dissenting:
The facts of this case need to be clarified. Claimant had a pre-existing impairment consisting of rheumatoid arthritis. On June 8, 1976, he incurred a knee injury in the course of his employment causing a 10% impairment for which the surety paid medical expenses and permanent partial disability payments. The surety represented to claimant at the time of the compensation agreement that he could “reopen” the settlement at any time within five years of the accident by having the doctor notify the surety. Within five years of the accident the doctor did notify the surety, which began negotiating with claimant. More than six years after the date of the accident, claimant, on June 29, 1982, filed a request with the commission to review the agreement and then for the first time asserted a claim for permanent total disability against the I.S.I.F.
The I.S.I.F. had no notice of any claim prior to this time, nor notice of the negotiations between the claimant and the surety. Both the surety and I.S.I.F. contested the factual allegations and defended on the grounds that the claim violated the statute of limitations. The commission determined that there was no change in the 10% impairment resulting from the knee injury, so that no grounds existed to review the previous agreement and therefore the commission did not reach the legal question of whether the application to review the surety’s settlement agreement was barred by the statute of limitations. As against I.S. *276I.F., the commission made a factual determination that the knee injury had caused a “flare-up” of the pre-existing arthritis condition, resulting in claimant’s condition degenerating to permanent total disability. The commission further made a legal conclusion that there are no time limits on a claim against the I.S.I.F. Therefore, the surety was not required to pay any further benefits, but I.S.I.F. was liable for permanent total disability benefits less the amounts previously paid by the surety.
The majority does not go as far as the commission’s conclusion that no statute of limitations can bar a claim against I.S.I.F. Rather, the majority implies, ante at 386, that the case turns on whether the claimant had properly filed a request for hearing or review with the commission within the time limitations of I.C. §§ 72-706, -719.
“Moreover, the commission concluded that it was cloaked with jurisdiction where the claimant reopened his claim within the five-year time limitations set forth in I.C. § 72-706. No challenge has been made to that conclusion. Because the commission had continuing jurisdiction where the subsequent application requesting total permanent disability was made within the statutory time limits, we find the I.S.I.F.’s argument without merit, as applied to this case. Had the claimant failed to reopen his case within the allowable time limits, then the arguments of the I.S.I.F. might be proper.
[Footnote] 4. Not before us is the case where the claimant failed to reopen his claim under I.C. §§ 72-706 or 72-719 within the required time limits.....” Ante at 385-386.
The “statutory time limit” in both 72-706 and -719 referred to by the majority is five years. In reviewing the referee’s decision, adopted by the commission, and the commission’s denial of reconsideration, I find no conclusion by the commission that claimant had filed for hearing or review within the five-year limit. The decision specifically stated, “It is not necessary to decide whether the claimant’s action against the Employer or Surety is barred by the statute of limitations.” Claimant’s position at the hearing was that the surety, through its representations to claimant, had waived its right to rely on the statute of limitations; and, that in no event was I.S.I.F. entitled to rely on the statute of limitations. In fact, it was uncontested at the hearing and again uncontested on appeal that the application was not filed until six years after the industrial accident. Therefore, contrary to the majority’s footnote 4, we are squarely faced with the situation in which “claimant failed to reopen his claim under I.C. §§ 72-706 or 72-719 within the required time limits.”
What the majority may be attempting to rule is that if a claim is not time barred (for any reason, including waiver) against the surety, then the claim will not be time barred against I.S.I.F. Since the application for hearing in the present case was not filed within the five-year time limit, this proposed ruling would require an implicit finding that the surety waived its rights and that the waiver is imputed to I.S.I.F. To this imputed waiver I dissent.
The I.S.I.F. is a completely separate and independent party from the surety, see Sines v. Appel, 103 Idaho 9, 644 P.2d 331 (1982), and is entitled to raise a legal defense regardless of another defendant’s waiver. To bind the I.S.I.F. because of conduct of the employer’s surety, when the I.S.I.F. was never joined as a party and had no knowledge of the proceedings, seems to be a denial of basic due process.1
We should not avoid the ultimate issue in the case of whether the time limits contained in I.C. §§ 72-706, -719, are applicable to claims against I.S.I.F. If not applicable, there would be no time limit barring claims against I.S.I.F., a result I find not reasonably intended by the legislature. *277Many industrial accident victims could have pre-existing impairments which, with enough time and age, could degenerate to alleged total permanent disability. Unless there are some time limits, former claimants could file new claims against I.S.I.F. twenty or thirty years after an industrial accident. Workmen’s compensation benefits are not intended as old-age health or retirement benefits, or to protect against the natural degeneration of the human body. These stale claims , would raise impossible evidentiary questions, and the potential for fraudulent claims would be enormous. Therefore, there must be a statute of limitations on claims against I.S.I.F. It is only reasonable that the general statute of limitations contained in I.C. §§ 72-706 and -719 also apply to claims against I.S. I.F. Other jurisdictions have ruled accordingly. Ruffin v. Albright, 121 N.J.L. 424, 3 A.2d 135 (1938); Grant v. Neal, 381 S.W.2d 838 (Mo.1964); Travelers Ins. Co. v. Austin, 521 S.W.2d 783 (Tenn.1975); Levi v. Second Injury Fund, 389 P.2d 620 (Okl.1964). The commission reasoned that since the I.S.I.F. is not specifically mentioned in the statutes, the legislature did not intend the statutes to be applicable to I.S.I.F. claims. However, neither are the surety or employer mentioned in the statutes, but this Court applies the statute of limitations to them. The statutes are applicable to “any such claim [for compensation],” I.C. § 72-706, and “any order, agreement or award,” I.C. § 72-719, which clearly must include those involving the I.S.I.F.
SHEPARD, J., concurs.. If the surety, because of its conduct, has caused the claimant to not file against the I.S. I.F. prior to the running of the five-year statute of limitations, it is the surety, not the I.S.I.F., which should suffer the consequences.