dissenting.
My conscience will not allow me to put my approval on any opinion which would sustain the Commission and its referee in this case. Accordingly, it is proper to briefly explain why the ratio decidendi of the Commission is wholly unacceptable, not just to me, but to any practitioner who is abreast of current compensation law. In my view, the Commission should have calculated McClurg’s permanent partial disability benefits by subtracting his current earnings from what he would have been earning at the machine shop. Such a result would be totally consistent with the Court’s decision in Baldner v. Bennett’s, Inc., 103 Idaho 458, 649 P.2d 1214 (1982).
Claimant’s brief in response to surety’s contentions succinctly stated:
There is nothing in Baldner v. Bennett’s, Inc. that prohibits a comparison of claimant’s present actual earnings to what claimant’s present earnings would have been in his former employment, had he not been injured.
Claimant added thereto, “Comparison of present earnings is equitable and appropriate because it takes into account the effects of inflation and periodic wage increases.”
The referee, in writing the Commission’s decision, acknowledged that claimant at the time of the accidental injury was earning $11.15 per hour, and thereafter, following a retraining program, earned only $8 per hour. Conclusion of law IY scoffs at the claimant’s contention “that the Commission should consider the wages of two current employees at Yanke Machine Shop, rather than claimant’s wage at the time he was injured, in establishing his loss of wage-earning capacity.” Unbelievably, the Commission elected to let stand the following specious rationale advanced for it by the referee:
There is no statutory authority nor case law to support this argument. Such a comparison is entirely speculative since there is no guarantee that Claimant *177would have continued working at Yanke, and there is no guarantee that Claimant would have received the same raises the current employees have received.
The single distinguishing feature of the two cases is that in Baldner we had an experienced referee who knew the expressed purposes of compensation law, and we had a Commission equally blessed. Neither the then-referee nor the then-Commission would have issued an opinion holding against a worker based on the slender premise that there is no guarantee that a claimant would have continued working where he had worked. In McClurg’s case, he had worked for Yanke for sixteen (16) years and over that span of time had been regularly elevated in pay and position to that of lead painter, which in Yanke’s operation would be comparable to the head honcho over all other painters. To conclude that someone with sixteen years of satisfactory service to one master would continue to be employed three years later is about as much “speculation” as saying the sun will rise tomorrow. It might not, and McClurg might have quit his job or been fired, but in all likelihood the sun will rise tomorrow and, barring his injury, McClurg would have risen with it to go to work at the machine shop. This one justice, speaking as one of the two surviving members of the Court who were sitting on the Baldner case rests assured that Justice Shepard, were he here today, would be the first to take pen in hand to scourge any scoundrel brashly dealing so devilishly with his Baldner decision.
In our recent opinion in Loya v. J.R. Simplot Company, 120 Idaho 62, 813 P.2d 873 (1991), we stated that
Baldner stands for the proposition that the comparison of pre-injury and post-injury incomes is relevant evidence, although not the exclusive method of evaluating the non-medical factors set out in I.C. § 72-j25 in arriving at the ultimate determination of permanent disability evaluation.
(Emphasis added.)
Surety’s post-hearing brief submitted to the referee acknowledged that the Idaho Supreme Court in Baldner approved the method of utilizing a comparison of pre- and post-injury earnings, and in the following paragraphs said as to MeClurg’s claim, “in the absence of testimony as to loss of access to the labor market or other basis for determination of disability, the method utilized in Baldner would seem appropriate.” R. 18. Notwithstanding that commendable concession, the referee’s written decision declared as a virtual pronouncement that claimant’s attempt to utilize the present wages to two employees at Yanke to establish what a non-injured McClurg would have made, but for the industrial accident injury, was entirely speculative. The referee sought to bolster her pronouncement: “First of all, such a comparison is entirely speculative since there is no guarantee that the claimant would have continued working at Yanke____” R. 19. The third link in the pronouncement followed almost immediately: “There is no provision for speculation in determining lost wages.” That statement is then in turn supposedly supported by the surety’s assertion that:
The Supreme Court, in affirming the comparisons utilized by the Industrial Commission in Baldner v. Bennett’s, Inc., did not condone the use of speculation but affirmed the use of a preexisting salary, i.e., one which was actually earned, for comparison with postinjury income.
(Emphasis added).
The decision of the referee, in turn adopted by the Commission, if left to stand, is a very serious inroad on an innovative legal precedent carefully thought out by Justice Shepard. Moreover, one must keep in mind that this is not a tort case seeking damage for alleged negligence. Jeff McClurg had only one avenue of relief after incurring disabling injuries while in the employ of Yanke Machine Company. The Idaho legislature had wisely constructed the statutory framework for a system insuring that there would be “sure and certain relief for workmen and their families *178and their dependents ... regardless of questions of fault.” I.C. § 72-201. That noble promise cannot long persist if the Court fails to demand of the sureties and the Commission that statutory provisions be adhered to, and, equally important, that the Commission is not free to ignore precedential case law announced by the Supreme Court.
Process and procedure under the Workmen’s Compensation Act are designed to be a summary and simple as is reasonably possible. I.C. § 72-708. As this Court has held many times, the Act is to be construed liberally in favor of a claimant. The humane purposes which it seeks to serve leave no room for narrow, technical construction.
Hattenburg v. Blanks, 98 Idaho 485, 567 P.2d 829 (1977) (emphasis added).
No merit is discernible in the argument which the surety advanced to the referee, and to which the referee and the Commission blindly succumbed. What clearly appears is that claimant McClurg was no less a dedicated employee of Yanke than Baldner a dedicated employee of Bennett’s, Inc. McClurg’s history parallels Baldner’s. On being struck by the adversity of industrial injury which deprived both of a livelihood, and accepting such misfortune without lament, each began training which has taken him forward into new careers. Neither was content to be a kennel hound.
Today, over ten years later, the majority upholds the Commission in McClurg’s case. But not one of them has pointed to any distinction which can be drawn, other than the referee’s tom-foolery in McClurg’s case evidenced by making nonsensical statements such as, “there is no guarantee that the claimant would have continued working at Yanke.” Perhaps one of the affirming foursome will step boldly forward with a reasoned enlightenment of the referee’s remarkable rationale by which the Industrial Commission deprived McClurg of his right to be accorded equal treatment in light of Baldner.