dissenting.
PART I.
Of the five members of the Court who first heard the oral argument over thirty months ago, only Justice Bakes and I remain to participate in what may be the last hurrah for Paul Frank. Frank’s only remedy under Idaho law is the “sure and certain relief” which the Workers’ Compensation Act provides in lieu of the preexisting and now precluded right of a worker to obtain the damages awardable to him by a jury of his peers who learn of his injuries and the cause of those injuries at a trial in the county where he has lived and worked all his life. The reader of the first majority opinion, filed May 24, 1988,1 will find that the contents therein accurately report on the accident which befell Paul Frank, now almost ten years ago. He was on the job and traveling within the mine, underground, in a mine skip, which presumably was faulty equipment,2 because a cable parted, plummeting Paul Frank and his iron vehicle down into the mine a distance of over 170 feet. It is easy to visualize that no man could survive such a ride in such a contraption, but Paul Frank was more than an average man, and he did survive. __
Justice Shepard, in authoring the first opinion for the Court,3 portrayed generally the extent of the terrible injuries which the *839runaway mine skip inflicted on Frank, which Justice Shepard confines to one short paragraph found on page two of the first opinion for the Court:
[A] bursting-type fracture of the T-10 vertebrae; fracture of the left femur midshaft; compound fracture of the right tibia and fibula; fracture of the left hemopelvis including the sacroiliac joint; nasal fracture; and a deep wound of the left buttock. Some of the injuries were treated the day of the accident, and later several surgeries were performed on some of the fractures, including a spinal fusion.
117 Idaho at 791, 792 P.2d at 816. For some undisclosed reason, that opinion makes no mention of the “Harrington Rod Instrumentation.” Yet the Industrial Commission had done so in its written decision:
Claimant was held in skeletal traction, and on November 24, 1980, Harrington instrumentation was performed on the vertebral fracture. This process involved the insertion of rods with hooks on either side of the spine, and a spinal fusion was performed.
R. 7. The Commission did not further inform its readers on Harrington instrumentation. Dr. P.R. Harrington devised the method which bears his name in 1958. In 1962 the Texas Institute for Rehabilitation and Research, Division of Orthopedic Surgery, Baylor College of Medicine, Houston, commenced a fourteen year study of ninety-five patients treated by the Harrington method. The Harrington method consists of insertion of the instrumentation plus fusion of various severely damaged vertebrae. The report of the study, published in 1978 by the Journal of Bone and Joint Surgery, Inc., was admitted in evidence as claimant’s exhibit 11, and is attached hereto as Appendix A, and is the best illustration of the extreme severity of Frank’s injuries and the radical techniques needed to put back together what was left of him.
The Court’s initial opinion of May 1988 provided no indication whatever of the man Paul Frank was until his injury occasioned by the faulty equipment, other than that we learn that he was thirty-four years old and in the ten months of 1980 before disaster overtook him he had earned $27,000, and in the previous years of 1978 and 1979, he had earned $24,000 and $28,000 respectively. We learn from that opinion that he had no physical impairments. In short, we ascertain therefrom that it was one heck of a miner who earned that kind of money working in a mine.
Although we are told by the 1988 majority opinion that Frank’s grade point average on graduating from Kellogg High School was 1.39, we are not told that Frank worked a full night shift throughout his entire senior year. We are not told whether his grade point average was higher or lower in the previous two years. The Commission’s Finding No. 1, issued in July of 1984, leaves an inference that he might also have worked night shifts prior to his senior year. R. 11. Other than for two years of military service, responsive to being drafted, his whole life in Kellogg, Idaho, was dedicated to underground mining at the Bunker Hill mine, for which he was paid well because he worked well, and he had a wife and three minor children who were the beneficiaries of his hard and dangerous work.4
*840What I have not understood throughout the course of this controversy is the purpose of the Court in pointedly stating Frank’s low grade point average at his graduation. A likely surmise is that the Commission so noted that factor in connection with Frank’s physical limitation, concerning which a psychologist testified that such “factors affect claimant’s ability to be retrained for suitable employment.” Finding No. XVI, R. 17. Another finding of the Commission’s initial decision adds that:
Claimant’s education is limited and his only work experience is in the field of underground mining____ Claimant lives in an area where competition for work in all phases of the job market is extreme. In view of his physical disabilities and the extent to which most employers would have to accommodate Claimant’s constant physical discomfort, he is at a serious competitive disadvantage for the few sedentary jobs which he might otherwise perform. Claimant is an odd-lot worker.
R. 15. Certainly those findings taken together were more than enough to support the Commission’s Conclusion No. IV in its entirety:
The Commission concludes that Claimant has met his burden of proof in establishing a prima facie case that he is a member of the odd-lot category. The Commission reaches its conclusion in spite of the fact that Claimant has not attempted to perform other work. Based upon the number and nature of jobs available in Claimant’s locale and based upon Claimant’s lack of job experience and physical disabilities, it would have been futile for Claimant to do more. The nature and extent of Claimant’s continuous physical discomfort makes his situation analogous to that of claimant in Cary [Carey] v. Clearwater County Road Department, et al., — Idaho-Opinion No. 67, June 15, 1984. [107 Idaho 109, 686 P.2d 54 (1984)]
R. 13. All told, the Commission, which in this case conducted the hearing before the full Commission, and not by just a referee or one member, performed commendably in reaching its decision.
Not heretofore mentioned, I remember reading somewhere in the appeal record that Frank was not only a diligent worker, but a worker well-endowed in size and strength, standing six feet four inches. I recollect also that someone in employment testified that Frank was the Company’s top ore producer, hence his high earnings.
PART II.
The opinion authored by Justice Shepard did not discuss at all the main theme of Frank’s appeal to this Court, which was to accurately portray the gross errors and omissions of the Industrial Commission.
Both parties had far more than the usual time to prepare the cases which they would, through able counsel and expert witnesses, present for the Commission’s consideration. Although Frank was injured on November 12, 1980, the Commission’s hearing was not conducted until February 29, 1984, and was not decided until the Commission’s written findings of fact, conclusions of law, and award was entered on July 18, 1984. Bunker Hill had contended throughout that the Commission should take into account that Frank, despite his severe injuries, as a corporate officer had been receiving income of $2,000 monthly. This issue was addressed in the Commission’s decision in its Finding No. XIV, which in full is as follows (with emphasis added, italicizing that part of the finding which found against the aforesaid contention of Bunker Hill):
XIV
Claimant participates in a mining partnership with his brothers, and during the summers of 1982 and 1983 visited sites of mining operations in northern Idaho. Claimant performed minor duties while at the mine sites but did not work regularly or perform any substantial duties. Claimant is on the Board of Directors of two mine development companies and plays an active role in the management and operations of those companies. The record indicates that Claimant has some knowledge of mining properties, mining activities, and mining equipment. Claimant does not receive any income from his activities as director of the companies, and Claimant has not thus *841far received income by virtue of his participation in the Frank Brothers mining partnership.
R. —.
On the twentieth day after the issuance of the Commission’s decision, Bunker Hill filed with the Commission a petition for rehearing which was rote in nature in that it simply alleged that the evidence did not sustain the findings which had been entered. Not in accordance with standard practice before the Commission, the Bunker Hill petition set out nothing to support its bare allegation,5 and set out nothing that had not already been asserted two years ago. The petition should have been dismissed or denied out of hand. But it was not, and to this day no one in now two majority opinions has offered any justification for such disparate treatment of a claimant. Nor can anyone do so, because it cannot be done. What can be done, and has been done, and I know not why, is that the Court simply ignores the issue, which may be in accord with some principle of divine right.
Somewhat of an improvement, in form at least, but wholly out of time was a second Bunker Hill petition, entitled “Supplemental Petition,” which was based on allegations of fraud supposedly committed by Paul Frank, in that he was alleged to have deceived the Commission into its finding above set out that he had received no income from his position as a corporate officer. This petition was different from the first petition because it attached a brief of sorts and some documents upon which it relied for asserting that Frank was guilty of fraud (perjury), and that as a result thereof had received more of a monetary award than he was entitled to receive. As a second thought, citing I.C. § 72-801,6 Bunker Hill urged upon the Commission that, because of the alleged fraud, Frank (and this would by operation of law include his wife and three minor dependent children) must forfeit all compensation benefits which the severity of his injuries and non-medical factors entitled him to. The allegations of fraud were immediately responded to by alert and astute counsel representing Frank, and that response included an affidavit by Frank which averred that he was not guilty of fraud or perjury, and again averred that he had not received the $2,000 monthly income as claimed by Bunker Hill. The claim of fraud asserted by Bunker Hill was just that and nothing more. The issue involved, of course, had been decided at trial, and Frank by affidavit had reasserted his innocence of fraud, and reasserted that he had not received $2,000 monthly, or any income.
Bunker Hill filed its brief arguing against Frank’s response, and continued to urge that the fraud disentitled him from compensation benefits.7 This preliminary issue was squarely before the Commission and required that it make a decision. The Bunker Hill contention of fraud was the one and only possibly viable issue by which it could obtain the reopening of the case which it so desperately and deviously sought. The claim of fraud also was used to allege the issue of manifest injustice. That issue would be, and eventually was, resolved.
Commissioner Geddes, to whom the full Commission assigned the task, would eventually, after a second hearing which was held after reopening, draw another finding relative to Bunker Hill’s contention that Frank had indeed been receiving $2,000 monthly. That second finding, as Paul Harvey might write, tells the rest of the story as to Bunker Hill’s contention that Frank, whose ambition had been and still *842was, to be the best producer Bunker Hill had ever had, was a liar, a perjurer, and a defrauder. Commissioner Geddes wrote Finding XVIII which is set out so the reader may compare this with the 1984 finding, set out earlier. The critical portion is italicized:
*84172-801. False representation a misdemeanor — Forfeiture of compensation. — If, for the purpose of obtaining any benefit or payment under the provisions of this law, either for himself or for any other person, any one wilfully makes a false statement or representation, he shall be guilty of a misdemeanor and upon conviction for such offense he shall forfeit all right to compensation under this law.
*842XVIII
Evidence was also presented that the Claimant acts as president of a mining company, Gold Back mine, but that he performs no significant duties for the mine. The Claimant visits the mine property periodically to prevent vandalism, discusses mine business with shareholders and officers, and receives correspondence and telephone inquiries concerning mine business. The company has agreed
1984
Claimant does not receive any income from his activities as director of the companies, and Claimant has not thus far received income by virtue of his participation in the Frank Brothers mining partnership.
There may be another reported case where a Court, or the Commission, or any agency, reopened a closed case on mere and unproven allegations of fraud, but I am unable to find it.
PART III.
Having concurred in Justice McDevitt’s opinion, I feel compelled to comment on the difference between what he has written as compared to what Justice Boyle has written to serve as the opinion for the Court. A close perusal of Justice Boyle’s opinion need not long detain anyone. The first paragraph is a succinct, correct, and readily understood statement of what the Commission found and ruled, other than that it improperly is couched in terms of “appellant could work,” and seems to suggest that his not working was based on “poor economic conditions in Shoshone County and a lack of sedentary work for disabled persons.” Such is not an accurate portrayal of the Commission’s July 18, 1984, decision, all of which is^set out verbatim in the
to pay the Claimant $2,000 per month for his work as president and has agreed to pay him in stock of the corporation because the corporation is without funds. The evidence also indicates that the stock has no ready market and has virtually no value at the present time. The Commissioner finds that the Claimant actually receives no income from his activities in connection with the mine.
R. 157.
For further emphasis, after withstanding a second hearing, here are the salient portions, side-by-side, of the 1984 and 1986 decisions:
1986
The evidence also indicates that the stock has no ready market and has virtually no value at the present time. The Commissioner finds that Claimant actually receives no income from his activities in connection with the mine.
May 24, 1988 opinion of Bistline, J., and certain excerpts of which have already been mentioned previously in this opinion.
The second paragraph of the majority opinion supposedly reports that which Justice Shepard authored in his May 24, 1988 opinion, but is inaccurate, just as Justice Shepard was loosely inaccurate in writing in the 1988 Op., 117 Idaho at 791, 792 P.2d at 816, that Bunker Hill in August of 1984 filed petitions (plural) for rehearing and for modification of the award, followed by the statement that the grounds for said petition (singular) were fraud, manifest injustice, and change in claimant’s physical condition.8 Bunker Hill’s actual petition for rehearing is set out in the opinion of Bistline, J., 1988 Op., 117 Idaho at 843, 792 P.2d at 868. All that it was based upon is found in this one sentence: “This petition is made on the grounds and for the reasons that there is not substantial evidence in the record to sustain the Commission’s decision, and the Commission has erred as to *843matters of law.” R. 24. Let it be well noted that the only issue it attempted to raise was that the evidence was insufficient to sustain the award — which amounts to nothing but a bunch of poppycock. It has no allegation of anything evidencing either fraud or manifest injustice. It was signed not by counsel who tried the case but by uninvolved associate counsel, and it was dated on the last possible day, August 7, 1984, and filed that date. The authority for such a motion (petition) is I.C. § 72-718. That section specifically cuts off the time to so move to within twenty days. Moreover it does not authorize the filing of a later petition after the twenty days has expired. There is no provision for allowance of an out-of-time filing. That petition did not contain a brief, and it did not attach a brief. It suggested that upon the rehearing it requested that it might then submit a brief. Yet, completely at odds with the statutory law and case precedent suggesting that the statutory law will be evenhandedly administered, two weeks after filing its motion for reconsideration, Bunker Hill (actually Pintlar Corporation, as we now know) filed a supplemental motion (petition) and included therein, for the first time, outrageous and defamatory allegations of fraud on the part of Paul Frank, namely perjury in testifying that he was not receiving compensation from a mining company of which he was an officer. R. 33-45.
Contemporaneously with the Supplemental Petition, Bunker Hill (Pintlar) moved, purportedly under I.C. § 72-719, to modify the award which had only been entered five weeks earlier on July 18, 1984. Bunker Hill’s modification petition was based on the same allegation of fraud that was contained in the untimely Supplemental Petition for Rehearing. It tossed in additional grounds that because “the award was procured by fraud” it “should be set aside to correct a manifest injustice.” R. 46. Bunker Hill inserted in its petition a short brief which did not set out all of the provisions of I.C. § 72-719, but only subpart 3, which instructs the Commission that “at any time within five years of the date of the accident causing the injury ... it may review a case to correct a manifest injustice.” Bunker Hill also cited to Banzhaf v. Carnation Co., 104 Idaho 700, 662 P.2d 1144 (1983), and Sines v. Appel, 103 Idaho 9, 644 P.2d 331 (1982), for the proposition that “by our holding today we are making it known that claimants, and in some instances, employers and their sureties, are not precluded from making the same motion, ...” R. 48. Clearly, Bunker Hill was by its petition asserting its right to move the Commission “that the award be set aside to correct a manifest injustice.” The Court’s final remarks in Banzhaf were:
We note that I.C. § 72-719(3) becomes operative on the Commission’s own motion, but that fact does not preclude the Commission from exercising its powers when notice of a purported manifest injustice is brought to its attention either by a party or a third party.
Banzhaf, 104 Idaho at 703, 662 P.2d at 1147.
The petition filed by Bunker Hill served the purpose of alerting the Commission’s attention to Bunker Hill’s allegation that Paul Frank obtained his July 18, 1984, award by means of fraud (false testimony) and that on that basis the award was supposedly a manifest injustice which required modification. But, the Commission did not conduct a hearing for the purpose of determining whether Bunker Hill had presented a sufficient showing for the case to be reopened. That was the fatal breakdown; the Commission simply took that action on the basis of allegations alone.
The Commission’s order that the case be reopened was absolutely uninformative as to which of the three Bunker Hill motions precipitated its drastic action. The December 10, 1984, order was simply that — an order. In full it reads:
The Commission has reconsidered the award entered on July 18, 1984, based upon the motions, briefs and affidavits filed herein since the entry of said award.
NOW, THEREFORE, IT IS HEREBY ORDERED that this matter shall be reopened for further hearings to be set at the convenience of the Commission and the parties.
*844IT IS FURTHER ORDERED that the parties shall be notified of the date, place and time of said hearing by the Industrial Commission in the near future.
R. 143. Although the order well served Bunker Hill’s purposes in that it would be able to introduce post-hearing, post-award surveillance, which evidence had not been the grounds of any of their three motions, the order perpetrated a great injustice on Paul Frank and his counsel.
The Commission was grossly in error in entering its order without responding in any way to a succinct but forceful brief relative to the Bunker Hill fraud allegations, which logically were what stampeded the Commission into reopening a case which had been thoroughly and well-tried by both sides, and decided by the full Commission in a well-written decision. Following is an excerpt of Frank’s brief submitted to the Commission and ignored by the Commission, and the content of which also was not responded to in the Court’s initial opinion authored by Justice Shepard, and even more so ignored in today’s opinion authored by Justice Boyle:
DEFENDANT’S ALLEGATION OF FRAUD
The defendant requested reconsideration or rehearing on the last day to do so after the Commission had rendered its decision. No mention of fraud was made. As will be shown no fraud occurred. Therefore, it is submitted the Commission should rule on the Petition For Rehearing Or Reconsideration, let the decision become final and leave defendant with its appellate rights.
Defendant’s Petition For Rehearing should be denied due to lack of grounds. As will be shown the grounds of defendant’s allegations of fraud were nonexistent at the time of Paul’s testimony and are nonexistent today. Further, defendant’s petition asserting fraud was beyond the twenty day limit to request rehearing.
It is submitted the initial petition for rehearing should be considered in light of I.R.C.P. 59(A)(B)(C) governing motions for a new trial. _ Rule 59(C) requires an affidavit asserting newly discovered evidence be served with a motion for new trial. Here none was served and none has yet been served. To move for a new trial because of newly discovered evidence:
‘Newly discovered evidence must be of facts existing at the time of trial.’ Wright and Miller Federal Practice and Procedure: Civil § 2808 Vol. 11 p. 55.
‘If it were grounds for a new trial that facts occurring subsequent to trial have shown an inaccurate prophecy, litigation would never come to an end.’ Nordin Construction Company v. City of Nome, 489 P.2d 455 (Alaska 1971).
Defendant should not be allowed to boot strap itself to a position where it can raise the question by a late supplemental petition. Therefore, the Commission should rule on the petition in regard to insufficiency of evidence and errors of law. If the Commission desires to consider the issue of alleged fraud it should be done pursuant to the authority under which defendant petitions for modification of award. Defendant makes no showing of fraud at the time of hearing. The compensation claimant is alleged to be receiving has not been received and was not authorized at the time for hearing. See Affidavit of Paul Frank submitted herewith.
WHEREFORE, Defendant having shown insufficient reason for reconsideration or rehearing the claimant moves that defendant’s petition for reconsideration and rehearing be dismissed and the decision become final.
R. 126-28.
It is important to keep in mind that the Commission had Paul Frank’s brief in hand at the time it entered the ill-starred order of December 10, 1984. In fact, the Commission’s order itself, while it provides no reasons or reasoning whatever, does acknowledge the receipt of briefs: “The Commission has reconsidered the award entered on July 18, 1984, based upon the motions, *845briefs, and affidavits filed herein since the entry of said award.” R. 143.
Attention is directed to use of the word “affidavits.” There is one, and only one, affidavit in the record, and that affidavit is Paul Frank’s, subscribed and sworn to by Paul E. Frank on the 29th day of October, 1984. R. 68. It was a verification of the questions put to him by Bunker Hill’s attorney at a deposition taken by Bunker Hill of Frank, and the answers given by Frank. The purpose of the affidavit was to refute Bunker Hill’s bald allegations of Frank’s supposed fraud (perjury) in not disclosing that he was receiving $2000 monthly. The matter of Frank’s fraud was eventually put to rest, by Commissioner Geddes himself, and approved, confirmed, and adopted by the full Commission in its July 2, 1986, second and final decision: “The Commission finds that the Claimant actually receives no income from his activities in connection with the [Gold Back] mine.” R. 157; 1986 Finding XVII (almost identical with 1984 Finding XVI).
The terrible irony of this finding is that it is indeed the only finding which the Commission could properly make, but it should have not been delayed until July 2, 1986. After all, it was the Bunker Hill untimely supplemental petition for rehearing which first raised an issue of fraud (perjury), coupled with its petition for modification based on fraud (perjury) which precipitated the Commission into recklessly reopening the case, when it had before it the brief and supporting affidavit of Frank refuting those allegations of fraud (perjury) relative to Bunker Hill’s assertion that Frank had lied in denying that Gold Back Mine had paid him $2000 monthly. It was a wholly spurious move on the part of Bunker Hill in its devious effort at causing the Commission to reopen a closed case. Nowhere has the Commission ever justified its indolence in not passing on that issue when it was early on presented.
The Commission was hornswoggled into reopening the case on one allegation, and that allegation was the cry of fraud resulting in a manifestly unjust award to Mr. Frank because he was earning $2000 monthly and denying it. Worse than that the Commission cannot justify its conduct is that this Court has simply ignored the issue, which it does notwithstanding that counsel for Frank correctly reminds us that the claim of fraud which gained for Bunker Hill the reopening of the case was itself found to be a false claim, and worse yet, was successfully refuted by Frank before the order reopening was entered.
As I wrote two years ago, Justice Bakes alertly pointed out at oral argument:
Mr. Boyd, there’s an argument of Mr. Rose that there’s a certain threshold on a reconsideration argument in the Idaho statute, there’s a certain threshold of showing that gou’ve got to climb over before the Commission’s ... entitled to go back and reconsider their prior decision. It cites the Pets case, which of course is the Cascade ease, the Oregon case and the Duncan Louisiana Court of Appeals case. Do you want to discuss that point, because that is a legal question in one sense____ [TJhere’s a certain burden which has to be a showing made before the Commission can do that and absent that showing, theg can’t go back and alter or amend their decision.
1988 Opinion, 117 Idaho at 817-818,792 P.2d at 842-843 (emphasis in original). As to just how spurious that issue of fraud creating manifest injustice was, one needs to review Volume I of the Reporter’s Transcript, the 1984 hearing, and Bunker Hill’s counsel’s cross-examination of Paul Frank which encompasses thirty-three pages, at pages 36 to 69. At page 52, there appears counsel’s examination into Nesco Resources, Inc., and Frank’s admission that he had been on Nesco’s board of directors for six months, and his activities with Gold Back Mine as a member of the Nesco board. Counsel took a good deal of time with Paul Frank, asking about a flight from Spokane, Washington, to Calgary, Canada, and a motor vehicle trip from Osborn, Idaho, to Spokane to attend a board meeting. In all of that cross-examination, and on three careful readings, if counsel ever asked Paul Frank if he received any remuneration from such activities, then I must confess to being *846remiss in my reading abilities, and necessarily hope that someone on the majority opinion will enlighten me. My hope is undoubtedly a futile one, which I saw based upon the lack of comment which my opinion of two years ago elicited from those who comprised that majority, other than at least one in that number joined with me in voting for a rehearing.
That same cross-examination of Frank by counsel for Bunker Hill at the initial hearing did serve the laudable purpose of providing testimony which showed physical activity, post-injury, during recuperation which was on a par with what he did in helping his brother’s roofing project; driving to, and fishing and hunting on the St. Joe River; twenty-five days hunting in the fall of 1983; plowing snow in the winter with an H.D. track-loader; helping out in his brothers’ mine at Bovill; carrying steel bits into an underground mine; assisting his brothers in equipment repair; driving to look at Gold Back Mine property; and going underground in two mines since his injury. Tr., Vol. II, 40-62.
As summarized by claimant’s counsel, the very claim of fraud which served to garner Bunker Hill a second hearing was not proved, nor was the proof even attempted. Bunker Hill seized upon the reopening to spring on Frank and the Commission the testimony of the private investigators which Bunker Hill had retained to spy on Frank and to testify, for whatever it might be worth, that they believed they saw Frank give no visible evidence of hurting.
The Commission did not attend to its obligation of deciding whether there were indeed grounds to reopen. Up until now two majorities of this Court have ignored the procedural morass which was created by the indifference of the Commission relative to its reopening without deigning to explain how or why it thought it coiild do so.
Under our case law precedent it is understood that any party to a workers’ compensation case, meaning the claimant and the employer/surety together (which they are in practically all instances), or the employer or the surety each individually can move the Commission to reopen a closed case, within the statutory five year limitation from the date of the accident causing the injury on the grounds of a perceived manifest injustice.9
In the instant case, it was Bunker Hill, being both employer and surety, which moved the Commission to reopen on the grounds of Paul Frank’s alleged fraud, which was immediately refuted by Claimant’s affidavit and documentation. The Commission should have reviewed the evidence, oral and documentary, which was admitted relative to that issue in the 1984 hearing, and, depending on what it discovered and accordingly found as to fraud claimed by Bunker Hill, determined whether there was enough of a scintilla of the scent of fraud to justify a reopening. But the Commission did not do that.
Under the case law which has developed (i.e., the Banzhaf case and the Sines case), the Commission on sufficient showing and on making proper findings and conclusions, could have on its own motion, as I.C. § 72-719 is so worded, entered an order reopening the case. But, again, it did not do so, but instead entered the wholly bare bones order on December 10, 1984, which did not say it was reopening the case sua sponte. Rather, it recited the filing of Bunker Hill’s three petitions (motions) for reconsideration, recited the receipt of briefs, recited the receipt of affidavits (in actuality, as mentioned earlier, only the affidavit of Frank is in the record), and declared the case reopened for a further hearing, which it put off apparently for the convenience of Bunker Hill. For certain, Paul Frank had no reason to seek any delay, and had already served and filed his affidavit, supported as aforesaid, that he was not guilty of fraud.
Moreover, had the Commission in its order stated that it was reopening to ascer*847tain if there was any fraud on claimant’s part, and yet failed to state the quantum and quality of the proof which it had so received and accepted as a basis for its action, just as surely as night follows day, Frank’s attorney would have been in the court system seeking one or all of the various extraordinary writs which are available where a tribunal has acted without or in excess of its authority, or has stated or threatened that it was preparing to do so. There is not in this record anywhere, and certainly not under date of December 10, 1984, any order entered by the full Commission, or by Commissioner Geddes, which declared that the Commission, sua sponte, was reopening the case.
It may not be legally, socially, ethically, or morally impermissible for a disgruntled employer/surety to post-trial and post-decision conduct private-eye surveillance on a private citizen who has just recently prevailed in a contested hearing. But a great and likely everlasting concern is the propriety of so doing, and then deposing the successful claimant under the deceptive smoke-screen of a patently false and unprovable mere allegation that the claimant was guilty of having given false testimony at a contested hearing.
Illuminating are excerpts out of a deposition which Bunker Hill took over objection when the case had not been reopened, and were the Commission would not rule on claimant’s motion for a protective order which would have precluded the taking of the deposition. The deposition was taken after Bunker Hill had obtained the results of its surreptitiously obtained surveillance of Paul Frank’s daily life following the favorable decision of the Commission. Neither Paul Frank nor his attorney had any knowledge of the surveillance, and did know only that Bunker Hill was attempting to get the case reopened on its allegations of fraud, but after perfunctorily going through the motions of pursuing fraud in the Nesco/Gold Back affair, the interrogation switched to an entirely different subject:
BY MR. BOYD:
Q. I want to clarify one thing, Mr. Frank. I’d asked you about your physical activities this summer and what you could do. Is it your feeling from knowing your physical condition that you are not able to do plumbing?
A. I can do plumbing.
Q. You’re physically able to?
A. I’m physically able. That’s my problem. I’m physically able to do things but then I have to pay for it later.
Q. What are you telling me there? Please explain further.
A. Well, it’s just like mucking a hole. I can muck a hole. My arms aren’t broke. I can muck a hole. It’s the pain and whatever after that’s the problem.
Q. And—
A. It’s not the ability of being able to do it, it’s the consequences.
Q. If you were to make plumbing repairs, let’s say around your home for a day, fix the sprinkler system, fix the trap underneath the sink and spent, let’s say, six or seven hours doing those kinds of chores and repairs, then what happens?
A. Then I would have lots of pain, yes.
Q. When?
A. Well, it would probably start somewhere around three or four hours after I got into it, yes.
Q. Then how would you feel the next day?
A. Rough.
Q. That is, would you be able to repeat that the next day?
A. If I could tolerate the pain, yes.
Q. Then I asked you if you actually did carpentry around your home and your answer was something to the effect that you weren’t much good at carpentry?
A. Right.
Q. But are you now able to do carpentry-type jobs and repairs?
A. I can do it, yes.
Q. But would you say the same thing that you already said to me about plumbing repairs?
A. Yes.
Q. And if I understand you correctly, you haven’t done it this summer?
A. No.
*848MR. BOYD: That’s all the questions I have.
CROSS EXAMINATION
BY MR. ROSE:
Q. Even though you’re able to do some of these things, say for a day or whatever, what’s your physical ability to carry on those activities, or even a desk-job type activity, eight hours a day, 50 weeks a year, five days a week?
A. I can’t.
Q. Why is that?
A. I couldn’t tolerate it.
Q. Referring back to what’s been marked on the record as Exhibit 10, which an objection is made to, in addition, because it has not been properly authenticated, but it indicates in that letter, and I think you testified that you went with somebody to the Miracle Mine area in 1981?
A. Yes.
Q. And some channel samples from across the vein were taken there?
A. Yes.
Q. Who did that?
A. Dave Robbins.
MR. ROSE: That’s all the questions I have.
R„ —.
Obviously, Bunker Hill, under the camouflage or smoke screen of its fraud allegation was attempting to get some comments out of Frank to the effect that he was physically helpless, all as a prelude to springing on Frank and his counsel at the reopening hearing, the video and still pictures showing his participation in the re-roofing of his brother’s house. A sad commentary is that these deposition questions and answers never received any notice, not in Commissioner Geddes’ drafted opinion, and worse yet, not in a four member majority opinion. On the next occasion when I write that I have read the record, I can but wonder if we judges are thought to be credible.
All of which brings me to say that Justice Boyle has the capabilities of making his own careful review of a rather complex record, but it cannot be felt that he has done so when his one page opinion does little more than indicate he has read Justice Shepard’s opinion and is content to endorse it notwithstanding the frailties which I have pointed out in now two opinions, plus Justice McDevitt’s opinion of which almost every line is a message highlighting the inattentive review and justify-nothing tone of the two majority opinions. If we Justices have no concern as to the inquiries and concerns of each other, what then can the litigants and their counsel expect?
. The opinion is reported at 117 Idaho 790, 792 P.2d 815 (1988).
. In its first decision the Industrial Commission as a specific finding stated that in September 1981, Mr. Frank became aware of the imminent closure of Bunker Hill’s mine and his bleak prospects for returning to work there. R. 15. He was injured on November 12, 1980. The mine closure became a forecast fact long before Paul Frank had recuperated to the point where he was ready to submit his compensation claim to the Industrial Commission, which was not until February 29, 1984. Unmentioned in the Court’s opinion of May 24, 1988, was that by February of 1984 Bunker Hill Company was off the scene. Paul Frank’s opponent in seeking just compensation was not his long-time employer, but its successor-in-interest, Pintlar Corporation.
.The appeal was not taken by Pintlar Corporation, but by Paul Frank after experiencing the most unusual, and unprecedented turn-about by the Industrial Commission’s reduction of his initial award from total permanent disability down to 55 percent of that initial amount. All because Pintlar called “fraud’’ loud enough and often enough to unduly excite the Commission, that ordinarily stable body, into precipitate action.
. Comparable injuries were suffered at the Bunker Hill mine by Mike Carroll in September of 1975, when while working below a skip cage the skip fell upon him due to a defect. Carroll, also precluded from suing Bunker Hill Company because of the Workers’ Compensation Act, made a run at suing the United Steel Workers of America for their negligence in not fulfilling their contractually assumed duty to regularly inspect the mine for safe working conditions, procedures, and equipment. In a 4-1 decision, Carroll did not even get to take his case to a jury. Carroll v. United. Steelworkers, 107 Idaho 717, 692 P.2d 361 (1984). On May 2, 1972, ninety-one miners perished underground at the Sunshine Mine at Kellogg when a fire swept through the mine. Four widows filed suit, claiming that the state of Idaho and the United Steelworkers of America both failed in their obligations for the safety of the miners. Over the dissent of Bistline, J., the Court absolved the state on the basis of sovereign immunity. The case against the United Steelworkers was allowed to continue. It has been in and out of this Court and the United States Supreme Court a number of times, but now is finally on its way to total demise by the May 14, 1990, opinion Steelworkers v. Rawson, — U.S.-, 110 S.Ct. 1904, 109 L.Ed.2d 362 (1990) of the High Court which essentially found, six to three, that the agreement of Sunshine and the United Steelworkers did not create any obligation to the ninety-one miners.
. See, for instance, the disposition of a similar petition which was submitted to the Industrial Commission in Madison v. J.I. Morgan, Inc., 115 Idaho 141, 765 P.2d 652 (1988).
. Idaho Code § 72-801 reads in full:
.Had Bunker Hill published such allegations of fraud and perjury outside of a quasi-judicial proceeding, in a slander or libel suit brought against it by reason thereof, it would have been obliged to prove truth, or suffer the imposition of damages for the injury done to Frank’s reputation.
. Nowhere in any of the petitions or motions filed by Bunker Hill was there any allegation of a change in Paul Frank’s physical condition. Yet Justice Shepard wrote that Bunker Hill’s grounds "were fraud, manifest injustice, and change in claimant’s physical condition.” 1988 Op., 117 Idaho at 791, 792 P.2d at 816. Three justices did not hesitate to join it, obviously either unaware of the misstatement, or, if aware, then indifferent.
. A case where a surety might do so solamente would be where it had claimed no coverage, or where two sureties were exposed, and the Commission had in its decision per inadvertence awarded too great a share of the ultimate award to a given surety, all of which is of no concern here, because no surety is involved. Bunker Hill was qualified as a self-insurer.