dissenting.
The majority opinion accurately states that the Commission clearly relied on and essentially adopted the testimony, diagnosis and conclusion of Dr. Holt — rejecting the testimony of the other professional experts who testified favorably to the claimant. Citing the 1982 Houser case and the earlier 1965 Arnold case, the majority opinion affirms the Commission, and the claimant is, for sure and certain, denied all relief. The opinion quotes verbatim a passage from Houser, inadvertently not noting that part of it only was attributable to the earlier Arnold case.
The Court’s opinion in Houser reads thusly:
The fact that a greater number of witnesses supported a view different from the conclusion reached is of no moment in determining the preponderance of the evidence. Arnold v. Splendid Bakery, 88 Idaho 455, 401 P.2d 271 (1965). Rather, the determination must be based on an assessment of the reliability, trustworthiness, and probative value of the evidence. As such, the determination is in the first instance a question of fact committed to the particular expertise of the Commission; and its determination as to the weight and credibility of the testimony is conclusive on appeal unless it appears to be clearly erroneous. Arnold v. Splendid Bakery, supra. Claimant has failed to make such a showing, and therefore, it cannot be said that the Commission erred in its conclusion that claimant had failed to meet his burden of proof.
Houser v. Southern Idaho Pipe & Steel, Inc., 103 Idaho 441, 445, 649 P.2d 1197, 1201 (1982).
What the Arnold Court actually wrote was only this:
The fact that the Board may have given more weight to the testimony of some doctors in its determination of the extent of respondent’s permanent disability is not grounds for reversal if the findings are supported by competent and substantial evidence.
Arnold v. Splendid Bakery, 88 Idaho 455, 462, 401 P.2d 271, 278 (1965).
The complete passage in Arnold reads this way:
The fact that the Board may have given more weight to the testimony of some doctors in its determination of the extent of respondent’s permanent disability is not grounds for reversal if the findings are supported by competent and substantial evidence. Each of the doctors who testified at the hearing did not have the same opportunity of observation and examination of respondent as did Dr. Burton. Dr. Taylor had seen and examined respondent only once; Dr. Coughlin had seen and examined respondent twice; and Dr. Shaw had seen and examined respondent four times, during the eleven years following the accident. She had been under Dr. Burton’s care and treatment since July 1956 and he had filed forty-five written reports of her condition with the Board prior to the hearing.
Arnold, supra, 88 Idaho at 462, 401 P.2d at 278 (emphasis added).
A distinction of note between this Cox case and Arnold is that the Court in Arnold upheld the Commission’s award to the claimant. The issue before the Commission and then the Court was the extent of Mrs. Arnold’s permanent disability. The Court succinctly portrayed the background of that case:
This record discloses that during the eleven years intervening the accident resulting in respondent’s injury and the final hearing before the Board respondent was examined by fourteen doctors, nearly all of whom were orthopedic physicians and surgeons. The unrefuted medical history of respondent during said eleven years discloses that she has undergone five surgical procedures consisting of laminectomies and fusions, together with three myelograms. She has suf*327fered almost continuous pain for relief from which she takes medication almost daily.
Arnold, supra, 88 Idaho at 460, 401 P.2d at 276.
Dr. Burton and Dr. Gardner rated her respectively as “totally disabled for gainful employment,” and “I don’t think she will go back to work, or that she will be able to carry on more than just temporary work.” Arnold, supra, 88 Idaho at 460, 401 P.2d at 276. Obviously, the Commission went with the treating doctor, Dr. Burton. The surety’s production of three witnesses to Mrs. Arnold’s two did not carry the day. Nor should it have.
Mr. Houser’s knee injury was treated surgically by Dr. Michael Phillips, an orthopedic surgeon, and tom cartilage was removed (a meniscectomy). About a year later, Dr. Keith Taylor, also an orthopedic surgeon, performed arthoscopic surgery of the same knee in January of 1979. The two doctors both rated Houser’s physical impairment at ten percent compared to the loss of the leg at the hip. Dr. Slickers, the Houser family doctor who had referred Mr. Houser to Dr. Phillips, testified only that he did not believe that Mr. Houser could return to his usual diesel mechanic occupation. On appeal, the contention was primarily aimed at the Industrial Commission’s conclusion that Mr. Houser had failed to provide evidence of any disability in excess of the ten percent permanent impairment. For a view that the Commission erred in not awarding disability in excess of physical impairment, see the separate concurring and dissenting opinion of Bistline, J., 103 Idaho 441, 649 P.2d 1197, a view which it is believed would have also been shared by Justice Huntley, had the case been heard one year later.
Houser’s disability case before the Commission consisted largely of his testimony and that of his wife. (Another issue in the case on appeal had to do with a knee-related back issue, determined against Mr. Houser on grounds of res judicata.)
Other than for the failure of the Court and the Commission to give proper regard to nonmedical factors in setting Mr. Houser’s disability, neither I nor anyone should have any problems with the Houser case. Today’s reliance on the quoted statement from it set out in the opinion will be seen as meaningless. Two orthopedic surgeons evaluated Mr. Houser’s medical impairment at ten percent. Both were his treating physicians, not after-the-fact impairment evaluators who had no prior contact with him. Why the Court’s opinion in that case even cited Arnold was and remains beyond my ken. Certainly the facts of Houser offer little to substantiate the majority opinion in this case.
Arnold, however, is on point. In Arnold, the Commission awarded, and this Court in turn sustained, compensation benefits. In doing so, both rejected a theory advanced by the surety that three witnesses beat two. The Court there did not do that on a basis of superiority or lack of superiority of numbers — but on the basis that Dr. Burton and Dr. Gardner were better positioned to give the more valuable evidence — as the portions of that opinion related above readily show. This, philosophically, was judicial recognition of substantial evidence. And it is what these compensation cases should revolve around.
Today, however, misusing Arnold, misusing Houser, and in all likelihood doing so inadvertently, the Court sustains the Commission in its having turned aside all qualified claimant experts in favor of one after-the-fact expert hired by the surety. The timing could not be any better, coming as quickly as it does on the heels of the new majority opinion in Hazen v. General Store, 111 Idaho 972, 729 P.2d 1035 (1986) (rehearing denied 12/12/86). There the Court set the precedent for accepting as substantial evidence, available for defeating a claim for compensation, the testimony of a nontreating doctor in answer to a convoluted hypothetical question which did not equate with the facts presented. That doctor had been requested by the surety to see Mrs. Hazen for purposes of evaluating Mrs. Hazen’s residual permanent disability long, long after she had been surgically *328treated and healed. Until that time, he had never seen nor heard of her.
Today’s case is on a par, and I for one decline to adopt the philosophy that there is any validity in calling the type of testimony here presented as being that “substantial” that it can prevail over all other expert professional testimony of witnesses who dealt with this claimant on a regular basis at the time she had the experiences which led to her inability to work.
The precedent being set is disastrous to the whole area of compensation to working men and women who are deserving of the sure and certain compensation promised them. Unless this Court retreats from the philosophy espoused today, the sureties of this state will have a field day until the day the legislature or the people intervene.
At the least, I sincerely hope that what I have written today sufficiently demonstrates that neither Arnold, nor Houser can be said to justify the Court’s judgment.