concurring in part, dissenting in part.
The Chief Justice is right on in disagreeing with the I.S.I.F. contention that the settlement agreement entered into between claimant and defendants did not moot the other controversy between the I.S.I.F. and the employer/defendant Red Lion Inn-Riverside. As to the second issue, there is no reason not to stand fast behind my opinion in Hartley v. Miller Stephan, 107 Idaho 688, 691-92, 692 P.2d at 332, 335-36 (1984). The rationale of my dissent is equally as applicable here as it was in Hartley.4 Insurance companies engaging in the selling of workers’ compensation insurance are clearly entitled to take a shot at the I.S.I.F. for indemnification.
The Chief Justice’s opinion, with enough ready concurrences to constitute a majority opinion for the Court, accepts the referee’s conclusion that there is insufficient evidence to establish any identifiable cause for the claimants’ obviously reduced intellectual function. The Commission itself so recognized and adopted the referee’s conclusion. The competing medical experts were a psychiatrist and a neuropsychologist, the latter being of the opinion that the *468claimant did suffer from an organic brain syndrome; meaning that there must be some brain tissue damage, impairment, or disfunction. The psychiatrist found no such evidence, and specifically expressed a contrary opinion. The result which is most troublesome is the total lack of any explanation for the inaction of the referee, and, in turn the Commission in seeking a third opinion. Neither exercised the statutory power to retain a neutral, knowledgeable third expert witness who would not feel compelled to testify as a retained advocate of the claimant, the defendant/surety, or for I.S.I.F., but simply to be of assistance to the Commission in its evaluation of claimant’s condition, the cause, and probabilities as to her future.
If commanding a majority, my proposed conclusion, and one fair to all parties involved, would be to abate our review and remand to the Commission with directions that there be appointed a neutral expert to examine claimant Huffaker and furnish a written report wholly independent of any input from the prior testimony of the other advocating experts; thereafter, that there be a final hearing before the referee where counsel could present final arguments. Statutes are now and have been in place which provide for such a procedure. A statutory enactment, § 6266, last codified as I.C. § 43-1405, provided both for the Commission’s appointing of physicians and the state’s payment of fees and traveling expenses.
Although § 6266 was subsequently repealed, in its place there are now sections in tit. 72, ch. 5 of the Idaho Code, which are more encompassing. Particularly given recognition therein, per I.C. § 72-513, are provisions for appointing hearing officers, medical officers, counselors, examiners, and referees, plus a broad grant that the Commission is empowered to employ additional needed officers. The controversies which come before us do not evidence that the Commission is at all aware of the broad authority the legislature has granted it. These factors lead me to suggest the likelihood that this instant litigation was far more expensive in attorney fees and costs than it would have been had the Commission or the referee brought in a third expert, one upon whom the parties would agree, or if not, then an expert in the field, known to be fair and impartial. The statutory procedures are in place and available.
A benevolent act on the part of the Commission would be to utilize the services of the many competent compensation law practitioners and, in concert, ascertain how the Commission might better serve the state as a whole, and injured workmen in particular. Another proper concern of the Commission would be the degree of disparity of bargaining power and resources as between the claimant versus the surety for the employer. The very evident purpose of the Workers’ Compensation Law was to benefit the worker by reducing the oppression he or she would face in litigating a tort claim of negligence and offering an administrative procedure for pursuing the claims (certain and sure relief). The legislators passed a statute which facially assured a worker that a surety guilty of resisting a claim for compensation without good cause, would be liable for payment of claimant’s attorney fees. We will see how that turns out.
. My opinion in Hartley v. Miller-Stephan, 107 Idaho 688, 692 P.2d 332 (1984), is appended hereto as "Attachment A.”