(dissenting).
I respectfully dissent from the majority opinion. I believe the WCJ used an erroneous legal basis to make a finding of fact. Worker argues that, as a matter of law, if a disability is the concurrent result of a work-related accident and a non-work-related accident, the disability is compensable. Employer argues that the 1988 accident was an independent intervening (or precipitating) cause of worker’s disability. Because the disability was due to a non-work-related accident, employer states that it should not compensate worker. This issue is resolved by first looking at NMSA 1978, Section 52-l-28(A)(3) (Repl.Pamp.1987), which defines causation of a disability as being “a natural and direct result of the accident.” Nothing in the statute suggests the disability has to be the sole result, or may not be a concurrent result, of a work-related accident. Worker seems to suggest further, and I agree, that the plain words of the statute are ambiguous. I can find nothing, after searching New Mexico precedent, that addresses the exact question at hand.
To give meaning to the statute, worker cites many cases from other jurisdictions that have required compensation from an employer when its worker has suffered a non-work-related aggravation of a previous disability. Employer distinguishes these cases on the fact that the reinjury occurred while the worker was still disabled from the prior injury. See, e.g., GTE Sylvania v. Workers’ Compensation App. Bd., 73 Pa.Commw. 618, 458 A.2d 1050 (1983); Di Simone v. Underwriters Adjusting Co., 91 A.D.2d 782, 457 N.Y.S.2d 1009 (1982). Worker’s condition in this case had evidently stabilized long before the 1988 accident. However, that is a difference that does not necessarily matter. As one court put it, medical stabilization is evidence that a later reinjury is the sole cause of a later disability. That evidence does not, however, conclusively exclude the possibility that a prior accident was a part of the cause of a subsequent disability. Town of Hudson v. Wynott, 128 N.H. 478, 522 A.2d 974 (1986) (awarding compensation even though back injury stabilized prior to second injury).
Finding no guidance from New Mexico precedent or the cases in the briefs, I relied on Professor Larson for insight. He has analyzed the precedents on the subject of exacerbated pre-existing conditions. See generally 1 A. Larson, The Law of Workmens’ Compensation § 13 (1990). More specifically with respect to aggravation of an originally compensable injury, he states:
[Ojnce the work-connected character of any injury, such as a back injury, has been established, the subsequent progression of that condition remains compensable so long as the worsening is not shown to have been produced by an independent nonindustrial cause____ The case should be no different if the triggering episode is some nonemployment exertion like raising a window or hanging up a suit, so long as it is clear that the real operative factor is the progression of the compensable injury, associated with an exertion that in itself would not be unreasonable in the circumstances.
Id. § 13.11(a), at 3-510 to -517 (footnote omitted).
The following cases, cited in the margin of Larson’s work, are analogous to this one. In Brackett v. A.C. Lawrence Leather Co., 559 A.2d 776 (Me.1989), the worker injured his back at work in January 1978, but returned to full duty in January 1979. In July 1985, he was involved in an automobile accident and sneezed the next day, reinjuring his back. The court stated that even though it was likely the auto accident was the major contributing factor to the worker’s 1985 disability, the 1978 employer was liable for compensation because the evidence was that the 1978 accident was part of the cause of the 1985 disability. Id. In In re Compensation of Grable, 291 Or. 387, 631 P.2d 768 (1981), the worker injured his back in February 1978. He was released to full duties, but reinjured his back at home pulling steel pipe onto his roof. Because the evidence was that the prior injury was part of the cause of the later disability, the court reversed the denial of compensation. Id. In Town of Hudson v. Wynott, the worker injured his back in June 1976. He received medical treatment until September 1980. Between September 1980 and July 1983, the worker did not seek medical treatment for his back. In July 1983, the worker, at his own bait shop, lifted a styrofoam bait pail containing about a gallon of water and reinjured his back. The court held that, despite the three-year stabilization, the worker was entitled to benefits because the work-related incident was part of the cause of the subsequent disability and thus the direct and natural result of the work-related injury. Id. Finally, in Rich v. Vail Ballou Press, Inc., 33 A.D.2d 1088, 307 N.Y.S.2d 943 (1970), the worker sustained a back injury in May 1962. In May 1966, he did not receive benefits and did not incur lost time, so the insurer closed his case. He suffered reinjury in August 1967. The evidence was that part of the cause of the 1967 disability was the 1962 injury. Therefore, the court concluded that the 1962 employer should have compensated the worker. Id.
In the Brackett, Grable, Wynott and Rich cases, there was an apparent end to a worker’s back difficulties, much like the situation in this case. In each case, there was a non-work-related reinjury that occurred after the worker was apparently fully able to continue work, as in this case. In each case, the evidence was that part of the cause of the latter disability was the prior work-related injury, as in this case. There is nothing about the causation formulas in these cases that make their reasoning somehow inapplicable to the case at hand. Moreover, they support the view that Professor Larson’s treatise concludes that, if worker’s 1983 accident was in part the cause of his 1988 disability, that disability is compensable.
In sum, I believe that there may have been substantial evidence that there was no causal connection between the 1983 accident and the 1988 disability. Yet the record reflects a decision by the WCJ that, whether or not there was evidence of a causal connection, he was going to rule that there would be no compensation. He did so without considering whether the exertion leading to the 1988 accident was unreasonable under the circumstances of worker’s condition. See 1 A. Larson, supra p. 3-517, § 13.11(a). There is no express finding that the 1983 accident was not part of the cause of the 1988 disability. Whether the 1983 accident was part of the cause was a central issue in the case. In fact, the WCJ’s “benefits analysis” findings deal exclusively with the 1988 accident and disability. It is incongruous that the WCJ left such findings to inference from his rejection of all tendered findings not expressly adopted, unless he misunderstood the legal significance of the 1983 accident. On the peculiar state of this record, I think it manifestly just to remand for a rehearing, based on the evidence already in the record, in accordance with the legal principles described above. See Garcia v. Mora Painting & Decorating, 112 N.M. 596, 817 P.2d 1238 (Ct.App.1991).