dissenting.
I write in dissent because I disagree with a fundamental proposition that the majority assumes to be true— that the director’s rule for apportioning impairment is consistent with its statutory mandate to award compensation for permanent loss of use or function “due to the compensa-ble industrial injury.” 286 Or App at 411. As I understand both the Supreme Court’s analysis in Schleiss v. SAIF, 354 Or 637, 317 P3d 244 (2013), and the Supreme Court’s historical construction of loss “due to” the compensable injury, that phrase refers to the entire impairment if it is caused in material part by the compensable injury, not just to the percentage of impairment that was caused entirely by the compensable injury. I would hold that, except when the employer avails itself of the “combined condition” apportionment process that the legislature has created, compensation for permanent impairment continues to mean the entire impairment produced by symptoms that are caused in material part by the compensable injury. To the extent that OAR 436-035-0013 (2013) is to the contrary, I would hold the rule invalid.1
I. LOSS “DUE TO” THE COMPENSABLE INJURY
A. Schleiss strongly suggests that the majority is wrong.
I begin with Schleiss, because it has already addressed— and partially resolved—the question that I understand to be at the heart of this case. As the court framed the question in Schleiss:
“Claimant asserts that, for purposes of an award under ORS 656.214, ‘due to’ means ‘caused in material part by,’ so that, if the compensable injury materially contributed to the total impairment, all the impairment is ‘due to’ the compensable injury. SAIF, on the other hand, asserts that the phrase refers to the percentage of the worker’s total impairment that was caused by the compensable injury, so that the percentage of the total impairment ‘due to’ any other contributing cause must be excluded from an award.”
*424354 Or at 643. The court in Schleiss observed that, “[o]n the surface of things, either of those proposed meanings is plausible” and, therefore, proceeded to “a detailed examination of the pertinent statutory framework” to determine the meaning of “due to.” Id.
In examining “the pertinent statutory framework,” the court in Schleiss gave particular consideration to the statutory changes that began in 1990, including the later adoption of what became ORS 656.268 (l)(b), because—-prior to the enactment of those provisions—“no statute addressed the role in [permanent partial disability] award determinations of impairment that is attributable to a preexisting condition that has combined with a compensable injury.” Id. at 649. ORS 656.268 describes when an employer shall close a claim and specifies that, at closure, the insurer must issue a notice that specifies “[t]he amount of any further compensation, including permanent disability compensation to be awarded.” See also ORS 656.268(1), (5)(c). Currently, ORS 656.268(1) specifies that the insurer shall close a claim when:
“(a) The worker has become medically stationary and there is sufficient information to determine permanent disability; [or]
“(b) The accepted injury is no longer the major contributing cause of the worker’s combined or consequential condition or conditions pursuant to ORS 656.005(7).”
If the claim is closed under the circumstances of paragraph (b), that paragraph further provides that, if “there is sufficient information to determine permanent disability, the likely permanent disability that would have been due to the current accepted condition shall be estimated [.] ” The provision for closure under the circumstances of paragraph (b) was added after the legislature modified the definition of “compensable injury” to exclude combined conditions caused in major part by the preexisting condition. Or Laws 1995, ch 332, § 30.
Schleiss describes the effect of those statutory changes in a way that should inform our analysis in the present case. As Schleiss concludes:
*425“[T]he workers’ compensation statutes now provide specific standards for determining how and when conditions that ‘combine’ workplace injuries with preexisting conditions are compensable and how and when impairment caused by such conditions can be apportioned.”
354 Or at 649. Based on that context, the court concluded that, “if a preexisting contributing cause would not qualify to reduce the impairment that is ‘due to’ a compensable combined condition under ORS 656.268(l)(b), it makes no sense to conclude that such a cause would qualify to reduce the impairment that is ‘due to’ a claimant’s compensable injury under ORS 656.214.” Id. at 654 (footnote omitted).
That conclusion describes a proposition that is logically distinct from the proposition that the majority attributes to Schleiss. According to the majority, “under the Supreme Court’s opinion in Schleiss,” claimant’s permanent disability award is subject to apportionment to eliminate the contribution from his “legally cognizable preexisting condition” of arthritis, “unless it is part of an accepted combined condition claim that remains compensable at the time of closure under ORS 656.005(7)(a)(B).” 286 Or App at 422. Phrased as a conditional proposition, the rule that the majority attributes to Schleiss for claims that are closed without the denial of a combined or consequential condition is:
If a preexisting contributing cause would qualify as a “legally cognizable preexisting condition” (as defined in ORS 656.005(24)), then it qualifies to reduce the impairment that is “due to” a claimant’s compensable injury—■ unless it remains part of an accepted combined condition.
However, the Schleiss court’s actual conclusion, expressed as a conditional proposition, is the following:
“[I]f a preexisting contributing cause would not qualify” as a “legally cognizable preexisting condition,” then it does not “qualify to reduce the impairment that is ‘due to’ a claimant’s compensable injury.”
Id. at 654. In logic terminology, the proposition that represents Schleiss’s actual holding is the inverse of the proposition that the majority attributes to Schleiss, which means that the two propositions are not logically equivalent. (For *426example, it may be true that, “if you see the sun, then it is day time.” But it is not necessarily true that, “if you don’t see the sun, then it is not day time.”) The short answer is that the holding of Schleiss is not dispositive. It is, however, significant in two key ways that the majority fails to recognize.
First, Schleiss construes the rule of apportionment stated in ORS 656.268(l)(b) as implying a legislative intention to limit, at least somewhat, the director’s ability to apportion impairment when the employer would be unable to obtain apportionment through closure under ORS 656.268(l)(b). Id. at 654. That holding is difficult to reconcile with the majority’s conclusion that the legislature’s authorization of apportionment under the circumstances described in ORS 656.268(l)(b) permits no inference that “the legislature intended to preclude other apportionment rules [.] ” 286 Or App at 415 (asserting that “any” such inference “is not apt”).
Second, Schleiss demonstrates that the Supreme Court understands “impairment” that is “due to” a claimant’s compensable injury to include impairment that is partially attributable to an “unrelated condition.” In Schleiss, the claimant had impairment of 13.8 percent due to “loss of range of range of motion” in his back that the medical arbiter rated as 67 percent “secondary to” the claimant’s preexisting degenerative joint disease and history of smoking. 354 Or at 640. Relying on OAR 436-035-0013, the department awarded the claimant compensation for only the 33 percent of his impairment that it viewed as “due to” the compensable injury. Id. In holding “that all of [the] claimant’s impairment is ‘due to’ the compensable injury for purposes of making a [permanent partial disability] award under ORS 656.214,” the court necessarily rejected SAIF’s argument—and the understanding of the department—that impairment “due to” the compensable injury means only “the percentage of the worker’s total impairment that was caused by the com-pensable injury.” Id. at 653, 655. Thus, Schleiss strongly suggests that whether permanent impairment is “due to” the compensable injury must be determined by considering the new impairment as a whole, unless the claim is closed under ORS 656.286(l)(b).
*427B. ORS 656.268(l)(b) is a limited modification of the rule that impairment “due to” the compensable injury means the entire new impairment.
Further, although I agree with the majority that “[t]he preexisting regime of statutes and rules before the adoption of ORS 656.268(l)(b) provide context for its meaning,” 286 Or App at 416, I do not agree that the context supports the majority. Rather, I understand the prior “regime” to have provided no basis for apportioning permanent impairment that is caused when the work injury combines with a preexisting condition to produce new disability.
As the majority explains, the legislature created a special status for “combined conditions” in 1990 when it altered the definition of a “compensable injury.” 286 Or App at 416-17 (citing Or Laws 1990, ch 2, § 3 (Spec Sess)); see also Schleiss, 354 Or at 644. Before that time, the administrative rules that specified the standards for disability rating of impairment simply used the “due to an injury” language of ORS 656.214 and contained no reference to apportioning impairment. See OAR chapter 436, division 35 (1988).
More significantly, case law prior to 1990 specified that, when the work injury combined with a preexisting condition to cause new disability, the disability due to that combining was calculated without discounting for the contribution that was attributable to the preexisting condition. See Barrett v. D & H Drywall, 300 Or 325, 709 P2d 1083 (1985) (Barrett II), adh’d to on recons, 300 Or 553, 715 P2d 90 (1986) (Barrett III). In Barrett II, “the worker fell off a ladder, landing on his feet and hitting his back on a brick wall.” 300 Or at 330. Those “injuries were superimposed upon” the worker’s underlying disease of osteoarthritis. Id. When the case was before us, we held that, in determining the worker’s award for permanent partial disability, no consideration could be given to the preexisting condition, because
“[a]n award of permanent partial disability is to be rated on the basis of ‘the permanent loss of earning capacity due to the compensable injury.’ ORS 656.214(5). In determining loss of earning capacity attributable to an industrial injury, impairments not related to the injury are not considered.”
*428Barrett v. D & H Drywall, 73 Or App 184, 186, 698 P2d 498 (Barrett I), rev’d, 300 Or 325, 709 P2d 1083 (1985), adh'd to on recons, 300 Or 553, 715 P2d 90 (1986) (footnote omitted).
The Supreme Court rejected that construction of impairment “due to the compensable injury.” The court explained:
“The oft-expressed maxim still applies: An employer takes the worker as he finds him. Whether the worker suffers greater permanent partial disability (measured by loss of earning capacity) because of a preexisting condition is irrelevant in deciding the amount of loss of earning capacity caused by a new injury superimposed on a preexisting condition.”
Barrett II, 300 Or at 328 (footnote omitted). On reconsideration, the Supreme Court clarified that its decision “does not require any award of compensation for that disease or for any disability that may have existed by reason thereof before the present compensable injury.” Barrett III, 300 Or at 555. Contrary to the majority’s suggestion, the Supreme Court in Barrett did not hold that there could be any apportionment for disability related to new symptoms or that claimant would be required to prove disability according to a “major contributing cause” standard. 286 Or App at 416-17. Rather, the court’s opinion on reconsideration refused to disavow its original decision and re-emphasized that any contribution from a preexisting condition to disability is irrelevant if the work accident caused a preexisting “disease to produce symptoms where none existed immediately prior to the accident.” Barrett III, 300 Or at 555. If the symptoms were new, and if “those symptoms produced loss of earning capacity, then that loss of earning capacity is ‘due to’ the compensable injury, and the statute requires an award of compensation therefor.” Id. at 555-56.
In Nomeland v. City of Portland, 106 Or App 77, 81, 806 P2d 175 (1991), we reiterated the distinction that Barrett drew, between cases in which the injury combined with a “previously asymptomatic condition” to cause disabling symptoms, and cases in which some of the worker’s “disability or loss of use or function” existed before the employment. Because it was possible in Nomeland “to *429segregate [the amount of the claimant’s hearing impairment] that preexisted his employment from that caused by the employment,” the employer was only responsible for the work-related portion of the disability. Id. at 81. However, we emphasized Barrett II's “maxim that the employer takes the worker as it finds him” and explained that, when a work injury combines with a “predisposition” to suffer disability to cause “a loss of use or function, the loss of use or function is due to the injury and is compensable.” Id. at 81.
Although the legislature subsequently modified that rule by creating a specific process for an employer to limit its responsibility when the employer believes that a preexisting condition has combined with the compensable injury, the legislature did not amended the language of ORS 656.214 to more broadly modify the rule described by the Supreme Court’s decision in Barrett. Given that context, I see no basis for departing from the rule announced by the Supreme Court in Barrett II and reiterated by us in Nomeland, except in those cases in which the employer qualifies to reduce its liability under the “specific standards [that the legislature created] for determining how and when conditions that ‘combine’ workplace injuries with preexisting conditions are compensable and how and when impairment caused by such conditions can be apportioned.” See Schleiss, 354 Or at 643, 649, 654. In all other cases, when an injury causes new symptoms of a preexisting condition, the entire permanent impairment is “due to” the compensable injury.
II. THE PROCESS MATTERS
Finally, as the majority emphasizes, claimant does not specifically contend that his disability award would have been different if employer had followed the procedure to close the claim pursuant to ORS 656.268(l)(b). Although that might be a reason for declining to reach claimant’s challenge, the majority has chosen to address the validity of the director’s rules, which requires us to look beyond the circumstances of this particular case. In holding that the director’s apportionment rule is valid, the majority’s ruling reaches cases in which the rule will produce a result that is substantively different than what the legislature intended. In the wake of Schleiss, the board has construed OAR *430436-035-0013 to avoid the result that Schleiss expressly prohibited: If the underlying condition, with which a claimant’s compensable injury has combined, does not qualify as a “legally cognizable preexisting condition,” then the employer remains responsible for the full impairment caused by the combined condition. 354 Or at 654. But identifying a “legally cognizable preexisting condition” is only the starting point under the “combined condition” process that the legislature created.
The legislature’s process also requires the employer to issue a written denial that “the accepted injury is no longer the major contributing cause of the worker’s combined condition.” ORS 656.262 (7)(b). The significance of that written denial is that the claimant has the opportunity to request a hearing, at which the employer will bear the burden of proving not only that the work injury has combined with a qualifying “preexisting condition” but also that the “otherwise compensable injury is not, or is no longer, the major contributing cause of the disability of the combined condition.” ORS 656.266(2)(a). If the employer fails to meet that burden, the denial will not be upheld, and apportionment under ORS 656.268(l)(b) is unavailable. When an employer has not satisfied the prerequisites for closing a claim under ORS 656.268(1)(b), I would conclude that apportionment of any combined-cause disability is limited by the rule described by the Supreme Court in Barrett, at least until that court says otherwise.
In contrast to the legislatively approved apportionment process, OAR 436-035-0013 allows an employer to limit its responsibility for impairment resulting from a worker’s combined condition without proving that a qualifying preexisting condition is the major cause of claimant’s impairment. I would reverse the board’s order and declare OAR 436-035-0013 invalid.
Ortega, Egan, Lagesen, Garrett, and Shorr, JJ., join in this dissent.
Unless otherwise noted, throughout this opinion referernces to the administrative rules are to the 2013 version.