specially concurring.
[¶ 26] I agree with the majority that on the record of this case a reasoning mind reasonably could have determined the Bureau’s finding that Bruns’ traumatic chon-dromalacia was a “preexisting condition” was proven by a preponderance of the evidence.
[¶ 27] I write, however, because I disagree with the majority’s conclusions at ¶ 16: “If we were to interpret this language to require proof of a ‘permanent impairment’ under N.D.C.C. § 65-01-02(26), which is defined as ‘loss of or loss of use of a member of the body,’ ‘active impairment’ would be subsumed in ‘active disability’ ” and “ ‘active impairment’ under N.D.C.C. § 65-05-15(1) does not require proof of ‘permanent impairment.’ ” Permanent impairment is defined under the workers compensation statutes as “loss of or loss of use of a member of the body.” N.D.C.C. § 65-01-02(26). “Interference with function (active impairment)” is “loss of use of a member of the body.” See Jepson v. North Dakota Workmen’s Compensation Bureau, 417 N.W.2d 184, 185 (N.D.App.1987) (concluding a preexisting condition must be accompanied by an “ac*305tual impairment” and a prorating of benefits based on aggravation is appropriate “only if the condition constituted permanent impairment” or “loss of use of a member of the body”).
[¶ 28] Interference with function (active impairment) is different than “work restriction (active disability).” The legislature clearly indicates in the aggravation statute its recognition of this distinction by its use of the word “or” between “disability” and “impairment.” N.D.C.C. § 65-05-15(1). “ ‘Disability’ is defined in N.D.C.C. § 65-01-02(13) (1995) as ‘loss of earnings capacity and may be permanent total, temporary total or partial.’ ” Saakian v. N.D. Workers Compensation Bureau, 1998 ND 227, ¶ 23, 587 N.W.2d 166. “ ‘[Tjotal disability’ exists when a worker is unable, solely because of a job related injury, to perform or obtain any substantial amount of labor in that particular line of work, or in any other for which the worker would be fitted.” Id. (citation omitted). Disability within the Workers Compensation context is an inability to perform one’s job.
[¶ 29] The legislature has, therefore, distinguished between a condition causing loss of the ability to work and a condition causing the loss of the use of a member of the body under N.D.C.C. § 65-05-15(1). Evidence of either at the time of the work injury is sufficient to establish a preexisting condition for aggravation purposes.
[¶ 30] The medical evidence in this case of pain limiting normal function and laxity of the knee is arguably sufficient to support a conclusion that Bruns suffered from an “interference with function of’ or “loss of use of’ or “permanent impairment” of his knee satisfying the requirements of a “preexisting condition” under the statute.
[¶ 31] Thus I concur in the result reached by the majority, but not with the reasoning.
[¶ 32] Mary Muehlen Maring