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IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 32429 ) ) ) 2007 Opinion No. 50 ) ) Boise, January 2007 Term ) ) Filed: March 28, 2007 ) ) Stephen W. Kenyon, Clerk ) )

MARY JO STOLLE, Claimant-Appellant, v. CHRISTINE BENNETT, Employer, Defendant-Respondent.

Appeal from the Industrial Commission. The decision of the Industrial Commission denying worker's compensation benefits is: affirmed. Scott L. Rose, Boise, for appellant. Camacho Mendoza Law Office, Boise, for respondent. Natalie C. Mendoza argued. ________________________________________ TROUT, Justice Mary Jo Stolle appeals from a decision of the Industrial Commission (Commission) denying her worker's compensation benefits.

I. FACTUAL AND PROCEDURAL BACKGROUND Stolle was employed as a driver for Christine Bennett's limousine business, which Bennett ran out of her home. Stolle claims that on December 18, 2003, she was to drive a group of people in one of Bennett's limousines. After leaving Bennett's home, Stolle discovered that the limousine didn't have gas, so she drove back to Bennett's home to obtain the fuel credit card. Stolle alleges that when she opened the door of the limousine and stepped out onto the driveway, she slipped on ice and fell down, hurting herself. She also claims that Bennett and Bennett's boyfriend, Robert Baker, witnessed the fall and then fell on the ice themselves when running to Stolle's aid. Stolle testified that all three of them went into Bennett's house to make sure Stolle was all right. Shortly thereafter, Stolle drove home, followed by Bennett's father, Jerry Gummert, who was there to make sure she got home. Stolle claims she was fired that same day. 1

At the time of Stolle's alleged fall, Bennett had not obtained worker's compensation insurance for her business. It is Bennett's position that Stolle never fell and that she fabricated the entire incident. Both Bennett and Baker testified they were not at Bennett's house at the time of Stolle's alleged accident and neither witnessed a fall, nor did they fall themselves. Further, Bennett testified that Stolle was no longer employed by her on December 18th and, therefore, did not do any work for her on that date. Stolle subsequently sought unemployment benefits and also filed a worker's compensation claim on January 5th. On January 6th, Stolle went to the hospital complaining of a headache and abdominal pain, reporting that she fell on December 18, 2003. The unemployment benefit case apparently resulted in a determination that Stolle was an employee of Bennett and therefore, Bennett was wrong in failing to maintain worker's compensation insurance. The worker's compensation case was assigned to a referee, who conducted a hearing. After listening to lengthy testimony and considering a number of exhibits, the referee concluded that Stolle was simply not to be believed and there was no basis for determining she was injured in an accident arising out of her employment; therefore, he denied Stolle benefits. The Industrial Commission adopted the referee's Findings of Fact, Conclusions of Law, and Recommendation (Findings). Thereafter, Stolle's attorney filed a number of motions, including a motion to take the deposition of Stolle's doctor as well as motions asking the Commission to reconsider. The Commission denied Stolle's motion to re-open the record for a post-hearing deposition of her treating physician, holding that she had not complied with Rules 10E(1) and (4) of the Judicial Rules of Practice and Procedures (JRP), which require notice of post-hearing depositions to be filed no later than ten days before the hearing. Stolle filed a Motion for Reconsideration that was subsequently denied. Stolle now appeals the Commission's Orders. II. STANDARD OF REVIEW When reviewing a decision of the Industrial Commission, this Court exercises free review over questions of law, but reviews questions of fact only to determine whether substantial and competent evidence supports the Commission's findings. 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

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conclusion." Id., quoting Boise Orthopedic Clinic v. Idaho State Ins. Fund, 128 Idaho 161, 164, 911 P.2d 754, 757 (1996). It is more than a scintilla of proof, but less than a preponderance. Jensen v. City of Pocatello, 135 Idaho 406, 412, 18 P.3d 211, 217 (2000). All facts and inferences will be viewed in the light most favorable to the party who prevailed before the Industrial Commission and the Commission's conclusions regarding credibility and weight of evidence will not be disturbed unless the conclusions are clearly erroneous. Neihart, 141 Idaho at 802-03, 118 P.3d at 134-35. III. DISCUSSION A. Post-hearing deposition The hearing before the referee concluded on April 5, 2005. On May 2, 2005, Stolle moved to re-open the record for the post-hearing deposition of her physician, Keath Berning, D.C., to augment the record with his medical opinion regarding the cause of her injuries. The referee and Commission denied the motion, because Stolle had failed to comply with JRP 10E(1) and (4). Rule 4, which covers filing and service requirements and Rule 10E(1) are clear in requiring that a deposition be noticed up more than 10 days prior to the hearing: "Notice of all depositions to be taken pursuant to this subsection must be filed with the Commission and served on all other parties not later than 10 days prior to the hearing." JRP 10E(1). Although the Rules do provide exceptions to this requirement for good cause, no such showing was made in this case. It is clear from the record the doctor's deposition was not noticed up more than 10 days prior to the hearing and, therefore, there was no abuse of discretion in the Commission's decision refusing to allow the post-hearing deposition.

B.

Certification for contempt Stolle filed a notice to take the deposition of Bennett's father, Jerry Gummert. Before the

deposition, a message was given to Stolle's counsel that Gummert, who was living out of state at the time, was ill and could not attend but would be available to have his deposition taken over the telephone. Stolle claims that despite being properly subpoenaed, Gummert failed to attend his deposition and thus, the Commission was required to certify the facts to the district court for contempt proceedings. Idaho Code

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