dissenting on Denial of Petition for Rehearing.
For much the same reason that I dissented to the opinion of Davaz v. Priest River Glass when it was issued by a majority of this Court, I dissent to the Court’s denial of Davaz’s petition for rehearing.
In my dissenting opinion, I pointed out the glaring inconsistencies between the analysis set forth in Davaz and the analysis set forth in Lyons v. Industrial Special Indem. Fund, 98 Idaho 403, 565 P.2d 1360 (1977), and in Combs v. Kelly Logging, 115 Idaho 695, 769 P.2d 572 (1989). Today, I am even more convinced of the disparities and illogicalities among these cases.
Apparently, the rule in Idaho and the message that our opinions send to injured em*341ployees throughout this State may be summarized as follows. The Industrial Commission will determine the extent to which an injured worker is permanently disabled by an industrial injury or occupational disease by evaluating the nature of disablement, any disfigurement, the occupation of the claimant, and his or her age at the time of the injury. I.C. § 72-430. The Industrial Commission will then consider the diminished ability of the afflicted employee to compete in the open labor market where the employee makes his or her residence at the time of the hearing before the Commission. If, between the time of injury or manifestation of the occupational disease, the employee moves to a less profitable labor market, he or she is penalized because the Commission will evaluate permanent disability based on the new labor market and the market where the employee lived at the time of the injury or manifestation. This penalty occurs regardless of the reason for which the employee moved and is the result of our opinion in Lyons v. Industrial Special Indem. Fund, 98 Idaho at 407 n. 3, 565 P.2d at 1364 n. 3. If, however, the employee (such as Davaz in this case) is so motivated to find new employment that he or she uproots his or her life and family and moves to a better labor market after the injury and before the hearing, that employee’s permanent disability is evaluated only with respect to the new labor market and is necessarily thereby decreased. Naturally, the determination of a “better” labor market is left to the Commission and in my view, requires far more detailed findings of fact than were present in the record of this case.
Perhaps this Court believes that employees who are reasonably well-paid, thanks to their diligence in job-hunting, should be prevented from “double-dipping” or receiving greater disability benefits than the injured persons who choose to remain in their original residence. The reasoning behind such a result is flawed, however. Consider the following scenario. Injured employees in this State will learn from the Davaz opinion that before the Industrial Commission hearing takes place, they should either stay where they lived at the time of their injury or manifestation of occupational disease, or move to a less profitable labor market. According to Lyons, both labor markets will be evaluated by the Commission when it determines the employee’s permanent disability benefits. Lyons, 98 Idaho 403, 565 P.2d 1360. After our Davaz opinion, an injured employee will unquestionably not be so diligent as to find a job in a better-paying market (at least not before the Industrial Commission hearing) because that employee will undoubtedly receive lower disability benefits, with this Court’s blessing. (Indeed, our decision in Combs expressly told injured persons that they do not have to relocate. Combs v. Kelly Logging, 115 Idaho at 697-98, 769 P.2d at 576-77). After the hearing, of course, an injured person can move to the better labor market and continue to receive higher benefits than will Neil Davaz. Thus, whatever financial considerations there were to the decision of the Commission and this Court will be eliminated. In addition, the injured person who delayed the move to a profitable labor market has lost the economic and possibly personal benefits which accompany gainful employment.
Not only is the decision in Davaz v. Priest River Glass a travesty of justice, it is patently illogical. I could not disagree more with the original decision and the denial by this Court of Davaz’s petition for rehearing.