concurring specially.
I concur in the majority opinion and write only to distance myself from what I respectfully believe to be the misunderstanding of I.C. § 72-706(2) exhibited in Justice Johnson’s special concurrence.
Nothing in our workers’ compensation statutes say anything about the “fifth year anniversary” of an accident. This language, thus far, is wholly a judicial product, and as I hope to now explain, an unfortunate jurisprudential journey into the legislative domain which undermines the rights of working people.
An illustration will help explain the misconceptions behind the “fifth year anniversary” language. Suppose Bill injures his back January 1, 1980. All doctors who *794examine Bill state that he is impaired to the extent of 10 percent of the whole person. Bill’s back heals pretty well after he visits his doctor, and, on December 31, 1984, Bill’s income benefits are exhausted and his medical costs are fully paid.
However, on January 2, 1985, more than five years from the date of the original injury, Bill’s back again goes out. All doctors agree that Bill is now impaired to the extent of 30 percent of the whole person. Because all doctors also agree that the recurring pain is solely the result of the original accident, the surety pays Bill’s new medical bills.
Under the analysis adopted by Justice Johnson, because Bill was not receiving compensation on the “fifth anniversary of the accident,” his request for a hearing to determine additional impairment and/or disability would not be timely.
Under our workers’ compensation statutes, however, the “five year anniversary” is irrelevant. Pursuant to I.C. § 72-706(2), Bill would have had “one (1) year from the date of the last payment of compensation” to file for a rehearing.1 Because Bill’s last payment of compensation (medical bills) was made after January 1, 1980, Bill would have one year from the date of .final payment to file for a hearing.
Thus, unlike Justice Johnson, I do not conclude that I.C. § 72-706 “necessarily implies” that payments need be made on the judicially created “fifth anniversary.” Walters v. Blincoe’s, 17419 Idaho (1989). Such an “implication” is a judicial construction which vitiates legislative intent. I hope the Commission and working people of Idaho are not compelled to conclude that the “fifth anniversary” language, which has somehow meandered its way into our case law, is immune from appellate criticism or reconsideration.
It is vital to note what a claimant in such a case is asking for — a hearing. He or she is not requesting a seat on the New York Stock Exchange. It’s clear to me that doubtful procedural disputes should be resolved with an eye toward granting a hearing on the merits. The claimant still carries the burden of proof and persuasion; a mere hearing does not guarantee further benefits.
If the unfortunate rule of Walters v. Blincoe’s persists, I suggest that claimant have drafted into their compensation agreements the following language:
The parties have in mind the case of Walters v. Blincoe’s. In order to mitigate the harsh effects of that case, the parties agree that a fund of $_will be reserved to be paid as follows to claimant: $1 on the fifth anniversary of claimant’s injury and $1 each month thereafter until exhausted.
One should note the underscored words in the statute: “if compensation is discontinued more than five years from ...” Justice Johnson’s opinion in Walters v. Blincoe’s, 17419 Idaho (1989) (in which I concurred) would judicially write the words “more than” out of the statute. His special concurrence here would do the same. I am embarrassed that I did not pick up on the import of the sentence of Walters, supra, which stated:
This latter portion of the statute referring to the discontinuance of compensation necessarily implies that the compensation was being paid on the fifth anniversary of the accident and was thereafter discontinued.
Such is neither what the statute says nor what it implies. Stare decisis is a commendable principle in most instances — but not where we are dead wrong and can correct the error before substantial re*795liance by bench and bar has become placed upon it.
. Idaho Code § 72-706(2) provides in full:
When compensation discontinued. When payments of compensation have been made and thereafter discontinued, the claimant shall have five (5) years from the date of the accident causing the injury or date of first manifestation of an occupational disease, or, if compensation is discontinued more than five (5) years from the date of the accident causing the injury or the date of first manifestation of an occupational disease, within (1) year from the date of the last payment of compensation, within which to make and file with the commission an application requesting a hearing for further compensation and award.
(Emphasis supplied.)