dissenting.
This is another in a series of several cases coming before this Court in the past four years where the industrial commission has approved settlements which misrepresent by their titles that which is in (i.e., missing from) the text.
There is at least one distinction in major substance between a “disability rating” and an “impairment rating.” Claimants continuously suffer loss of benefits to which they are entitled because the commission frequently signs off on “disability ratings” which are in truth only “impairment ratings” because they do not contain either consideration of or award of compensation for the nonmedical factors.
It is disappointing that the court should place its stamp of approval on this depriving workmen of their entitlements. Often the value of the nonmedical factors (for which insurance premiums are paid, and for which the worker has surrendered his right to sue in tort) is as substantial as the impairment award.
THE FACTS
A more comprehensive statement of the facts than that presented by the majority is necessary to an understanding of the injustice being perpetuated here.
Claimant Tommy Harmon suffered an industrial accident on September 29, 1980, while working as a hole-digger for Lute’s Construction Company. Harmon slipped and was hit in the shoulder by a hydraulic ram, sustaining an injury to his lumbar spine with resulting large central disc herniation between the fourth and fifth lumbar vertebraes. Harmon first went to a doctor in Gooding and, thereafter, was treated by Dr. Robert J. Porter, an orthopedic surgeon in Twin Falls. .
Harmon did not improve with conservative back care and experienced an inordinate amount of pain. Additionally, Harmon experienced occasional numbness in his right leg.
Dr. Porter performed a laminectomy on November 4, 1980, designed to repair the herniation. Harmon’s condition did not improve significantly after the surgery and he continued to experience severe pain and occasional numbness in the leg.
Harmon was rehospitalized toward the end of December, 1981, and on March 31, 1981, underwent further exploratory surgery of the lumbosacral spine. Again, the surgery failed to alleviate Harmon’s condition.
Dr. Porter then referred Harmon to Dr. Robert Burton, a Boise neurologist. Dr. Burton recommended that Harmon be treated for his pain at the Elk’s Rehabilita*297tion Center. He entered the center for two weeks on September 15, 1981. The Elk’s program enabled Harmon to stop taking medication for his pain for awhile, although he continued to experience pain. On October 6, 1981, Dr. Porter rated Harmon impaired to the extent of 20% of the whole man.
During the course of his treatment, Industrial Indemnity Company of California, the surety, assigned Martha Peterson, a rehabilitation nurse; Jim Spooner, a field representative; and Don MacMillan, a claims manager, to monitor Harmon’s progress and claim. After the second surgery, Mrs. Peterson made regular monthly visits to Harmon at his home and at the Elk’s Rehabilitation Center. Several of Mrs. Peterson’s reports indicate that neither she nor Jim Spooner foresaw an optimistic outcome for Harmon. In her report dictated July 13, 1981, Mrs. Peterson stated:
“Jim Spooner visited with Tom just before I arrived and I talked with Jim about it after we had both completed our visits. Jim and I both feel that having had two back surgeries within six months and having the residual that he is having that we are in definite trouble with this claim.”
In a report dictated August 18, 1981:
“At this time, Tom continues to complain of severe low back pain, with right hip and leg involvement. He states that the pain goes clear to his toes. He is taking Darvocet N-100 for pain, but feels this is doing very little for him. His activities chiefly involve walking about the house and around the yard. He is essentially doing nothing and was again lying on the couch when I visited him today.”
“Tom is certainly a bad case with his limited education and background and having two surgical procedures within approximately six months [sic] of time. ... I have talked with Jim Spooner again this month personally about Tom and he is working closely with him. At this time, he has no prospects for Tom because of his medical instability.”
Finally, in a report dictated October 23, 1981, based upon a meeting with Harmon after his completion of the back program at Elk’s Rehabilitation Center, Mrs. Peterson noted that Harmon “continues to complain of low back pain with right hip and leg involvement and some numbness in the right leg.” Also, Mrs. Peterson noted that Harmon was interested in buying a bar in Fairfield, Idaho. Mrs. Peterson reassured Harmon that Mr. MacMillan would visit Harmon soon to discuss his award and would bring a “comp agreement.”
Don MacMillan received and read each of Mrs. Peterson’s reports. Additionally, he met with Harmon while Harmon underwent treatment at the Elk’s Rehabilitation Center, at which time Harmon expressed his interest in receiving a speedy settlement so he would have the funds to either buy a bar or open a wood-carving business.
After Harmon was released from the Elk’s Rehabilitation Center, Don MacMillan met with Harmon on October 15, 1981, at Harmon’s home, at which time MacMillan explained and outlined the differences between lump sum agreements and compensation agreements. (See, Descriptive Diagram, Defendants’ Exhibit 24, attached hereto as Appendix A.) On October 20th, MacMillan and Harmon met again and negotiated a lump sum agreement for $17,-924, which sum included $500 for future medical expenses and $6,864 for institutional re-training for 52 weeks. Mr. MacMillan chose both figures personally, because I didn’t think, in Tom’s case, there would be anything that he would train for that would exceed 52 weeks.” MacMillan chose the figure of $500 future medical expenses because “It’s a round figure and it would be sufficient enough to take care of minor medical needs that he might need; medication, if he wanted to return to Dr. Porter.” MacMillan did not contact Dr. Porter to ask whether or not $500 would in fact be a reasonable figure for future medical expenses.
At one point during MacMillan’s explanations and the negotiation of a lump sum agreement, Harmon indicated that he *298might contact an attorney, but that he wasn’t sure why he should. MacMillan’s response was, “I said something like, you could, but that’s fine, but it wouldn’t change our position any.” Harmon did not retain counsel at any point prior to the signing and final approval of his lump sum agreement.
Harmon testified that he did not fully understand the distinction, explained to him by MacMillan, wherein only $500 of future medical expenses would be provided under a lump sum agreement as opposed to full coverage of five years’ worth of medical expenses which would have been available under a compensation agreement. Harmon attributes, in part, this misunderstanding to the fact that he was taking pain medications and drugs continuously during the negotiation process.
The lump sum agreement was signed on October 20th, 1981, and was denied approval by the Industrial Commission on November 6, 1981. The lump sum agreement was rejected on grounds that the Commission could not find sufficient medical justification to lump the case.
After approval was denied, MacMillan contacted Dr. Robert Burton by telephone. MacMillan informed Dr. Burton that Harmon’s condition had improved considerably since he was examined by Dr. Burton. Without examining Harmon, Dr. Burton wrote a report to the Commission indicating that a speedy resolution of Harmon’s claim was in the best interest of Harmon and all concerned. Based upon this information, the Industrial Commission then approved the lump sum agreement. MacMillan based his opinion that Harmon had improved considerably upon his own personal meetings with Harmon, including the meeting on October 15, when, Harmon “looked well rested, clothes were clean, just didn’t appear to be anything wrong with him. He gave no evidence of being in pain. He sat comfortably. Walked around comfortably. He talked freely. He was very optimistic, in fact. That’s why I concluded he felt — looked good.”
Since November 1981, Harmon has incurred hospital expenses of approximately $13,000 and, additionally, bills of between $3,000 and $4,000 owed to Dr. Porter. Harmon’s pain still persists. The doctors agree that Harmon seems to have an abnormally low threshold to pain, but psychiatric testing has shown that the pain is “real to him.” He has still not found gainful employment.
The Industrial Commission denied Harmon’s request that his lump sum agreement be set aside after finding that no fraud on the part of Industrial Indemnity Company could be found and that, in the absence of fraud, I.C. §§ 72-718 and 72-404 prohibit the setting aside of lump sum compensation agreements.
The lump sum agreement awarded Harmon contained awards of $,6,864 for retraining/vocational assistance for fifty-two weeks; $500 for future medical expenses; and $11,110 for 20% permanent impairment of the whole man rating, for one hundred weeks. There was no express mention in the lump sum agreement of any compensation for nonmedical factors as they impacted on Harmon. In short, there appears to have been no consideration whatsoever given to establishing Harmon’s permanent partial disability (as distinguished from impairment) rating. In fact, no such rating was ever done by either Dr. Porter or the Commission.
The Idaho Worker’s Compensation Law has, by separately codifying definitions of both permanent impairment and permanent disability, made it apparent that both ratings are discrete and distinct factors for consideration in worker’s compensation awards. I.C. § 72-424 provides the definition of permanent impairment:
72-424, Permanent impairment evaluation. — “Evaluation (rating) of permanent impairment” is a medical appraisal of the nature and extent of the injury or disease as it affects an injured employee’s personal efficiency in the activities of daily living such as self care, communication, normal living postures, ambulation, *299elevation, traveling, and nonspecialized activities of bodily members.
I.C. § 72-425 contains the following language explaining permanent disability:
72-425. Permanent disability evaluation. — “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 provided in section 72-430, Idaho Code.
I.C. § 72-430 further provides:
72-430. Permanent disability — Determination of — Percentages—Schedule.— (1) Matters to be considered. In determining the percentages of the permanent disabilities less than total, account shall be taken of the nature of the physical disablement, the disfigurement if of a kind likely to handicap the employee in procuring or holding employment, the 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.
This court has previously recognized the distinction between permanent impairment and permanent disability in Curtis v. Shoshone County Sheriffs Office, 102 Idaho 300, 629 P.2d 696 (1981), wherein we stated:
Since these three statutory definitions [citations omitted] [for permanent physical impairment, permanent impairment and permanent disability] were passed simultaneously by the legislature, we can only conclude that the legislature intended that they define three different, but related, classifications.
Id. at 304, 629 P.2d 696.
One must bear in mind the distinction between permanent impairment and permanent disability as one analyzes I.C. §§ 72-718 and 72-719, which set forth the grounds upon which a decision of the Industrial Commission may be modified. I.C. § 72-718 states in pertinent part:
72-718. Finality of commission’s decision. — A decision of the commission, in the absence of fraud, shall be final and conclusive as to all matters adjudicated by the commission upon filing the decision in the office of the commission; provided, within twenty (20) days from the date of filing____ (Emphasis added).
I.C. § 72-719 provides in relevant part: 72-719. Modification of awards and agreements — Grounds—Time within which made.—
(3) The commission, on its own motion at any time within five years of the date of the accident causing the injury or date of first manifestation of an occupational disease, may review a case in order to correct a manifest injustice.
(4) This section shall not apply to a commutation of payments under section 72-jOj. (Emphasis added).
The statutory mandate is clear, and must be given effect. Umphrey v. Sprinkel, 106 Idaho 700, 682 P.2d 1247 (1983). The only grounds upon which a lump sum agreement may be set aside or modified, subsequent to the time set for appeal, is fraud. Fountain v. T.Y. & Jim Hom, 92 Idaho 928, 453 P.2d 577 (1969). Therefore, the commission was correct in concluding that the Idaho law does not allow for the modification of lump sum agreements for either manifest injustice or mutual mistake of fact.
However, the issue still remains as to whether all aspects of the claim were “fully adjudicated,” thereby precluding further consideration of additional factors not pre*300viously adjudicated. As I have already noted, ratings for permanent impairment and permanent disability are distinct and discrete factors for consideration in worker’s compensation awards.
In Woodvine v. Triangle Dairy, Inc., 106 Idaho 716, 682 P.2d 1263 (1984), this court interpreted the statutory mandate of I.C. § 72-718 in the context of compensation agreements. In Woodvine, we held compensation agreements are final and conclusive only as to those matters actually adjudicated by the Commission. In that case, we held that the failure to appraise for permanent disability rendered the agreement open to consideration of that factor:
We conclude that the legislature, by adding the phrase “as to all matters adjudicated,” [in enacting I.C. § 72-718 in 1971] intended that decisions of the commission be final and conclusive only as to those matters actually adjudicated.” (Woodvine, 106 Idaho at 721, 682 P.2d 1263).
This is a departure from the concept of “pure res judicata,” applied prior to 1971, which accorded decisions by the commission finality and conclusiveness as to all matters which were, or could have been, adjudicated. (Woodvine, 106 Idaho at 721, 682 P.2d 1263). (See also, Wolf v. Kaufman and Broad Home Systems, 106 Idaho 838, 683 P.2d 874 (1984); Banzhaf v. Carnation Company, 104 Idaho 700, 662 P.2d 1144 (1983); Fenich v. Boise Elk’s Lodge No. 310, 106 Idaho 550, 682 P.2d 91 (1984).
While Woodvine, Fenich, and Wolf all involved non-fully adjudicated compensation agreements, the analysis used in those cases is equally applicable in the context of lump sum agreements. Although there are valid reasons for the different standards in allowing for modification as between those two kinds of agreements, distinctions between compensation agreements and lump sum agreements are not meaningful in the context of ascertaining whether factors have been fully adjudicated. If a claim or entitlement has not been considered, fundamental fairness requires that a claimant not be precluded from being heard on the issue.
In the instant case, the lump sum agreement entered into by Harmon contains no mention of nonmedical factors used in assessing permanent disability. Indeed, Dr. Porter was never asked to, and never did, provide a permanent partial disability rating for Harmon. Further, the diagram McMillan drew illustrating the differences between compensation agreements and lump sum agreements (Appendix A hereto), while containing express mention of permanent partial impairment, contains no mention of permanent partial disability. Likewise, the lump sum agreement fails to provide for the nonmedical factors which are required in arriving at a disability rating (I recognize that there are cases wherein there may be no disability over and above impairment, but the Commission has not so found in this case, and the record establishes that under the facts of this case such a finding would likely not be made.) The Commission’s order contains one mention of Harmon’s educational background, but makes no attempt to apply that factor in analyzing any portion of the lump sum award. There is no discussion of any further nonmedical factors to be considered in the award. On the basis of the above, one can only conclude that, not only was no permanent partial disability rating done for Harmon, but nonmedical factors were not considered in the Commission’s decision to uphold the lump sum agreement.
There is language in the Commission’s order indicating that an additional deposition was presented to the Commission subsequent to the hearing. We do not have the benefit of this additional deposition in the record on appeal and therefore, do not know whether it contained any discussion of nonmedical factors. We only know that the Commission’s order contained no mention of such factors. On this basis, I can only conclude that nonmedical factors were not considered in the Commission’s opinion.
During oral argument, counsel for respondents contended that the $6,864 ex*301press award for retraining/vocational assistance in the lump sum agreement was an express award for a nonmedical factor, indicating that Harmon’s permanent partial disability had both been considered and adjudicated by the Commission in upholding the lump sum agreement. I am not persuaded by this argument. Using the rule of Curtis, supra, wherein we presume that different statutory definitions, passed simultaneously by the legislature, indicate different definitions and classifications, I can only conclude that an award for retraining is a distinct factor separate from the nonmedical factors considered in a permanent disability rating. As already mentioned, the factors salient in a permanent disability rating are enumerated in I.C. § 72-425 and § 72-430. I.C. § 72-450 provides a separate statutory definition for retraining benefits. Accordingly, any award for retraining does not indicate that the nonmedical factors pertinent to a rating of permanent disability were ever considered or adjudicated. In Lyons v. Industrial Special Indem. Fund, 98 Idaho 403, 565 P.2d 1360 (1977), Justice Donaldson writing for this Court stated:
In addition to the medical factor of permanent impairment, the Commission must also consider nonmedical factors such as age, sex, education, economic and social environment, training, and usable skills. I.C. § 72-425. The Commission’s approach in this case does not adequately consider the effect of these nonmedical factors on appellants ability to obtain employment.
Here, the insurance adjustor did not advise the claimant of the nonmedical factors, the compensation agreement did not provide for them, and the commission did not consider or award them.
Therefore, I conclude that the Commission did not adjudicate the issue of Harmon’s permanent partial disability rating, and, therefore, the lump sum agreement, binding on Harmon as to all other issues which were fully adjudicated, does not preclude further consideration by the Commission as to the amount of entitlement for nonmedical factors over and above impairment.
The Worker’s Compensation statutes provide that in certain instances the commission may, on its own motion, reopen a case — one would hope that in this case it would do so.
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