specially concurring.
I concur in the Court’s opinion. The Commission’s factual findings are supported by substantial and competent evidence and Serrano has failed to show otherwise. Indeed, only a minuscule part of Serrano’s opening brief was devoted to that issue. Almost two-thirds of the brief was directed at the Commission’s pre-hearing order that “the Claimant’s claim for PPD benefits shall be omitted as an issue on the claim currently before the Commission.” The Commission explained:
Since Claimant has refused to provide Defendants with a response to discovery intended to ascertain Claimant’s immigration status, and since Claimant’s status is relevant to Claimant’s entitlement to disability in excess of impairment, an appropriate sanction for Claimant’s refusal to comply with the discovery order is the striking of his claim for disability benefits from consideration for so long as he continues to refuse to respond to Defendants’ discovery requests.
Serrano devotes 37 pages of his opening brief to an attack on this order, claiming that it was a violation of his Fifth Amendment rights to require that he disclose his immigration status and claiming that it had no bearing on his entitlement to PPD benefits.
Serrano’s counsel had no justifiable grounds for failing to answer Respondents’ discovery regarding Serrano’s immigration status. It is somewhat understandable that counsel would resist in light of the Commission’s decision in Jesus Diaz v. Franklin Building Supply, I.C.2006-507999 (Idaho Ind.Com. Nov. 20, 2009). A majority of the Commission decided, in effect, that an undocumented worker’s compénsation claimant cannot qualify for permanent disability benefits because he is not legally eligible to obtain lawful employment in the United States. Commissioner Baskin concluded otherwise, filing a dissent worthy of note. It is unknown why Diaz did not appeal the decision in his case. Likewise, it is unclear why Serrano did not answer the propounded discovery, provide full details of his immigration status, and appeal to this Court in the event his claim was rejected based on the holding in Diaz.
*320The immigration issue is not presently before the Court but, nevertheless, Commissioner Baskin’s dissent is instructive on the issue. In relevant part, he said:
The parties have conceded, and the majority has found, that Claimant is a covered employee subject to the provisions of the [Worker’s Compensation] Act under Idaho Code § 72-204, notwithstanding that his employment is “unlawful.” I agree with this conclusion despite the fact that there is some difficulty in ascertaining what the Legislature intended in crafting the provisions of Idaho Code § 72-204. That section provides:
“72-204. Private employment — Coverage. — The following shall continue employees in private employment and their employers subject to the provisions of this law:
(1) A person performing service in the course of the trade, business, profession or occupation of an employer.
(2) A person, including a minor, whether lawfully or unlawfully employed, in the service of an employer under any contract of hire or apprenticeship, express or implied, and all helpers and assistants of employees whether paid by the employer or employee, if employed with the knowledge, actual or constructive, of the employer.
(3) An officer of a corporation.
(4) “Employment,” in the case of private employers, includes employment only in that trade, business, profession or occupation which is carried on by the employer and also includes any of the pursuits specified in section 72-212, Idaho Code, when the employer shall have elected to come under the law as provided in section 72-213, Idaho Code. [I.C., § 72-204, as added by 1971, ch. 124, § 3, p. 422; am. 2006, ch. 213, § 1, p. 688.]
(Emphasis added.)
With respect to the provisions of Idaho Code § 72-204(2), there is some difficulty in ascertaining whether the language “whether lawfully or unlawfully employed” is intended to modify “a minor” or “a person.” If [a “person”], then the parties, and the majority, have correctly discerned the intention of the Legislature, and the provisions of the Act apply to all employments generally, whether lawful or unlawful. However, if the language in question is intended only to modify the term “a minor,” then the provisions of Idaho Code § 72-204 do not lend support to the proposition that the Act applies to all employments, regardless of whether they are lawful or not.
If it was Legislature’s intent that the modifying language apply only to minors, it could have crafted the statute differently to make this clear. For example, the Legislative could have stated: “a person, including a minor lawfully or unlawfully employed,____” That the Legislature intended the modifying language to apply to all employments, is also suggested by the provisions of Idaho Code § 72-212. That section exempts certain employments from coverage under the Act, such as casual employment, the employment of domestic servants, etc. If the language “whether lawfully or unlawfully employed” was intended by the Legislature to only modify the term “a minor,” then Idaho Code § 72-204 provides no guidance on the question of whether other unlawful employments are subject to the provisions of the Act. This would have provided the Legislature with the opportunity to address whether other unlawful employments are exemption from coverage pursuant to Idaho Code § 72-212. This, the Legislature failed to do, which further supports the conclusion that the modifying language of Idaho Code § 72-204(2) was intended to apply to all employees, and not just minors. For these reasons, I agree with the majority that under the provisions of Idaho Code § 72-204(2) Claimant’s unlawful employment is a covered employment under the Act. However, as developed below, I disagree with the majority in its treatment of Claimant’s status as an undocumented worker in assessing his entitlement to an award of disability benefits.
Defendants argue that as a prerequisite to the Commission’s consideration of permanent partial disability, Claimant bears the burden of first demonstrating that the disability is, at least in part, referable to the *321accident [-] produced permanent partial impairment. I believe this is a correct reading of the provisions of Idaho Code §§ 72-423 and 72-425. However, Defendants further argue that since Claimant’s immigration status leaves him altogether unemployable in the United States, he cannot meet his burden of demonstrating that his loss of earning capacity is, in some respect, caused by his permanent partial impairment.
[The Referee] accepted this argument, concluding that whatever accident [-] produced disability Claimant may have suffered as a result of his permanent partial impairment and related limitations is subsumed by the fact that he has no legal access to the labor market on a post-injury basis. Adopting [the Referee’s] decision, the majority reasons that if Claimant cannot legally work in the United States subsequent to the subject accident, then the physical impairment which would otherwise cause some additional disability is rendered irrelevant.6
The majority opinion is premised on the assumption that Claimant’s lack of legal access to the labor market equates to an actual lack of access to the labor market. This, I believe, ignores facts taught by common experience, facts of which the Industrial Commission must take notice; a real and significant labor market exists for undocumented workers in this state.
One need look no further than the facts of the instance matter to find the confirmation of this conclusion. Claimant, who admits to being an undocumented worker, came to the United States in approximately 2004. He lived in Phoenix for one year and found employment performing landscaping work. He then moved to Idaho, where he worked in painting preparation for about a year. In early 2005, Claimant applied for and obtained employment at Franklin Building Supply. Claimant testified that his immigration status has never prevented him from getting a job since he moved to the United States in 2004.
In support of its decision, the Majority has held that in evaluating disability exposure, the Commission is limited to considering the injured worker’s ability to engage in lawful activity. The majority reasons that in assessing disability, no one would argue that consideration should be given to an injured worker’s ability to work as a hit man, or traffic in illegal drugs, even though such gainful opportunities assuredly exist. By analogy, neither should the Commission consider the fact that undocumented workers may be able to find gainful employment, since such employment is illegal. I would distinguish the hiring of illegal aliens for otherwise lawful work, from the other illegal activities discuss in the majority opinion. These “employments” are illegal due to the nature of the activity involved. The employment of Claimant is illegal, not because of any impropriety associated with the gainful activity, but rather, because of Claimant’s status as an illegal alien. In performing its assessment of Claimant’s disability, for the Commission to recognize that Idaho employers, wittingly or not, employ undocumented workers does not “offend justice, condone illegal activity and dramatically alter the meaning and evaluation of disability.”7 ____ Indeed, I believe that to ignore the facts plainly before us, in favor of the fiction that illegal aliens have no labor market in this state, does more to imperil our obligation to fairly administer the *322workers’ compensation laws. Within the ambit of our narrow jurisdiction, the Commission must treat all facts relevant to the determination of Claimant’s loss of earning capacity.
Idaho Code § 72-425 provides:
“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 as provided in section 72-430, Idaho Code.”
As the majority has found, Claimant’s status as an undocumented worker must be included among those “nonmedieal” factors which the Commission is required to consider when assessing the vocational impact of Claimant’s permanent partial impairment. However, I believe the majority erred when it concluded that Claimant’s status as an undocumented worker forecloses consideration of whether he has a labor market in this state notwithstanding his immigration status. The fact that undocumented workers are employed in this state is, as well, a nonmedical factor which the Industrial Commission must grapple with when assessing Claimant’s disability. How then should Claimant’s status as an undocumented worker be treated by the Commission in evaluating Claimant’s disability? Some jurisdictions that have addressed this issue have determined to evaluate the injured worker’s disability by ascertaining what employment opportunities would be available to the undocumented worker “but for” his or her immigration status. See, Gayton v. Gage Carolina Metals, Inc., 149 N.C.App. 346, 560 S.E.2d 870 (2002); Economy Packing Company v. Illinois Workers’ Compensation Commission, 387 Ill.App.3d 283, 327 Ill.Dec. 182, 901 N.E.2d 915 (2008). Under this approach, the Commission would ignore Claimant’s immigration status and evaluate his disability under the assumption that Claimant is legally entitled to hold employment in the United States. The same criticism I have made of the majority opinion could as well be made against this approach; in both cases, the fact that Claimant is an illegal alien, and the fact that a labor market exists for illegal aliens, is ignored in favor of an all-or-nothing approach.
An approach to evaluating disability in these cases that is more consistent with the humane purposes of the Act requires recognition of the fact that Claimant’s status as an illegal alien limited (but did not foreclose) his access to the labor market on both a pre-injury and a post-injury basis. Claimant is an unskilled laborer. He does not speak English. The vocational evidence adduced at hearing, and discussed in the reports of Barbara Nelson and Mary Barros-Bailey, suggests that Claimant is not possessed of education or transferrable job skills that would allow him to compete for anything but unskilled labor in the United States. Certainly, his pre-injury employment history in the state of Idaho supports this conclusion. As such, Claimant’s pre-injury labor market in Idaho consisted of those unskilled jobs which Claimant was physically capable of performing and which were available to Claimant, his status as an undocumented worker notwithstanding.
Obviously, on a pre-injury basis, Claimant’s labor market did not include all unskilled work which he was physically capable of performing. Some of the work that Claimant was otherwise qualified to perform on a pre-injury basis was unavailable to him simply because Claimant’s false documentation would not have survived vetting by some potential employers.
In conclusion, the statutory scheme anticipates that the Commission will consider all *323relevant non-medical factors when assessing disability in a particular case. This, the majority has failed to do. By failing to recognize that a labor market exists for undocumented workers, the majority opinion denies Claimant the compensation to which he is entitled under the Act. Claimant’s status as an undocumented worker should not, as a matter of law, foreclose consideration of the issue of disability.
Chief Justice BURDICK concurs.. It is tempting to search for an explanation for the decision to award Claimant 0% disability in the assertion that he did not apply himself to a' job search after his industrial injury, and therefore his loss of earning capacity is entirely "volitional.” In fact, Claimant testified that he did look for work following his industrial injury, but that he was hampered in this search by his limitations. More to the point, if this case really is like Ruiz v. Blaine Larson Farms, Inc., 2006 IIC 0314, then the Commission’s lengthy discussion of the legality of Claimant’s employment in the United States would be unnecessary. Clearly, this case was decided not on the basis of Claimant’s work search, but rather on the basis of his status as an undocumented worker.
. Although it is not within the statutory authority ¡ of the Industrial Commission to enforce the provisions of the Immigration Reform and Control Act of 1986 (IRCA), it is worth noting that the majority decision may do more damage to the policy behind that Act, and actually incentivize employers to continue to hire undocumented workers. If, as the majority has found, undocumented workers are not entitled to disability beyond impairment, one is forced to recognize that these savings will be enjoyed by someone, i.e. the *322employer, or its surety. Instead of discouraging the hiring of undocumented workers (if that is part of the majority's intent in adopting the Referee’s decision) the decision actually provides an additional incentive to perpetuate the status quo. Similarly, it seems quite plausible that in specifying that the Workers' Compensation Laws of this state apply to all employees "whether lawfully or unlawfully employed,” the Legislature actually intended to discourage employers from engaging in unlawful employment. See, Idaho Code § 72-204(2). If those who are unlawfully employed enjoy the same benefits as the lawfully employed, then, arguably, employers will not enjoy any savings by virtue of the unlawful employment of another.