dissenting.
I cannot agree that there is substantial and competent evidence to support the *63Commission’s findings in this case. Accordingly, I believe that the decision of the Commission should be reversed. Dean v. Dravo Corp., 97 Idaho 158, 160, 540 P.2d 1337, 1340 (1975) (findings of the Commission not supported by substantial and competent evidence are not binding upon this Court; whether findings are supported by substantial and competent evidence is a question of law).
The Commission originally found that “[t]he evidence, in this case, does not establish that the change in the nature or extent of the claimant’s condition is attributable to either the May, 1976 accident or the October, 1976 accident.” R., p. 22. In denying Carter’s motion for reconsideration, the Commission clarified its finding, stating:
“It is not accurate to state that Dr. Gresham attributed, with a reasonable degree of medical probability that change in condition to the May, 1976 accident. Dr. Gresham was questioned extensively regarding his opinion as to the cause of the Claimant’s neurological changes, which resulted in him giving the Claimant an additional 6% of the whole man permanent partial impairment for his back. The physician was not able to say, with a reasonable degree of medical probability, that the change in the Claimant’s condition was due to the May, 1976 accident.” R., p. 28 (emphasis added).
In support of its conclusion that Carter failed to establish a causal connection between his change of condition and an industrial accident, the Commission relied on select portions of Dr. Gresham’s testimony:
“Q. [By Mr. Cooper] So at the present time, you gave him an additional 6% of the whole man?
“A. Yes.
“Q. But, as I understand it, you cannot say with reasonable medical probability that that’s due to the ’76 accident, but more probably is due to a combination of factors including his obesity?
“A. That is correct.”
Tr., p. 57.
“Q. [By Mr. Zollinger] Doctor Gresham, in response to one of Mr. Meyers’ questions, you indicated that in the injury in October of 1976, the neck injury, might have a possible effect on the low back describing, I think, catching a heavy weight in a bending position or something, and I would like to, in that same vein, I would like to clarify some things that Mr. Cooper was asking you. He was referring to reasonable medical probability; in your answers you were referring to reasonable medical certainty. I would like to ask if the acute low back sprain occasioned in May of 1976 as diagnosed by you, if you could say that there is a reasonable medical probability that it contributed in any degree whatsoever to his current low back disability or impairment ratings?
“A. You mean to his present rating?
“Q. Correct, not the entire 6%, but in any degree.
“A. Yes, I think it would and I would like to explain my thinking or rationale for that. I think that any insult to his back leaves a permanent mark in terms of the possibility and actual progressions. Certainly he had problems before with his back and another injury producing more back symptoms; one has to assume, although it’s partially speculative, that each insult is more injury to the back and on a collective basis can contribute to symptoms that develop in the future without further injury.”
Tr., pp. 72-73.
If the quoted portions of Dr. Gresham’s testimony are read alone, they arguably appear to support the above statement of the Commission which I have underlined. However, the quoted passages must be read in context. It must be remembered that the employer and its surety brought in the Industrial Special Indemnity Fund (ISIF), and that pursuant to I.C. § 72-332, the employer and its surety were potentially liable for payment of compensation benefits “only for the disability caused by the [industrial] injury,” the liability for the remaining compensation benefits falling upon the ISIF.
*64Dr. Gresham testified repeatedly that in his opinion there was a causal connection between the May 1976 accident and the increased impairment of Mr. Carter’s low back. The respondents’ argument is simply that his testimony was later contradicted, as evidenced by the above quoted excerpts. I cannot agree. The doctor’s testimony which initially gave rise to the confusion in this case was elicited by Mr. Cooper, the attorney for the employer and its surety. It was Mr. Cooper’s contention that even if the May 1976 accident were a cause of the change in Carter’s low back condition, only a portion of the six percent change was attributable to the accident, the remaining portion of the change being caused by such factors as Carter’s obesity and his change in gait. Read in context, it is clear that the questions by Mr. Cooper were an attempt to elicit Dr. Gresham’s opinion of a proper apportionment of the six percent change in Carter’s low back condition,1 specifically what portion of that six percent was attributable to the May 1976 industrial accident. Mr. Cooper had already heard the doctor’s direct testimony, and was only trying to establish with exactitude the small percentage for which his clients might be responsible. Although it is clear from the above quoted testimony that Dr. Gresham would not say that the entire additional six percent rating was attributable to the May 1976 accident, this certainly did not contradict his unwaivering opinion, based upon reasonable medical probability, that the May 1976 accident was a contributing cause in some degree to Carter’s change in condition. This is well demonstrated by Dr. Gresham’s responses to the questions posed on redirect examination by Carter’s attorney, Mr. Zollinger. As quoted previously, on redirect, Dr. Gresham again answered affirmatively when asked whether he could say there was a reasonable medical probability that the May 1976 industrial injury contributed in any degree to Carter’s current low back disability or impairment ratings. Therefore, it follows that Dr. Gresham did not contradict his medical opinion, which was that to a reasonable degree of medical probability, there was a causal connection between the May 1976 accident and the increased impairment of Carter’s low back. Nor was Dr. Gresham’s testimony otherwise contradicted.2 The Commission should have accepted his opinion, and acted upon it accordingly. It appears very clear to me that the Commission was simply led astray when it passed on the motion for *65reconsideration, at which time it was apparently directed to some out-of-context testimony. There is no reason to believe that the Commission is not aware of Pierstorff v. Gray’s Auto Shop and Aetna Casualty & Surety Co., 58 Idaho 438, 447-48, 74 P.2d 171, 175 (1937) (“A board, court or jury must accept as true the positive, uncontradicted testimony of a credible witness, unless his testimony is inherently improbable, or rendered so by the facts and circumstances disclosed at the hearing or trial.”). (Reaffirmed in Dinneen v. Finch, 100 Idaho 620, 626-27, 603 P.2d 575, 581-82 (1979).)
The finding of the Commission that Carter failed to prove, with a reasonable degree of medical probability, that there was a causal connection between his change of condition (which resulted to total permanent disability) and the May 1976 accident, is not supported by substantial and competent evidence, and should not stand in the way of Carter’s claim. Furthermore, where the Commission’s finding that Carter’s condition had changed after the May 1976 accident, with the further finding that he became totally and permanently disabled, have not been contested, and, because there is substantial and competent evidence which supports those findings, this case should be remanded to the Commission for the entry of an appropriate award. A majority of the Court either does not fully understand what took place here, or sees Carter’s obesity as a sort of self-inflicted condition similar to misconduct.
Perhaps, should the Commission in the interests of fairness both to claimant and Dr. Gresham on reflection perceive that it may have been led astray, it does have the power to reexamine the issue on the basis of manifest injustice.
. At oral argument, Mr. Cooper, attorney for the employer and its surety, was asked the following question from the Bench:
“Had the Commission, if they accepted what Mr. Zollinger says is the proper view of the testimony and found that yes it was a cause of the ’76 accident, and if the Commission had come up and said yes we’ll give it one percent, you could have lived with that?” He answered, “Certainly,” and the following exchange then occurred:
“FROM THE BENCH: But maybe Mr. Meyers [counsel for the ISIF] couldn’t.
“MR. COOPER: To tell the truth, Your Honor, we briefed this in the post-hearing briefs, and I believe — I suggested something like that.
“FROM THE BENCH: I don’t think we have those briefs, do we?
“MR. COOPER: You do not have those on the record. But that was all thoroughly briefed. And that was the additional problem, if the Industrial Commission was going to say that the claimant carried his burden, then you have to decide how to apportion the six percent.
“FROM THE BENCH: And that’s why you brought the ISIF in?
“MR. COOPER: Absolutely. Absolutely. Because our only responsibility as surety is only that specific one or two percent that could be attributed to the May ’76 accident. The total is their problem.”
. The only other medical testimony before the Commission was that of Dr. Coughlin, the chairman of the panel which examined Carter. His testimony was directed primarily toward the percentages of impairment for the various anatomical functions. When asked whether in his opinion, based upon reasonable medical probability, the May 24, 1976, accident contributed to the increased impairment in Carter’s low back, he stated that it “possibly” could have. He also stated that there “could have been” a disability or an impairment resulting to Mr. Carter from the May 1976 injury to his low back. However, Dr. Coughlin admitted that he did not have any way of determining, based upon the records he had reviewed and the examination of Carter, whether additional disability or impairment was sustained by Mr. Carter in May 1976 to his low back.