3d 718, 728–29 (2013) (setting aside the Commission’s order because it relied on a medical manual to conclude, on its own, that the claimant’s physicians had provided an improper diagnosis).
In the Commission’s view, these considerations justified a fourteen-percentage point reduction to the PPD rating Ms. Whiteley proposed. It adopts a Solomonic rationale—effectively splitting the difference between Ms. Whiteley’s 34% proposed rating and Bridgeview’s 17% assessment—as a supposed middle ground. But this reasoning does not constitute “substantial evidence” supporting a 20% PPD rating. Neither the Commission nor Bridgeview offered any calculation—let alone one comparable to Mr. Granat’s—explaining how the Commission arrived at a 20% rating. The Commission simply concludes that Ms. Whiteley “has established . . . that she has incurred a PPD of 20% inclusive of her 4% PPI.” The lack of any evidence on Bridgeview’s part and the Commission’s reliance on its own medical reasoning suggests that its 20% PPD rating is clearly erroneous—there is no substantial and competent evidence supporting it.
To summarize, the Commission erred in its treatment of the evidence in at least three respects. First, it failed to accept uncontroverted evidence of Ms. Whiteley’s physical restrictions, even in light of the fact that Bridgeview did not bother to offer its own FCA or vocational analysis. The one expert it did offer provided a medical endorsement of the FCE and urged the Commission to read Dr. Wright’s statements as medical restrictions. Second, the Commission categorially discounted the FCA because it was not endorsed by Dr. Wright, effectively holding Ms. Whiteley to a heightened burden of proof that this Court has explicitly rejected in prior cases. Third, even setting these errors aside, the record offers no basis to conclude that Ms. Whiteley’s PPD is more appropriately rated at 20% than at 34%.
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We conclude that these errors of law necessitate setting the Commission’s order aside. When the Commission rejects uncontroverted evidence, it applies an incorrect legal standard to its task of weighing the evidence, with the result that its findings of fact based on that evidence “do not as a matter of law support the order or award.” I.C. § 72-732(4). Moreover, when the Commission reaches a PPD rating lacking any evidentiary support in the record, its decision is necessarily unsupported by substantial and competent evidence. I.C. § 72-732(1). We find both forms of error in the present case and therefore set aside the Commission’s order. The evidence before the Commission supports the 34% rating Ms. Whitely proposed.
B. The Commission erred in discounting Ms. Whiteley’s PPD rating based on her
likelihood of retaining the activities director job with Bridgeview.
Ms. Whiteley next challenges the Commission’s second rationale for reducing her PPD rating: its determination that she faces only a minimal likelihood of having to seek alternative employment. She argues that Idaho caselaw, specifically Rodriguez v. Consolidated Farms, LLC, 161 Idaho 735, 742, 390 P.3d 856, 863 (2017), and Bennett v. Clark Hereford Ranch, 106 Idaho 438, 441, 680 P.2d 539, 541 (1984), as well as the worker’s compensation law itself, required the Commission to evaluate her general “ability to engage in gainful activity” rather than focus narrowly on the particulars of her current job. Bridgeview does not respond to this particular claim of error on appeal in its briefing.
The worker’s compensation law instructs that an evaluation of a claimant’s permanent disability must focus on the ability to meaningfully participate in the workforce:
“Evaluation (rating) of permanent disability” is an appraisal of the injured
employee’s present and probable future ability to engage in gainful activity as it is
affected by the medical factor of permanent impairment and by pertinent
nonmedical factors [as] provided in section 72-430, Idaho Code.
I.C. § 72-425. The plain language of section 72‑425 makes clear that the “appraisal” it envisions is a broad one. It directs an appraisal of both the medical evidence concerning the lasting effects of the claimant’s injury and the nonmedical factors listed in section 72‑430, such as the claimant’s age, occupation, and the injury’s effect on competitiveness in the labor market. See Bennett, 106 Idaho at 441, 680 P.2d at 542. In Bennett, this Court explained that these broad considerations cannot be subordinated by the Commission’s inquiry into the particulars of the claimant’s present employment:
Instead of evaluating Mr. Bennett’s disability in terms of his “ability to
engage in gainful activity as it is affected by the medical factor of permanent
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impairment and by nonmedical factors,” it appears that the Commission merely
considered the fact that Mr. Bennett was presently employed as a truck driver; that
“his reason for discontinuing his truck driving as an independent truck driver was
financial inability to have an engine repaired;” and that “at the time of the hearing,
[c]laimant was in fact working as a truck driver in the state of Texas working 10
hours per day five to five and a half days per week.”
The fact that Mr. Bennett was able to continue truck driving does not
establish that his ability to engage in gainful activity was not diminished by the
nonmedical factors the Commission is required to consider under I.C. § 72-425 . . . .
Id.; see also Rodriguez, 161 Idaho at 742, 390 P.3d at 863 (“A single job, offered by an employer who has a previous relationship with a claimant, is of limited relevance in this context because it is unlikely to be representative of a “‘branch of the labor market.’”). The error this Court identified in Bennett is the very same error the Commission committed in the present case.
In finding that Ms. Whiteley’s proposed 34% PPD rating was “overinflated,” the Commission relied, in part, on the fact that Ms. Whiteley performs the activities director job well and that “there is no substantial evidence that this job is endangered in any way.” This is too narrow a basis from which to discount her PPD rating. See Bennett, 106 Idaho at 441, 680 P.2d at 542. Section 72‑425 directs the Commission to consider the claimant’s “present and probable future ability to engage in gainful activity,” I.C. § 72-425, a standard that does not turn on the likelihood that the claimant will reenter the labor market to seek alternative employment. Rather, it requires an assessment of the injury’s impact on the claimant’s competitiveness in the labor market as a general matter. See id.
Because the Commission discounted Ms. Whiteley’s proposed PPD rating based on its view that she is unlikely to seek alternative employment, it erred as a matter of law in reaching the 20% figure on which it ultimately settled. This legal error provides an adequate and independent basis for setting aside the Commission’s order because “[t]he findings of fact do not as a matter of law support the order or award.” I.C. § 72‑732(4). Again, the uncontroverted evidence before the Commission supported the 34% rating Ms. Whitely proposed.
IV. CONCLUSION
Based on the foregoing reasons and authorities, we set aside the Commission’s order.
Chief Justice BEVAN, and Justices MOELLER, ZAHN and MEYER CONCUR.
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