LuAnn Shubert (“Shubert”) filed a workers’ compensation claim with the Idaho Industrial Commission (the “Commission”). Shubert’s claim was heard by a Commission referee, who excluded two of her exhibits during the hearing. For the most part, the referee denied her claim, and the Commission approved and adopted the referee’s findings of fact. Shubert appealed. One basis for her argument on appeal was the two exhibits excluded by the referee.
Believing the Idaho Supreme Court could consider the two exhibits merely because they were included in the record on appeal, Shubert argued the Commission’s order was not supported by substantial and competent evidence. The Court refused to consider the argument because Shubert failed to preserve the issue before the Commission. The Court is “restricted to and must decide the case on the record.” On appeal from a Commission order, the Court reviews the order based on the record before the Commission. But while both exhibits were included in the record on appeal, neither was admitted before the Commission.
The Court also refused to consider the two exhibits for another reason: Shubert’s opening brief did not argue that the referee erred when he excluded the exhibits. Instead, she raised the issue in her reply brief. As a result, she failed to comply with Idaho Appellate Rule 35(a)(6) (requiring argument and authority in appellant’s opening brief). For that reason too, the Court refused to consider the exhibits in determining whether the Commission’s order was supported by substantial and competent evidence. The Court’s decision is Shubert v. Macy’s West, Inc., 2015 Opinion No. 26 (Feb. 27, 2015).