(dissenting).
I cannot concur in that portion of the majority opinion which denies claimant any recovery for medical expenses incurred after August 24, 1965, the date of the initial award of the Board. On February 23, 1965, claimant requested permission of his employer’s surety “to have Mr. Scott examined by another orthopedic surgeon and to have a myelogram, if that is necessary * * * [because] there is a strong indication that a disc injury occurred.”1 On *843March 17, 1965, claimant was examined at the surety’s request. Then on March 30, 1965, apparently because the surety’s doctor found “minimal physical evidence of subjective complaints,” 2 the surety refused claimant’s written request.
Holding that this request and its rejection did not supply any basis for claimant’s self-procurement of medical aid under 1.C. § 72-307, the majority state the following :
“It would be unreasonable to hold that such letter, requesting a myelogram, a diagnostic aid, would serve as a sufficient request for all the later treatment. Claimant made no request directed to respondents or either of them for any such treatment; nor did he seek authorization thereof by the board. The expense of those treatments and ministrations are not compensable, as the board correctly held. I.C. § 72-307; Findley v. Flanigan, 84 Idaho 473, 373 P.2d 551 (1962); cf. Lane v. General Telephone Company of Northwest, 85 Idaho 111, 376 P.2d 198 (1962).” 3
This conclusion is erroneous for several reasons. First, one of the assumptions underlying this conclusion is that a myelogram, as a mere “diagnostic aid,” is a relatively minor and unimportant part of the medical treatment of lower back injuries. However, this assumption ignores the facts that several doctors had recommended a myelogram and that the prescription of certain exercises and a brace failed to produce any beneficial results. More importantly, it ignores the obvious fact that a mere “diagnostic aid” is in reality a medical discovery device. To refuse to permit the use of scientific diagnostic aids is in reality to refuse to recognize that an otherwise undiscoverable injury may exist. Just as x-rays may disclose pelvic fractures, for example,4 so a myelogram (“Roentgenography of the spinal cord after injection of a contrast medium”5 may disclose spinal injuries. Thus, the scope of the surety’s refusal of medical aid in this case is much broader than the majority indicates.
Second, I fail to understand why the terms of a request for medical aid by a layman, whose main concern is simply to. get well, should be determinative of the extent of his reimbursement for medical expenses incurred after the surety’s refusal’, even to permit any scientific diagnosis of' the injury. The majority ignore in this, respect the precise terms of I.C. § 72-307). which are very broad indeed. That section*, provides in pertinent part that
“[t]he employer shall provide for an injured employee such reasonable medical,, surgical or other attendance or treatment,. nurse and hospital service, medicine,, * * * as may be required or be requested by the employee immediately after an injury, and for a reasonable time thereafter. If the employer fails to provide the same, the injured employee may do so at the expense of the employer.. * * * ” (Emphasis added).
Thus, the employer “shall” provide whatever reasonable care “may be required or be requested,” and if the employer refuses, to do so the employee may procure “the. same” medical aid himself.
Under these terms, claimant properly sought more scientific diagnosis of his injury, including that by means of the process of exploratory surgery. According to-the Mayo Clinic surgeon, the surgery disclosed
“an impingement of the fifth lumbar nerve root on the right by an enlarged' hypertrophic facet which also contained', a loose osteocartilaginous body. The nerve was thoroughly decompressed, and *844we went ahead then with a fusion of L-4, L-5, and sacrum.” 6
The “osteocartilaginous body” was a bone fragment. It would appear that this surgery was statutorily “required” medical aid. Although claimant suffered certain residual pain after surgery, the Mayo Clinic expressed the view that
“the patient’s persistent symptoms represent nerve root injury sustained from the prolonged compression [of the dural sac].” 7
In other words, the residual pain derived from the failure promptly to diagnose and correct the true injury in the first instance. In any event, respondents themselves illustrated by their cross-examination of claimant at the final board hearing that the surgery produced some favorable results:
“Q. Your condition is better now, is that correct, Mr. Scott?
“A. Yes, I have less pain now than I did.
“Q. Do you have more mobility or are you able to get around better ?
“A. Well, no. I can’t get around too well but I do have less pain.
* * * * * *
“Q. The pain is less now you say?
“A. Yes.” (Tr. 115, In. 1-11).
Third, the Findley and Lane cases cited by the majority, supra, fail to support the conclusion reached. The 'Findley case involved an employee who failed even to notify his employer that any accident had occured. The Court found that the 85-day delay in notification prejudiced the employer under I.C. § 72-402. In the case at bar, the employer and its surety were fully aware of the injury and of claimant’s request for further diagnostic aid. It is difficult to find prejudice here, since the surety undoubtedly would have refused any request for surgery on the ground that claimant’s pain was said to be psychosomatic.
The Lane case involved a claimant who had purchased drugs after the cessation of all treatment by his doctors, after he had returned to work, and subsequent to the time he was found to have been surgically healed. In the case at bar, medical treatment had not yet ceased, claimant had not returned to work, and the Board found that claimant was surgically healed only by November 15, 1966, a date after the very treatment at Mayo for which claimant is now denied reimbursement.
In these circumstances, the case of Clevenger v. Polatch Forests, Inc.,8 is much more pertinent. There the claimant was injured in 1955 and received an award in 1959. During the summer of 1960, claimant’s back injury became more painful despite the medication and therapy he had been receiving, and he was forced to stop working. During that summer, the claimant failed to obtain authorization from the surety concerning the need for further treatment. No authorization for surgery was obtained. On August 17, 1960, a myelogram was taken, and two days later a laminectomy was performed on claimant’s. low back. That operation was successful, and claimant returned to work in December, 1960.
This Court held that claimant was entitled to reimbursement for medical expenses incurred after July 29, 1960, under I.C. § 72-307. The Court held that the treatment was sought within a “reasonable time” under the statute because such time is generally “as long as the condition and necessity for treatment exists.”9 The treatment there performed was ultimately found to have been “required” under the statute, since the myelogram and surgery showed scientifically what insufficient diagnosis had failed to show previously. It is significant that the reason for claimant’s failure to request such treatment from *845the surety was not detailed. Nor, apparently, did it matter that the surety did not give authorization.
The case of McCoy v. Industrial Accident Commission10 is also persuasive. The California Labor Code § 4600 there construed is in substance identical to I.C. § 72-307. The claimant in that case received a back injury. She was treated unsuccessfully for approximately six months, but in the face of continuing complaints of pain, doctors supplied by the commission and the employer found that further treatment was not required. Treatment was delayed for another six months. Finally claimant visited her own doctor, who referred her to a neurosurgeon who agreed to accept her as a patient only if she would submit to whatever surgery was necessary. Tests were made, but their results were negative or inconclusive. Nonetheless, surgery was performed, a ruptured disc was found, and a cervical fusion was carried out.
The California Supreme Court reversed the commission’s denial of reimbursement for these expenses under the statute. That Court stated:
“If an employer has refused an injured employee treatment for an industrial injury or claims that further care is unnecessary or futile, it is liable for the reasonable cost of medical care secured by the employee from a physician of his own choosing if such treatment is given within a reasonable time after the employer’s refusal, if there has been no substantial change in the employee’s condition before independent medical advice is rendered and if, at the time reimbursement is sought, the employee can show that the treatment he received was ‘reasonably required to cure or relieve from the effects of the injury.’ ”11
There, as here, the employee gave no notice to the employer of an intention to obtain further treatment including surgery. There, as here, the giving of such notice would have been futile, for the employer in each case had already adopted the position that the employee’s complaints were not genuine and had declined to supply further diagnostic aid. Thus, each employer declined to perform its mandatory statutory duty. There, as here, proper medical diagnosis ultimately showed that further aid was in fact required. No reason appears why claimant in this case should not recover the expenses of such aid just as the claimant in the McCoy case did.
The majority opinion in this case sanctions an extremely restrictive interpretation of a statute which imposes mandatory duties on an employer. Yet the cases are legion which hold that the workmen’s compensation laws must be construed liberally.12 For all of these reasons, I must disr sent.
. Transcript p. 123A.
. Majority opinion at 3.
. Majority opinion at - — —.
. See Johnston v. A. C. White Lumber Co., 37 Idaho 617, 217 P. 979 (1923).
. Dorland, Illustrated Medical Dictionary 972 (1965).
. Claimant’s exhibit 13.
. Claimant’s exhibit 22.
. 85 Idaho 193, 377 P.2d 794 (1963).
. Id. at 201, 377 P.2d at 799.
. 64 Cal.2d 82, 48 Cal.Rptr. 858, 410 P. 2d 362 (1966).
. Id. at 862, 410 P.2d at 366.
. See, e.g., cases cited in Flock v. J. C. Palumbo Fruit Co., 63 Idaho 220, 242, 118 P.2d 707, 716 (1941) (footnote 3).