dissenting.
[¶ 17] The majority, at ¶ 9, correctly concludes, in “this case, there is no question Geek’s arthritis in her left knee was a latent and underlying condition as contemplated by N.D.C.C. § 65-01-02(9)(b)(6).” “Thus,” the majority states, “for Geek to have a ‘compen-sable injury,’ she must prove that the employment trigger, here performing duties of an in-home care specialist, substantially aggravated or accelerated the arthritis in her left knee.” The ALJ specifically found it had not, and noted there was no evidence it had. Yet, the majority grasps at a doctor’s references to “a brief exacerbation” and a “temporary set-back” to return the case to the Bureau to “explain its disregard” of this “evidence.” Because, on its face, “a brief exacerbation” and a “temporary set-back” do not equate with a substantial aggravation or accelerating factor, I would affirm.
[¶ 18] The majority asserts at ¶ 10, “Pain can be an aggravation of an underlying condition of arthritis.” The only authority offered is a Michigan Court of Appeals opinion citing a concurrence in another Michigan Court of Appeals opinion. While it may be true that a Michigan Court of Appeals case can be found to support just about any proposition, the statement, as an assertion of law, appears to be contrary to the overwhelming body of law, and, as a matter of fact, appears to be wholly unsupported by any evidence in the record.
[¶ 19] Whether the employment aggravated or accelerated the underlying condition is a question of fact, not law. Larson’s Workers’ Compensation Law, § 12.25, p. 3-569 (1998). Numerous cases deal with the issue of aggravation of a pre-existing injury. The case law universally states the employer “takes the employee as he finds him.” That is, if the employee comes to the work place with an existing disease, injury, or underlying condition and an on-the-job injury worsens the prior condition, the employer will be liable for the injury. However, where there is only pain resulting from an injury, and the condition is not made substantially worse, compensation is generally denied.
[¶ 20] In Matter of Compensation of Hall v. Home Insurance Co., a doctor concluded that the claimant’s work injury did not cause any new anatomical injuries that could be observed. 59 Or.App. 526, 651 P.2d 186, 187 (1982). The work did, however, “ ‘irritate’ and ‘aggravate’” her pre-existing condition. Id. The court stated the report taken as a whole “may be construed to mean that the lifting and twisting claimant performed at work ... increased her pain but did not worsen her underlying condition.” Id. The court further stated that “[a]n increase in symptomatology without a concomitant worsening of the underlying disease is not com-pensable.” Id. (citations omitted).
[f 21] In an industrial accident case, the Utah Appellate court found that “pain” did not rise to the level of an aggravation in order to award claimant total disability benefits. Zimmerman v. Industrial Comm’n of Utah, 785 P.2d 1127, 1131 (Utah Ct.App. 1989). Zimmerman argued he should have been granted disability benefits because the industrial injury (he hurt his back while lifting a heavy pallet) aggravated his previous asymptomatic conditions. Id. at 1130. In Zimmerman’s case, the pre-existing condition was identified as Reiter’s syndrome, a disease of unknown cause, which has characteristics of arthritis, conjunctivitis, and urethritis. Id at 1129 n. 1. The court disagreed with Zimmerman that he was entitled to compensation. Id. at 1131. The court found “the aggravation the medical panel referred to was that due solely to the temporary pain experienced by Zimmerman following the accident and not aggravation of or by the preexisting conditions of spinal stenosis and Reiter’s syndrome.” Id. The industrial injury, by itself or in conjunction with the existing conditions, did not result in permanent *626impairment. Thus, the pain was not enough to rise to the level of an aggravation of the existing conditions.
[¶22] Most cases relating to the topic mention pain and aggravation as mutually exclusive terms, used in conjunction with one another. See, e.g., McCreary v. Libbey-Owens-Ford Co., 132 F.3d 1159, 1162 (7th Cir. 1997) (discussing pain and aggravation) (emphasis added). Most references are to pain as a result of the aggravation of an injury, and not to pain as an aggravation. For example, a number of eases hold work done by a claimant aggravated the “pre-existing condition by making the pain worse but it did not otherwise injure or advance the severity of [the disease] or result in any other disabling condition.” Smith v. Smith’s Transfer Corp., 735 S.W.2d 221, 225-26 (Tenn.1987). North Dakota’s requirements are similar, because for an aggravation of an underlying condition to be compensable, it must “substantially aggravate^ and act[] upon an underlying condition, substantially worsening its severity, or where employment substantially accelerates the progression of [the] condition.” N.D.C.C. § 65-01-02(9)(b)(6) (1995) (prior to 1997 changes). Thus, pain alone is not enough.
[¶ 23] In a case similar to Geek, the claimant insisted his arthritic condition was aggravated by his employment and because of the aggravation, he was entitled to compensation. Cunningham v. Goodyear Tire and Rubber Co., 811 S.W.2d 888, 890 (Tenn.1991). The court points out the list of cases cited by the plaintiff are misplaced. See id. (stating “[unfortunately, the majority of the cases cited, with few exceptions, state in one fashion or another, that when an employee with a disabling injury or disease not related to employment suffers an aggravation to the disabling injury or disease by making the pain worse, the situation does not constitute an accident as the word is used in the compensation statutes”). See also Townsend v. State, 826 S.W.2d 434 (Tenn.1992) (stating if work aggravates a pre-existing condition merely by increasing pain, there is no injury by accident). The court also states “[w]here the employment does not cause an actual progression or aggravation of the underlying disease, but simply produces additional pain, there is substantial authority that a claim is not compensable when the disease itself was not an occupational disease but originated in conditions outside employment.” Cunningham, 811 S.W.2d at 890. Finally, the court states while “Cunningham’s work for Goodyear aggravated his preexisting condition by making the pain worse ... it did not otherwise injure or advance the severity of his osteoarthritis.” Id. at 891.
[¶ 24] Whether pain is an aggravation of an underlying condition is a question of fact, and a doubtful proposition at best.
[¶ 25] I would affirm.
[¶ 26] Dale V. Sandstrom