specially concurring.
This ease is reminiscent of another worker’s compensation case which was issued June 7, 1989, namely Swanson v. Kraft, Employer and Ideal Mutual Insurance Co., 775 P.2d 629. There, too, I “concurred because Justice Johnson’s opinion is well written, ... I believe the conclusion to affirm is almost inevitable.” Again, as was so in Swanson, “I am not as comfortable *655with that conclusion [to affirm] as I would prefer to be.”
I noted there, and repeat here, that, insofar as reported worker’s compensation cases are concerned, I.C. § 72-714(3), formerly I.C.A. § 43-1404, does not appear to have been utilized in Commission proceedings in the past fifty-two years — which is a long, long time for a beneficent statute to lay idle. It provides that “The Commission, or members thereof, or a hearing officer, referee or examiner, to whom the matter has been assigned, shall make such inquiries and investigations as may be deemed necessary.” This provision was last mentioned in Pierstorff v. Gray’s Auto Body Shop, 58 Idaho 438, 74 P.2d 171 (1937), where this Court stated that under the statute I.C. § 72-714(3), the Commission,
[I]s not required to remain merely passive and listen only to the evidence elicited by the parties or their counsel. It must be constantly kept in mind that it (the board) is an administrative and fact-finding body, exercising special judicial functions (In re Bones, 48 Ida. 85, 94, 280 Pac. 223; Feuling v. Farmer’s Cooperative Ditch Co., supra) [54 Idaho 326, 31 P.2d 683], and, as such, it is its duty to ascertain and produce, or cause to be produced, all the available competent and material evidence concerning any and all claims presented to it for consideration and allowance.
Rather obviously, the duty mentioned therein has not been constantly kept in mind for fifty-two years. It would be surprising indeed to find that the referee who presided when Swander’s claim was tried was aware of his authority and power to act in accordance with the unequivocating language of the statute and this Court’s case-law mandate that it was in fact his duty to do so.
One only need look at two paragraphs in Justice Johnson’s opinion to ascertain the need for independent medical testimony to have been acquired by the referee. Dr. Rudd’s testimony (paragraph 9) is noted to have not offered “an opinion specifically stating that Swander’s activities on June 23, 1986, had likely caused the free fragment. When he was asked by defense counsel on cross-examination, Dr. Rudd agreed that he was unable to determine when it had occurred or the cause of the free fragment with a medical probability and that a determination would be in the realm of speculation.” Dr. Daines’ opinion for the defense (paragraph 10), was:
[T]hat the findings at surgery were compatible with a longstanding problem and not an acute injury. He pointed out that Swander had reported symptoms on the right side prior to June 23, 1986. This caused him to conclude that the free fragment was causing symptoms prior to Swander’s alleged accident of June 23, 1986, and was not broken free by that accident. He believed that it would be merely speculation to attribute the cause of the free fragment to Swander’s activities on June 23, 1986.
116 Idaho p. 654, 778 P.2d p. 776.
The purpose of § 72-714(3) is to achieve justice. To further that purpose this Court in Pierstorff held that the commission or any of its personnel conducting hearings had the duty to see that the statute fulfilled its promise.
When Dr. Rudd would not, or could not, in his good conscience, answer the question “with a degree of medical probability,” Swander could not make out his case. But, was it just Swander’s case? Worker’s compensation hearings are primarily administrative affairs, not trials. An injured claimant is entitled to sure and certain relief. The referee in the first instance, and the Commission in the second, because of the reluctance of Swander’s only medical witness, had excellent grounds to cause him to be examined by a Commission-appointed doctor. By so doing the Commission would have its own independent evidence concerning the claim presented to it for consideration and allowance. As made abundantly clear by Justice Johnson’s recitation of the required surgery, and the results, such evidence was highly indicative of Swander having had an industrial injury at or near the time to which he could point. The referee did not make a *656finding that the back injury was not work related. This was indeed an appropriate case where all doubt could be put to rest by utilization of examination and report by a Commission-appointed independent medical examiner who would have access to the medical reports, findings and opinions of the doctors who did testify.