concurring and dissenting.
I.
Although I join the Court’s opinion wherein it sustains the trial court’s award of attorney’s fees and grants attorney’s fees on appeal1 to claimant, I cannot agree with the Court’s holding that Royce did not have a pre-existing permanent physical impairment within the meaning of I.C. § 72-332(2). The Court’s holding simply ignores one portion of the statute. I.C. § 72-332(2) provides: “As used in this law, ‘permanent physical impairment’ means any permanent condition, ... of such seriousness as to constitute a hindrance or obstacle to obtaining employment or to obtaining reemployment if the employee should become unemployed.” (Emphasis added.) Obviously Royce’s injury, coupled with the latent physical impairment triggered by the injury, constitutes a hindrance to his being reemployed henceforth.
In support of its decision, the Court relies on and quotes from Curtis v. Shoshone County Sheriff's Office, 102 Idaho 300, 629 P.2d 696 (1981). Better, so it would seem, the Court should at least give equal attention to the contemporaneous and slightly later case of Gugelman v. Pressure Treated Timber Co., 102 Idaho 356, 630 P.2d 148 (1981), in which this Court further refined the definition of permanent physical impairment. In Gugelman, the Court stated:
“As readily seen, the version of the statute which is our concern (pre-1978), on its face does not define ‘permanent physical impairment’ as a condition which has been a hindrance to obtaining employment. Indeed, such a reading would make the last part of the sentence, ‘or to obtaining reemployment if the employee should become unemployed,’ totally meaningless. This phrase obviously contemplates I.S.I.F. liability where the preexisting condition is such that it reasonably could be expected to affect future attempts to obtain employment, but where that exact situation did not arise and has not arisen. The test apparently suggested is that the worker might well be expected to encounter difficulty finding another job in the event that he did become unemployed. Without this phrase, the statute could possibly be read as covering actual experiences in obtaining employment; with it, however, the intent obviously is to define ‘permanent physical impairment’ as based on the effect the condition is likely or reasonably anticipated to have on obtaining employment. This reading also prevents I. S. I. F. liability from being premised on the fortuity of a claimant’s good or bad luck in obtaining employment.” 102 Idaho at 358, 630 P.2d at 150-51.
*297The Court in today’s opinion does note this specific language also found in Gugelman :
“The I. S. I. F. points out that many of the states require that the employer have knowledge of the condition for the I. S. I. F. to be liable. In this regard we need only note that Idaho has no requirement of such knowledge and we will not judicially impose such a requirement.” Id. at 360 n. 3, 630 P.2d at 152 n. 3.
While the Court professes continued adherence to that holding, it nevertheless now imposes a requirement that the pre-existing physical impairment have manifested itself prior to the employment; while conceding the verity of Gugelman’s rule that the preexisting improvement need not have been made known to the employer, it now sees some reason, to my mind not satisfactorily explained, to hold that the employee at least should have become aware of it. The Court is clearly legislating, and in my view eroding the credibility it established by the Gugelman and related holdings. There is no more reason for judicially imposing a “manifestation requirement” (knowledge on the part of someone) than there is for imposing a requirement of knowledge on the part of the employer, which latter action the Court did not take in Gugelman. For certain the statute contains neither of these requirements, yet ‘twould have been a most simple matter for the legislature to have so worded its enactment. Perhaps it may be yet persuaded to do so, but it will be acting against the best interests of the working people and against the overall scheme having for its purpose the employment, and reemployment of those less fortunate who have been dealt less than a physically full hand, which they only discover on the event of an industrial accident which ignites a latent impairment.
In imposing a manifestation requirement the Court reasons: “ ‘Manifest’ means that either the employer or employee is aware of the condition so that the condition can be established as existing prior to the injury." (Emphasis added.) By the use of such language it is surmised that the Court’s concern is that absent some observable manifestation prior to the industrial injury, who, then, can establish that the condition was indeed pre-existing. In this very case, the condition was not known to either the employee or the employer, yet the medical testimony left no doubt that the condition pre-existed the claimant’s injury, and that the injury triggered the lighting up of the pre-existing physical impairment which theretofore was known to no one. If the Court’s concern is with other claimants in other compensation cases, is it not true that the claimant or, as in the present contest, the employer and its surety will bear the burden of proving that the condition did in fact exist and did pre-exist the injury? Such speculative worry is true in all such cases, and in civil tort actions, as well, but cannot serve as a reason for the Court’s imposition of a manifestation requirement.
Similarly, the Court states: “If the employer does not have knowledge of the preexisting condition, but the employee does, the employer will not be burdened by the lack of knowledge because it can be established that it was a pre-existing condition thereby invoking I. S. I. F. liability. However, if no one knows of the condition it could not influence an employer and cannot be considered a hindrance to employment.” The Court’s reasoning is not readily understood. If I understood it, I would attempt a response. I mention only that in the preceding cases, Curtis and Gugelman, we heard argument that an employer not advised of or knowing of the employee’s disability at the time of hiring, could not be said to have brought himself under the beneficient provisions of I.C. § 72-332(2), but were not persuaded. As in this very case, the fact that the condition existed prior to the injury, regardless of whether the employer or the employee had knowledge of that condition, was capable of proof, and was proved.
Gugelman recognized that the I. S. I. F. was created for two purposes, “both to encourage the hiring of the handicapped and, as a corollary, to relieve employers of the unfair burden of paying total permanent disability compensation when only part of *298the disability was due to the industrial accident” 102 Idaho at 360, 630 P.2d at 152 (emphasis added). The Court’s opinion in this case, however, only effectuates the first purpose, and totally ignores the second. Since the existence of a condition of which the employer is unaware, as in Gugelman, cannot influence the employer’s hiring decisions, a fortiori, it is at once clear that the second purpose necessarily influenced the Court’s reasoning, and prompted the decision in Gugelman. This instant case presents no reason for reaching a different conclusion. An employer should not be burdened by the lack of knowledge of a pre-existing condition at any time — provided only that the claimant or his employer can establish that the condition did in fact exist prior to the industrial accident. No reason exists to draw or attempt a distinction between those cases in which the employee knew of the pre-existing condition, but did not inform the employer, and those cases in which neither the employee or the employer knew of the condition. It is indisputable that in neither situation can the pre-existing condition influence the hiring decision of the employer. If it is unfair in one situation to impose on the employer the cost of paying for total disability benefits where the total and permanent disability arose only in part from the industrial accident, it is equally unfair in the other. The I. S. I. F. was established at least in part, for the purpose of relieving such an unfair burden to the employer. Not only is it inappropriate for this Court to impose a manifestation requirement, but it defeats at least in part the very purposes for which the I. S. I. F. was created.
. Although the claimant should have requested attorney’s fees on appeal in his original brief, see I.A.R. 41, he did raise the issue at oral argument. To my mind, the views expressed by Chief Justice Bakes, concurring and dissenting, are far too technical and, I might add, somewhat in conflict with those expressed recently in State v. Dennard, 102 Idaho 824, 826, 642 P.2d 61, 63 (1982) (Bakes, C. J., dissenting).