(dissenting) :
Applicant, Tyven Adams, has suffered three industrial accidents: 1) While working for Mollerup in 1958, lifting a truck wheel, he slipped and fell and something “popped” in his back, which troubled him somewhat, but did not prevent him from working thereafter. The Commission ordered Mollerup’s insurance carrier to pay $374.50 compensation for a “permanent disability amounting to 5% loss of bodily function,” — a fact found by a medical panel appointed by the Commission under statutory authority.1 Thereafter, and before the second accident, he worked at Kennecott Copper and Flaming Gorge Dam, performing equally strenuous work as a heavy equipment operator, without “any trouble to speak of,” being “able to do anything I wanted to,” and without any physically disabling incident.
2) Later while working at a gas station operated by one Iverson, installing a battery, he suffered an injury to his back, requiring chiropractic and other medical treatment. His testimony rather clearly pointed up the fact that until the Iverson incident, nothing bothered him much, but that thereafter he could not pursue the type of work in which he had been engaged, so he sought lighter work as proprietor of his own service station. He made application for compensation as a result of injuries while working at Iverson’s, and benefits, were paid on his behalf by the State Insurance Fund of approximately $100, for an injury resulting from his employment with Iverson. In the settlement no claim was made by the Insurance Fund that the incident was any natural outgrowth of the Mollerup injury. This, even though the file in the Iverson case discloses that he had suffered an industrial accident two years before.
3) After leaving his service station, he went to work for Wasatch in 1962 as an equipment operator and sustained a back injury in October, 1962, when a cable which he was tugging came loose and in losing his balance, he fell from the equipment, sustaining a “kink” in his back.
Adams, through his employer, applied for compensation for this last injury, and the Commission, after a couple of hearings, concluded that such injury was the result, causationwise and progressively of the Mol-lerup injury.
*242Aware of the rules with respect to appellate review favoring the Commission’s orders if supported by conceded or controverted evidence, I cannot see how the Commission can be sustained on the evidence because :2
In the Mollerup hearing involving the 1958 incident, the conclusion of the medical panel, without controversion, and sustained by the Commission, was that Adams had sustained an injury that resulted in a “permanent disability amounting to 5% loss of bodily function.” No suggestion was made that this condition would be accentuated by progressive exposure. At best it was a prognosis of permanency without malignancy, and the presumption is that this static condition would persist.
This condition in fact appears to have persisted. The second, or Iverson incident was treated by the Commission and the Insurance Fund as one that was consistent with such conclusion, by its paying off on a claim for an independent injury occurring while Adams was employed by Iverson.
The Insurance Fund, for the first time, asserted a causal connection with the Mol-lerup incident, in the hearing with respect to the last incident, relating to Adams’ employment with Wasatch. This was quite inconsistent with its previous position in the Iverson injury.
Nonetheless, in the Wasatch hearing there was a medical advisory board’s conclusion that Adams’ condition was a result of the Mollerup incident, and that subsequent events were insignificant in the overall progress of Adams’ condition. This conclusion was contested by Mollerup in the Wasatch hearing. Although the medical panel in the latter case detoured from that of the former panel, it is necessary to consider the latter in light of the former decision in this case.
It is difficult to understand how the panel or anyone else could say at this point, without tongue in cheek, that the applicant would have had to go to a chiropractor at the time of the Iverson battery lugging incident had it not occurred. The fallacy of the whole thing is that illogically it is concluded that an independent industrial accident, unrelated to deterioration, does not affect the result of the previous injury. The third industrial incident emphasizes the error since there is absolutely no reason reflected in the record to believe that if the applicant had not slipped on Wasatch’s tongue, that at that time he would have required surgery.
Had the medical panel in the Mollerup case said the applicant had a “5% temporary” ailment, subject to future disability, that is one thing. For the panel in the Wasatch case to say or imply that the *243panel in the Mollerup case was in error lends substance to a conclusion that the first panel report, which was unassailed, should pre-empt that of the second, which was assailed, punctuated with an admission by the chairman of the latter on cross-examination, that it was difficult to determine whichx of the three incidents had greater “pushing down” effect, — hence which one was the real cause of the last disablement. “The testimony of a witness is no stronger than where it is left on cross-examination.” 3
In the present case there was a conclusion that the Wasatch injury was of no consequence in its relation to the Mollerup incident. Under our statute, the panel’s conclusion would he evidence, if not countered. In the instant case the chairman of the panel testified on direct and cross-examination. Although confirming on direct examination the panel’s conclusion, in effect he admitted on cross-examination that he could not attribute to a pre-existent ailment, (the 1958 Mollerup incident), the Iverson incident, or the Wasatch incident; as the causa causans of the last -injury. Under the statute4 the medical, panel rer port is not considered evidence if called to account, but only an exhibit, which must be supported by the evidence. The chairman’s testimony departed from the report and did not support it. He could not attribute the cause precisely to that determined by the panel. This being so, the Commission really had nothing before it definitely to ignore the Wasatch incident. So, it seems that, from the evidence, no' conclusion could be reached to support the Commission’s findings that Mollerup, employer four years before', was responsible in the workmen’s compensation sense.
The main opinion dismembers itself when it admits that “the applicant has had two injuries to his back since the Mollerup accident.” I take it this means two industrial accidents unrelated to the Mol-lerup accident, in which event no kind of reasoning could justify the conclusion that but for those two accidents the applicant would have required medication at the time of each, had either not occurred. In attempting to avoid the quoted language the main opinion relies on the medical report, which, as has been pointed out hereinabove, was shattered by a cross-examination firecracker. It is no answer to say, as does the main opinion, that it is of critical impor-r tance to determine if Dr. Holbrook’s testimony “sustained” the medical report; when obviously it didn’t, and the labored quotation of part of Dr. Holbrook’s examination lifts out of context testimony that does not take into account the pronouncement of Oberg v. Sanders, supra, that “the testimony of a witness is no *244stronger than where it is left on cross-examination.”
On cross-examination, Dr. Holbrook conceded that he did not know which of the three incidents “pushed down” the so-called progressive deterioration. The medical panel in the 1958 Mollerup case, where the claim was settled and accepted, based on the panel report, completely negated any idea of progressive deterioration by concluding that there was only a 5% permanent static condition.
The main opinion’s generalization that the Commission has the prerogative of judging the credibility of witnesses is Horn-book, but its prerogativity does not extend to the luxury of concluding that a witness is credible as to one phase of his testimony, when another phase thereof represents its antithesis.
I am of the opinion that the Insurance Fund, having paid off the second claim on the theory that it was not related to the first accident, and that the facts and admissions in this case are unresponsive to any claim that the 1958 Mollerup incident was solely the cause of the disablement, which should impel an order requiring Wasatch and/or the Insurance Fund to accept responsibility for the applicant’s injury.
As a postscript this writer wonders what the conclusion of the Commission, others and this court would have been had Mol-lerup gone bankrupt and its insurer had become insolvent before the applicant was injured while employed by Wasatch.
. Title 35-1-77, Utah Code Annotated 1953.
. Burton v. Ind. Comm., 13 Utah 2d 353, 374 P.2d 439 (1963).
. Oberg v. Sanders, 111 Utah 507, 184 P.2d 229 (1947).
. Title 35-1-77, Utah Code Annotated 1953.