dissenting.
I disagree with and dissent from that portion of the majority opinion contained in Part II. It is my view that when Paulson, his employer and the surety appeared before the Industrial Commission they intended to obtain a permanent disability rating ascertainment. However, the Commission, on its own motion, determined to keep the claim open on what I feel is a dubious finding that the claimant’s condition was not stable. The majority opinion, on what I believe are equally dubious grounds, sustains that action of the Commission.
Part II of the majority’s opinion is premised on the assumption that (1) Paul-son’s psychological problem was treatable, and (2) the surety and employer breached a duty to provide treatment.
Among the testimony cited by the majority opinion on the treatability issue, Dr. Cone stated, “And it [Paulson’s dysfunction] is a difficult thing to change and if it were — if it were something that was easily treated, I would say that, but it isn’t.” Cone also noted, “The prognosis with appropriate psychiatric treatment is questionable because his condition has existed for three and one-half years.” In my view the record provides no other evidence relating to treat-ability.
The claimant has the burden of showing that his condition was not stationary. Lawler v. Industrial Commission, 24 Ariz. App. 282, 537 P.2d 1340 (1975); Timmons v. Industrial Commission, 83 Ariz. 74, 316 P.2d 935 (1957). Paulson presented no evidence supporting a claim that his condition was not stable. In my view, the majority is willing to obtain a negative inference from the word “questionable” and transform it into substantive evidence. A “chance” or “slender possibility” thereby becomes sufficient medical evidence to support a finding of the Commission. It has been my understanding that the law of Idaho is to the contrary. “In order to recover in Workmen’s Compensation cases, there must be medical testimony supporting the claim for compensation with a reasonable degree of *906medical probability.” Dean v. Dravo Corp., 95 Idaho 558, 560, 511 P.2d 1334, 1336 (1973), and the cases cited therein. A medical probability exists when there is more evidence in favor of a proposition than against it. Id. The evidence before the Commission demonstrates by a medical probability that Paulson’s dysfunction was not treatable and, accordingly, I would set that portion of the findings of the Commission aside.
I believe it a fair inference that the majority is willing to lower the standard of medical proof to which a claimant is held because they perceive a breach of duty to provide medical treatment. An employer is required to provide medical treatment to an injured employee under the circumstances detailed in I.C. § 72-432(1). The employer has a statutory duty to provide such treatment “as may be required or be requested by the employee immediately after an injury or disability from an occupational disease, and for a reasonable time thereafter.” The statute appears to contemplate two circumstances: (1) where an emergency exists and time dictates that treatment be given without regard to notice or treatment, and (2) where an employee makes a reasonable request for treatment of his or her work related injury.
In my judgment, it is clear that Paulson had no need for emergency psychiatric treatment. I believe the question then becomes whether the employer and surety denied treatment which had been reasonably requested by the employee. The majority here, however, faults the employer and the surety only because they allegedly had notice of a potential psychological overlay. I find no foundation in the statute for that analysis and it faults an employer for failure to do that which he had no power to do. “Once an employee has been placed under the care of a competent physician, surgeon or hospital, neither the employer nor the insurance carrier have the power or authority to order or direct what treatment or method of treatment the employee shall receive.” 10 Schneider, Workmen’s Compensation Text, § 2017. The fact that an employer and surety may have received medical reports mentioning the possibility of a psychiatric problem is not controlling since there must be a request for treatment before there can be a breach of a duty to provide treatment. See Lane v. General Tele. Co. of Northwest, 85 Idaho 111, 376 P.2d 198 (1962).
Paulson’s attorney ultimately did present a request to provide psychiatric care in May of 1975. Thus, I deem May 1975 was the earliest date that any breach of a statutory duty could have occurred since all requested and required care up until that time had been provided. In determining whether or not reasonable medical and psychiatric treatment had been denied following May 1975, consideration must be given to the diagnosis made and the treatment given. Burch v. Potlatch Forests, Inc., 82 Idaho 323, 353 P.2d 1076 (1960); Johnston v. A. C. White Lumber Co., 37 Idaho 617, 217 P. 979 (1923). The record reveals that no doctor undertook the treatment of Paulson’s psychiatric problem and the apparent reason is that by the time it was diagnosed, it was too late for treatment. It is also significant to note that after the request for treatment was denied, Paulson did not then seek psychiatric treatment at his own expense. If he had so obtained psychiatric treatment and demonstrated the reasonableness thereof, I.C. § 72-432(1) would have permitted reimbursement therefor. It is clear to me, based on all of the above, that the surety acted reasonably in denying requested treatment.
In sum, I believe the evidence is entirely inadequate to support the finding of the Commission that Paulson’s condition is treatable. Further, there is no statutory basis for a finding by this Court that the surety or employer breached a duty to provide treatment. Had the Commission ruled that Paulson was entitled to total permanent disability, I would not quarrel, but here, however, they have made their findings as to treatability without sufficient evidentiary foundation and this Court has found a breach of a duty to provide treatment when no such duty statutorily exists.