separately concurring in the Court’s judgment affirming the Industrial Commission.
BISTLINE, Justice, separately voting to affirm the decision and award of the Industrial Commission.
There are two passages in the proposed opinion for the Court which preclude my joining that opinion. The offending passages, which are not essential to the ratio decidendi of the opinion, are:
Our standard of review remains the same even though, as in this case, the evidence before the Commission was presented by written record rather than through personal appearances at a hearing. Poss v. Meeker Machine Shop, 109 Idaho 920, 923, 712 P.2d 621, 624 (1985); Nigherbon v. Ralph E. Feller Trucking, Inc., 109 Idaho 233, 234, 706 P.2d 1344, 1345 (1985).
Majority opinion, p. 892, 719 P.2d at 1152.
Although we do not condone Beaty’s conduct....
Majority opinion, p. 893, 719 P.2d at 1153.
In Poss, I explained that in cases where the Industrial Commission’s factual findings are based solely on a written record, our standard of review for such findings is not restricted to a determination of whether substantial and competent evidence supports the finding. Rather, under Phipps v. Boise Street Car Co., 61 Idaho 740, 107 P.2d 148 (1940), and other cases, the Court is free to make an independent review of the record, and should do so when the occasion so requires — which I say on the proposition that the Industrial Commission has had visited upon it the obligation of serving the duty of an appeals court on appeals from the Department of Employment. Appeals, of course, are a specialty of this Court, and there can be little doubt that we have substantially more staff available to determine legal questions than does the Commission.
As to the other statement, I do not see that it behooves this Court to pass a moral judgment on Beaty’s conduct, which apparently consisted of pleading guilty in order that his wife and father be spared from any prosecution.