(dissenting).
I respectfully dissent. I would vacate the compensation judge’s finding that the employee has sustained an additional 7% permanent partial disability. For injuries occurring before January 1, 1984, apportionment was not allowed when a work-related injury aggravated, accelerated or combined with a nonwork-related, preexisting condition to produce a disability. That was changed, however, by legislation enacted prior to the occurrence of either injury involved in this case. Minn.Stat. § 176.101, subd. 4a.
Minnesota Statutes section 176.101, subd. 4a, which has remained essentially unchanged since its adoption, allows the compensation payable for a permanent partial disability to be reduced by the proportion of the disability attributable to a preexisting disability arising from a congenital condition or traumatic incident. The statute further provides that apportionment of permanent partial disability shall be made only if the preexisting disability is clearly evidenced by a medical report or record made prior to the current personal injury. Here, the medical records clearly evidence a current whole body lumbar spine impairment, a portion of which is due to the 1989 injury. Finally, Minn. Rules 5223.0370, subp. 4C, 5223.0380, subp. 4C and 5223.0390, subp. 4C measure disability to the cervical spine, thoracic spine, and lumbar spine without regard to vertebral disc abnormality at two, three, or even four levels. A condition described as radicular symptoms with objective clinical findings at more than one vertebral level is rated at 10%. If the same symptoms involve a single vertebral level, the rating is 7%.
In this case, the employee suffered a functional impairment after his first injury in 1989. He was under permanent lifting restrictions and received compensation. Under the 1993 disability schedules, permanent partial disability ratings are arranged by functional loss, not by diagnostic criteria. The combination of the law’s interest in functional disability to regions of the spine rather than in discrete injuries to vertebral levels of the spine and the clear language of Minn.Stat. § 176.101, subdivision 4a leads to the conclusion that apportionment is appropriate in this ease. The fact that the employee’s prior condition was not rated is not determinative. As the dissenting WCCA panel member noted, the employee’s medical records are available for consideration in determining the proper rating for the 1989 injury. The compensation judge should determine the appropriate rating for the prior injury and reduce the permanent partial disability rating assigned to the current injury by the cumulative permanency previously assigned. See Minn. R. 5223.0250, subp. A.
Accordingly, the compensation judge’s finding that the employee has a 7% impairment and the award based thereon should be vacated and the matter remanded for application of statutory apportionment.