specially concurring.
I agree with the majority’s inevitable conclusion that substantial and competent evidence supports the referee and Commission’s conclusion that Koester failed to meet her burden of proof as to her injury occurring within the scope of her employment. This special concurrence is to express my unease at the referee’s overall approach and to suggest some changes in the way workers’ compensation cases are appealed to the Commission.
In the summer of 1992 the Court issued its opinion in Trapp v. Sagle Volunteer Fire Dept. v. State Insurance Fund, 122 Idaho 655, 837 P.2d 781 (1992). That controversy bore interesting similarity to Debi Koester’s present action and is noteworthy for the fact that the final decision there, as here, was authored by referee John Bau-man. As inferentially noted in the opinion of Justice Silak, the Industrial Commission did not preside nor participate at the hearing where evidence was presented by Debi Koester. It rather assigned that task to Mr. Bauman. As the Court’s opinion points out, in Koester’s case Mr. Bauman fashioned the findings of fact, conclusions of law, and proposed ordér for the signature of the Commissioners:
[T]hat Koester had failed to meet her burden of showing that her first disability resulted from an injury which occurred in the course or scope of her employment. Therefore, the referee concluded, it was not necessary to determine whether Koester had Lyme disease.
The referee concluded that Koester could not identify what bit her, or when, and it was impossible to ascertain whether the insect bite which caused the Lyme disease occurred on the job or somewhere else. The referee found that although the conditions in the client’s home were deplorable and the client and many cats lived in filthy conditions, the evidence showed that the client was bedridden, the cats were never allowed to leave the trailer, and there was no evidence from which to infer the presence of ticks or lice in the home. During 1988, Koester and her family lived in a residential area of Potlatch with two large fir trees in the backyard, grass in the yard, lilac bushes along the side of the house, and other trees growing at the edge of town. Koester owned two outside pets and one inside pet. Koester’s husband was logging during the months of May, June and July of 1988, and when he was working, he was in the woods; he started back to work after ‘breakup’ and would return home each night after work. Based on this evidence, the referee found that Koester ‘may actually have been more likely to encounter ticks in her home than in the client’s home where she claims to have been bitten.’ Therefore, the referee concluded, Koester had failed to meet her burden of proving that she contacted, and was bitten, by a tick or louse in the course or scope of her employment.
Op. at 207-208, 858 P.2d at 746-747 (emphasis added). The referee is readily seen as overindulging in the mere surmise that Koester was more apt to encounter ticks in her home than in the home of the bedridden woman with “many cats living in filthy conditions.” The purported finding which the referee wrote suggesting that “Koester may have been more likely to encounter ticks in her own home than in the client’s home” is naught but sheer and whimsical speculation, and is of questionable necessity in resolving the claimant’s case. The Commission, in its merely accepting and adopting the views of its referee, is seen as rather lackadaisical.
Bauman, however, was not lax in performing his assigned function of writing a set of findings of fact, fifty-seven to be exact, followed by seven conclusions of law. ' His performance concluded with his recommendation “that the entire Commission adopt the following proposed Order” (which he had drafted) consuming but approximately fifteen lines, and which fa*211vored claimant Koester very little, if any. There is no way of knowing to what extent, if any, the Commission labored in its review of the referee’s findings and conclusions. Unlike the Trapp controversy, cited above, where two referees participated as hearing officers, with input from both, here Mr. Bauman was solely in charge with free rein to write as he chose.
That foregoing observation suggests the further thought that there may be good reasons, presently existing, for considering an entirely new format for hearings on industrial accident claims different from the current format, where the Commission performs no function other than, as here, to await the referee’s report of his findings and conclusions and favorably adopt and approve the same, or not do so. As illustrated by the case at hand, it is becoming more and more clear that the Workers’ Compensation Act, as presently administered, may not be directed at providing the sure and certain relief to the worker, which was the legislature’s promise in enacting the Workers’ Compensation Act of 1971.
Far better, it is seriously suggested, that controversies such as the instant Koester case and the prior Trapp case should require further hearings before the Commission itself by way of or on appeal from the referee’s decision; there competent counsel other than the attorneys who appeared as such at the referee’s hearing would actually advance, first, the case for the claimant, and second, the case for the defense. Perhaps a third participant, a wholly neutral but well-informed compensation counsel, would round out a trio of experts which would be well positioned to furnish the Commission with a wholly neutral recommendation.
Speaking only for myself, in the year 1992 and now this year of 1993, there is good reason for concern as to workers’ compensation claims decisions which essentially are, as here, the product of one person’s views, knowledge, and ability. Hopefully, a better day will arrive when three referees, if not three Commissioners, not only decide, but preside, as well. Here in Koester’s case that day had not arrived. There was a time during my practice when that was generally the existing format. Here the entire presentation of claimant’s case and then surety’s case was presided over by just one person, referee Bauman. He then wrote out the Commission’s decision; it was readily adopted by the Commission.
In the view of this one member of the Court, that is an awesome responsibility to have affixed on one person, the referee. It would be indeed interesting to see the decision that would result from a mock trial of the issues which were presented to referee Bauman, as decided by a panel of surety’s attorneys in opposition to a panel of claimant’s attorneys, perhaps three to a side.