concurring specially:
I concur with that portion of Part II of the majority opinion which reverses the decision of the Industrial Commission because the commission imposed an improper standard of proof on the witnesses, i. e., medical certainty rather than medical probability. Dean v. Dravo Corp., 95 Idaho 558, 511 P.2d 1334 (1973). As a result, it is necessary to remand this matter to the commission for a new hearing at which the witnesses are permitted to give their medical opinions based upon the proper standard.
However, I disagree with the balance of the majority opinion as it attempts to parlay the commission’s finding that “the inhalation of dust during the claimant’s employment aggravated his pulmonary disease to a slight extent, [but] it was not the underlying cause of the disease or a major aggravating factor,” and that “occupational factors have contributed only slightly to the claimant’s present total disability,” into a conclusion that “having found that Bowman’s ‘working conditions’ contributed, even slightly, to a disability which is total and permanent, such permanent and total disability is fully compensable.” Ante at 773. In arriving at that conclusion, the majority relies heavily upon Beaver v. Morrison-Knudsen Co., 55 Idaho 275, 41 P.2d 605 (1934), affirmed on rehearing, in which this Court overruled factfindings of both the Industrial Commission and the district court and found that:
“As to the cause of the injury, it seems clear from the evidence that the inhalation of silica dust while working for the Morrison-Knudsen Company from 1928 to October, 1931, revived a latent tuberculosis condition in the employee’s lungs which in 1931 suddenly ‘lightened up’ or as the physician says, ‘blew up, all to pieces at once,’ some time between February and October, 1931, and resulted in his death.
“Now this brings us to the practical and crucial inquiry: When did the injury or ‘accident,’ if such occur?” 55 Idaho at 294, 41 P.2d at 612, on rehearing.
After having found, contrary to the Industrial Accident Board and the court below, that the inhalation of silica dust caused the revival of the tubercular condition, the Court in the Beaver case then went on to find an “accident,” contrary to the findings of the Industrial Commission and the district court. The majority opinion praises the Beaver decision as the “pioneer in awarding relief for workers afflicted by occupational disease.” The Beaver case did have a salutary effect upon the law of this state in that it prompted the legislature subsequently to enact an occupational disease law to protect workmen who are disabled as a result of diseases arising out of and in the course of the worker’s employment. However, the Beaver decision also probably pioneered the constitutional amendment to Art. 5, § 9, of the Idaho Constitution which limited 'the jurisdiction of the Supreme Court “on appeal from orders of the industrial accident board . to a review of questions of law.” We cannot ignore the language- contained in the constitutional amendment of 1935 which prohibits this Court from entering the fact-finding process as was done in the Beaver case and is being done by the majority in this case. This Court has been too prone to do just that. Lyons v. Industrial Special Indemnity Fund, 98 Idaho 403, 565 P.2d 1360 (1977); Jenkins v. Agri-Lines, - Idaho -, - P.2d -(1978), petition for rehearing granted. I would reverse and remand to the commission to hold a new hearing in this matter without concluding, as the majority has done, that the plaintiff’s illness is “fully compensable.” Ante at 773.
*325There is another reason why all of the issues in this case should be retried by the commission. As correctly pointed out in Part II of the majority opinion, not only did the commission require the medical witnesses to testify to an incorrect standard of medical certainty, rather than medical probability, “the Commission in making its evaluation of the causes of claimant’s total and permanent disability was applying the same standard of ‘medical certainty’ which it required counsel to use in phrasing questions. An ultimate finding based upon an improper application of law to the facts cannot stand.” Ante at 776. In spite of that correct statement, the majority nevertheless selectively approves “the finding that ‘occupational factors have contributed [omitting the words ‘only slightly’] to [his] present total disability’ ” in concluding that claimant’s illness is “fully compensable.” Ante at 774. Since all of the medical testimony must be retaken and reconsidered by the commission on retrial, they should not be bound to findings from the prior hearing which the majority itself has concluded were based upon an improper evidentiary standard.
On remand I would direct that the commission make new findings and conclusions upon all aspects of the case.