concurring and dissenting.
I.
Assuming the validity of the Court’s disposition of No. 13589, I then join that portion of the Court’s opinion which disposes of No. 14207 on grounds of res judicata. At the same time, however, because a reversal of No. 13589 would appear to provide this unfortunate claimant with a brand new format wherein he could litigate the issues belatedly raised in No. 14207,1 commend to the Court’s attention that it is highly imperative that the , Court be entirely correct in affirming No. 13589 — otherwise the claimant is left with very little other than the possibility of seeking to re-open based on change of condition or because of manifest injustice. Although the claimant’s brief in No. 13589 is thoroughly prepared with ample reference to this Court’s controlling decisions, Dean v. Dravo Corporation, 97 Idaho 158, 540 P.2d 1337 (1975); Paull v. Pre*447ston Theatres Corporation, 63 Idaho 594, 124 P.2d 562 (1942); Dunn v. Baugh, 95 Idaho 236, 506 P.2d 463 (1973); Pierstorff v. Gray’s Auto Shop, 58 Idaho 438, 74 P.2d 171 (1937); Dean v. Dravo Corporation, 95 Idaho 558, 511 P.2d 1334 (1973); Hite v. Kulhenak Building Contractor, 96 Idaho 70, 524 P.2d 531 (1974); Murray v. Hecla Mining Company, 98 Idaho 688, 571 P.2d 334 (1977); Lyons v. Industrial Special Indemnity Fund, 98 Idaho 403, 565 P.2d 1360 (1977); Francis v. Amalgamated Sugar Company, 98 Idaho 407, 565 P.2d 1364 (1977); Madariaga v. Delamer Milling Corporation, 64 Idaho 660, 135 P.2d 438 (1943); Stroscheim v. Shay, 63 Idaho 360, 120 P.2d 267 (1941); Kern v. Shark, 94 Idaho 69, 480 P.2d 915 (1971); Steinebach v. Hoff Lumber Company, 98 Idaho 428, 566 P.2d 377 (1977), and to statutory provisions of the Workmen’s Compensation Law, I.C. §§ 72-724, -732, -425, —423, -424, —422, being the same order in which they appear in the brief, presentation of oral argument in this Court and the general course of the claimant’s trial representation leave a strong suggestion that this case resembles the recent case of Sines v. Appel, 103 Idaho 9, 644 P.2d 331 (1982). Ignoring all of that, however, but, with close regard for the appeal record and the brief of both parties, I am far from persuaded that the Court today correctly turns the claimant away in No. 13589, to which I now turn.
II.
A.
Initially I note that the employer-surety places great reliance on Sykes v. C. P. Clare & Co., 100 Idaho 761, 605 P.2d 939 (1980), and they register mild bewilderment that claimant makes no mention of that case. I would assume that claimant’s counsel either saw that case as not in point, or if in point, not persuasive for reasons pointed out in the dissenting opinion of Bistline, J. A resolution of that inquiry is unnecessary to a proper determination of this claimant’s appeal, the point of law involved herein being considerably dissimilar.
B.
I.C. § 72 — 425 provides that the evaluation of permanent disability “is an appraisal of the injured employee’s present and probable future ability to engage in gainful activity as it is affected by the medical factor of permanent impairment and by nonmedical factors, such as age, sex, education, economic and social environment.” As the Court noted in Lyons v. Industrial Special Indemnity Fund, 98 Idaho 403, 565 P.2d 1360 (1977), this Court held that “[i]n addition to the medical factor of permanent impairment, the Commission must also consider nonmedical factors such as age, sex, education, economic and social environment, training and usable skills.”. Id. at 406, 565 P.2d at 1363.
In this case the claimant argues that the Commission failed to comply with its duty under I.C. § 72-425 to consider both medical and nonmedical factors in its evaluation of claimant’s permanent disability. From this the Court concludes, “The position advanced by claimant appears to be that whenever a permanent physical impairment rating is given, the disability rating in all cases must exceed the permanent physical impairment rating by taking into consideration the various nonmedical factors outlined under the workmen’s compensation law.” The Court then dismisses the claimant’s argument because “there is no such evidence in the record bearing on any disability above and beyond the physical impairment rating.” I cannot agree with the Court’s conclusion that there is no evidence in the record which would justify the disability rating above the physical impairment rating. Nor can I agree with the Court’s characterization of the claimant’s argument.
C.
Although the Court concludes that there is no evidence in the record which would justify a disability rating above the physical impairment rating, even a brief examination of the record demonstrates that there is a considerable amount of evidence in the record that would justify such a finding.
*448The record shows that the claimant began working when he was twelve or thirteen years old and that he has been employed chiefly as a mechanic since that time. It reveals that Mr. Houser had an eighth grade education and that Mr. Houser was concerned with his general lack of education. The record also reveals that Mr. Houser was given various tests for skills and abilities by Opportunities Unlimited, Inc., and that the results were as follows:
“In the Peabody Individual Achievement Test, Mr. Houser scored in the fourth grade, fourth month in mathematics, or at the 5th percentile, when compared with adults. In reading recognition, Mr. Houser scored at the sixth grade, sixth month, or 8th percentile; whereas in reading comprehension, Mr. Houser scored in the ninth grade, second month, or 25th percentile. In spelling, Mr. Houser scored in the eighth grade, fourth month, or 12th percentile, and in general information, Mr. Houser scored in the eleventh grade, fifth month, or 37th percentile. The total test score indicated Mr. Houser scoring at the eighth grade, or 11th percentile, when compared with an adult population. When compared with academic high school seniors, Mr. Houser scored at the 45th percentile in the Bennett Mechanical Comprehension Test. Mr. Houser scored at the 5th percentile on the Differential Aptitude Test (space relations), when compared with high school seniors. The Revised Minnesota Paper Form Board Test indicated that Mr. Houser scored at the 15th percentile, when compared to applicants for electrical and mechanical and maintenance work.
“In physical aspects, Mr. Houser scored in the 5th percentile in the Minnesota Rate of Manipulation Test. Mr. Houser was unable to complete the VALPAR Small Tools (mechanical) section, owing to pain in his lower back. In the VALPAR Whole-Body Range of Motion, Mr. Houser scored in the 80th percentile, indicating some pain in his left knee, as well as pain in the lower-back region. In the VALPAR Eye-Hand-Foot Coordination, Mr. Houser scored at the 84th percentile.”
The record is replete with testimony of the claimant and his wife that he is in continual pain as a result of the knee injury. Although Dr. Taylor, the orthopedist who performed claimant’s knee surgery, stated that from a medical viewpoint he could find nothing1 to substantiate the claimant’s complaints of pain, Dr. Slickers, the physician who has been seeing Mr. Houser regularly since the surgery, testified:
“We do have some indicators that the knee isn’t right. He has some arthritic changes, he, occasionally gets effusion and he definitely has a lot of pain to the point he can no longer perform his previous tasks. We may not say this equals the pain, but, none the less, there is evidence, there’s pathology, maybe not to the point that it is affecting him but I can’t judge that. You don’t have a thermometer to stick in there and measure pain.”
The record also contains testimony by Dr. Slickers that Mr. Houser was unable to return to his former line of work due to the pain and swelling in his knee. The testimony of Dr. Taylor does not contradict that of Dr. Slickers. Dr. Taylor merely stated that there was no reason of which he knew why the claimant could not engage in work as a diesel mechanic. In addition he stated, “I do not feel that [the claimant] has sufficient finding on examination of his knee that would be a limiting factor to him to prevent him from returning to ordinary gainful employment.”
The record also contains testimony by the claimant to the effect that he injured his back as a result of his knee giving out and that he has been in pain as a result of that injury since the injury occurred. Dr. Taylor testified that Mr. Houser’s knee was not unstable as a result of the injury and the resulting surgery. Dr. Taylor also testified that he did not consider claimant’s back *449injury in the impairment rating. However, the fact of this subsequent injury, like the facts discussed above, was certainly “evidence” in the record which might have justified a disability rating in excess of the impairment rating for claimant’s knee.
D.
The Court misconstrues the claimant’s argument when it states that “[t]he position advanced by claimant appears to be that whenever a permanent physical impairment rating is given, the disability rating in all cases must exceed the permanent physical impairment rating by taking into consideration the various nonmedical factors outlined under the workmen’s compensation law.” I believe that the claimant’s contention is that in this case the Commission did not give proper consideration to the nonmedical factors in its evaluation of his total disability. The record appears to support the claimant’s contention.
In its Findings of Fact, under part II (Employee Status & Wages), the Commission states:
“On January 1,1978, claimant was employed by defendant Southern Idaho Pipe & Steel, Inc., and was earning $170.00 per week as a diesel mechanic. On January 9,1978, claimant (born July 9,1944) was a married man with two minor children, whose dates of birth are July 3,1978, and July 29, 1967.
“Since he was thirteen years old, claimant’s major experience has been as a diesel mechanic.”
Under part V (Permanent Partial Disability) the Commission reviews the medical testimony that was presented and finds, “based on conflicting evidence, that as a result of an industrial accident sustained by claimant on January 9, 1978, claimant suffers a permanent partial disability of 10% loss of the leg at the hip.” Despite the clear mandate of the legislature and of this Court, nowhere in this section of the Findings of Fact does there appear to be any consideration of nonmedical factors, such as age, sex, education, economic and social environment. In fact, the language of the Commission’s findings suggests that only the “conflicting” medical testimony was considered in this case.
It would not be appropriate to presume that Dr. Taylor considered nonmedical factors in evaluating Houser’s permanent physical impairment. The evaluation of permanent physical impairment is governed by I.C. § 72-424, which provides: “ ‘Evaluation (rating) of permanent impairment’ is a medical appraisal of the nature and extent of the injury or disease as it affects an injured employee’s personal efficiency in the activities of daily living, such as self-care, communication, normal living postures, ambulation, elevation, traveling, and nonspecialized activities of bodily members.” The evaluation of permanent physical impairment therefore should not involve consideration of nonmedical factors such as age, sex, education, and economic and social environment. In this case, Dr. Taylor’s testimony indicates that the nonmedical factors were not considered in his evaluation of Houser’s permanent physical impairment.
The Commission must follow the guidelines established by the legislature in determining a claimant’s total disability. I.C. § 72-422 specifically states that permanent physical impairment “is a basic consideration in the evaluation of permanent disability, and is a contributing factor to, but not necessarily an indication of, the entire extent of permanent disability.” (Emphasis added.) I.C. § 72-425 states that the evaluation of permanent disability “is an appraisal of the injured employee’s present and probable future ability to engage in gainful activity as it is affected by the medical factor of permanent impairment and by nonmedical factors such as age, sex, education, economic and social environment.” (Emphasis added.)
As a general rule, I believe it would be inappropriate to presume that the Commission considered the factors found in I.C. § 72-425 where no such consideration of the factors appears in the record. There is no way for a claimant who is denied compensation, or for this Court in reviewing on appeal such a denial, to on a bare record *450determine whether or not the Commission has complied with its statutory duty. It is especially inappropriate to presume in this case that the Commission considered nonmedical factors, since the language in its Findings of Fact is that only the “conflicting” medical evidence was considered. The Court side-steps this whole issue by casually stating that there is no evidence in the record which would support a disability rating above the physical impairment rating. Even the briefest review of the record, however, demonstrates that this simply is not the case. Since there is no indication that the Commission considered nonmedical factors in determining claimant’s disability rating, there should be a reversal of the Commission’s order, with directions that on remand it reconsider and restate its findings delineating therein the application of the above-mentioned statutory law to claimant’s medical condition.
APPENDIX
Dr. Taylor’s negative testimony was, as pointed out in the Court’s opinion, predicated upon the peculiar stance that he simply does not honor anyone’s “subjective” complaint that he is suffering pain. This seems strange indeed when thousands of practitioners throughout the country routinely hear subjective complaints of pain and prescribe various medicines which hopefully will provide the paying patients with relief. In essence, Dr. Taylor, who does not accept as valid complaints of pain which cannot be objectively substantiated, states only that he is unable to come up with any objective findings which substantiate claimant’s recurring pain. This would undoubtedly be true in countless thousands of cases, but how much worth should such negative testimony be given, and especially when it is always available? The answer is found in Beaver v. Morrison-Knudsen Co., 55 Idaho 275, 289, 41 P.2d 605, 610, where the Court stated, as is generally the law: “Positive expert testimony will prevail over negative expert testimony.” To which may be added for a long time this Court has adhered to the rule that in a case like this, where Dr. Taylor’s testimony was not taken before the Commission, the Court is in as good a position to evaluate its weight and credibility as was the Commission — both reading only a cold record. Today’s decision by the Court lends much strength to the wisdom of that rule. Another rule which certainly has some applicability here is that which allows less credence to the testimony of an examining physician as against that of the treating physician. Dr. Taylor conceded that he made the one examination of claimant solely for the purpose of furnishing a report to the surety.
Dr. Taylor’s examining expert stance included a staunch refusal to give any consideration to the claimant’s history as related by claimant, and an apparent disinclination to make any attempt at independent corroboration. For instance, these indicative excerpts:
“Q. And if an individual has what we would call a low tolerance for pain, in other words, they can’t accommodate the pain or get along with the pain, that would be more disabling to a person who had a high tolerance for pain and could stand a lot of it; is that right?
A. Well, I would — I dislike using the word ‘disabling.’ I think it’s an interpretative thing. And I think people that have pain can still, you know, they can still function satisfactorily and adapt to their conditions.
Q. Dr. Slickers stated that in his opinion this matter of Mr. Houser’s was now chronic. Would you agree with that?
A. I think I would use the term ‘stable.’
Q. Stable or chronic. What’s the difference between—
A. I would use the term ‘stable.’ Dr. Slickers can use whatever term he wants.
Q. Would Dr. Slickers be correct if he said in his opinion it would be chronic?
A. I would not venture an opinion as to what Dr. Slickers’ conclusions are.
Q. Did you check this man as to his sleeping habits?
*451A. I didn’t sleep with him, but I do have some comment on my physical as to what
Q. What do you have in your notes?
MR. BARRETT: As to what the man told him about his sleeping?
MR. McCARTHY: Right.
WITNESS: I have no notation here about sleeping habits.
BY MR. McCARTHY:
Q. Well, if it was brought out in the testimony that since the date of this injury to the present time that either he had either slept on the floor in their home or in a special davenport that they have acquired and he has not slept with his wife one night since this injury because of his inability to sleep, would that, in any way, change your opinion?
A. Not at this point. I would certainly have to have a lot more information available and would be very suspicious of complaints like that, you know, any reference to a knee injury.
Q. Well, the man says that his knee pains him continually and he is unable to sleep because of pain.
A. Again, these are subjective complaints and you -have to base your opinions and findings on subsequent subjective findings on examination and that’s — to aid your conclusions. And these are not objective findings, they are subjective complaints.
Q. Well, do you take the stand, then, if you have a subjective complaint and a person says that I am suffering pain, that you do not give this subjective finding validity?
A. Not if they are — if there’s a lack of any significant subjective findings to back it up.
Q. Dr., in examining a patient, a large part of the examination is the subjective aspect of the matter, is it not?
A. You are talking about the examination or the history?
Q. The history. Isn’t that very, very important?
A. The history is important, yes.
Q. And without the history, if you couldn’t obtain a history, you would be in a difficult position to make a conclusion; would you not?
MR. BARRETT: May I, for clarification, when you talk about history, this includes a lot of things besides subjective complaints of pain. Are you referring to history of pain or complete history?
MR. McCARTHY: History of pain, right. WITNESS: It’s an aid in coming to your conclusion, yes.
BY MR. McCARTHY:
Q. And did you give Mr. Houser any tests for pain?
A. Any tests for pain? '
Q. Yes.
A. On examining his knee, yes. You certainly see what the motion is and check his muscles and ligaments and see what his reactions are to the examination as to whether he has pain during the examination and whether he has discomfort in certain positions or with certain motions of the knee as you are rotating it through various ranges of motions.
Q. All right. Did he demonstrate or evidence to you any pain?
A. Yes.
Q. Yes, he did. And where, in the point of the examination, was the pain demonstrated?
A. When you moved his knee out into extension, straightening it out, he described discomfort through the knee and posterially in the knee.
Q. Did he describe it? Could you tell by looking at him that he was suffering pain, experiencing pain?
A. No.
Q. You didn’t look at him for that, you were waiting for him to tell you?
A. You look at him and he says it’s uncomfortable. He wasn’t crying, no.
Q. Would it be necessary for a person to cry to demonstrate to you sufficient pain to make it disabling?
*452A. No, it’s not necessary for him to cry.
Q. Well, when you said he wasn’t crying, what did he tell you about his pain at that time, then?
A. He just said it was uncomfortable, has a discomfort in his knee when it would move in certain positions.
Q. It would hurt?
A. It’s uncomfortable.
Q. It was uncomfortable. Could he straighten out his knee?
A. He lacked — let’s see — about five degrees of full extension of getting it out straight.
Q. And how much function was there in the knee as you observed?
A. He had nearly full range of motion. He lacked about twenty degrees of full flexion and five degrees of extension. He had no swelling of the knee. He had good ligament stability. He had very slight crepitus in the kneecap as he would move it throughout a range of motion. He had no significant muscle atrophy, or wasting of the muscles about the knee. These are all findings for a functional knee.
Q. But pain, as you stated, is not an objective finding?
A. No.
Q. And the only tests that you gave him for pain was manipulation of the knee?
A. And examination of the knee.
Q. None other?
A. I’m not sure there’s any other way to evaluate pain in the knee, other than on examination of the knee.
Q. Now, if the man testified because of pain in his knee, he’s unable to sleep, would that be of significance to you?
A. Well, certainly, it’s part of the history that you would evaluate, much like he has pain in his knee when he kneels or squats or whether he walks up and down any hill or up and down stairs. It’s one small facet, yes.
Q. And that the pain was present when he was not doing any of these other things that you mentioned and it’s a constant pain?
MR. BARRETT: Is that a question?
MR. MCCARTHY: Yes.
BY MR. MCCARTHY:
Q. I want your opinion there. If it’s a constant pain day and night.
A. He didn’t tell me — he did not relate that it was a constant pain on my history.
Q. Did you ask him?
A. I asked him when he had pain and he stated that he had pain in those conditions that I previously described. But he did not relate that it was a constant pain.
Q. It was always burning; wasn’t it?
A. Not always burning, just burning.
Q. Well, Dr. Slickers related that this pain was of a constant nature, based on his history, and is presently treating Mr. Houser for the same thing that you examined him for. Would that, in any way, change your opinion?
A. No. I would have to hear that from the patient, not from Dr. Slickers. I can’t rely on somebody else’s history. I would have to have a history of my own.
Q. Perhaps, your history, then, isn’t complete; is that correct?
A. Are you inferring that or saying that?
Q. I’m asking you, is your history complete?
A. It’s complete as far as I was concerned, yes.
Q. As far as you were concerned, on one examination?
A. Yes.”
. See Appendix.