concurring in part and dissenting in part:
I concur with that part of the majority opinion which concludes that there was adequate evidence to support the commission’s finding of a 44% permanent partial disability rating for the claimant. I disagree, however, with the majority that the appellant did not adequately raise the issue of apportionment between that portion of his 44% permanent disability which was caused by the industrial accident and that caused by his pre-existing physical impairment. Therefore, I would reverse and remand this matter to the Industrial Commission to consider the apportionment question.
I.C. § 72-406 requires that if the claimant has a “pre-existing physical impairment, the employer shall be liable only for the additional disability from the industrial injury or occupational disease.” The medical testimony was replete, and very specific, concerning the nature of the claimant’s preexisting degenerative disk disease, including testimony concerning long periods of time which he had missed from work as a result of that pre-existing condition. The majority acknowledges that evidence by stating, “The record is clear that Baldner indeed suffered from pre-existing congenital degenerative disk disease and arthritic changes prior to the time of his injury in 1977.” I.C. § 72-406 required the commission to apportion his present disability between the industrial accident and his preexisting physical impairment.,
Nevertheless, the majority refuses to require apportionment, asserting that appellant never raised the issue before the commission and raises the issue for the first time on appeal. As the majority itself points out, however, the answer filed by the defendant appellant asserted the first issue to be:
“1. The degree of permanent partial impairment/disability from which claimant is suffering as a result of this alleged accident.” (Emphasis added.)
Even if technical rules of pleadings were applicable to Industrial Commission proceedings, which they are not, that statement in the appellant’s answer clearly raises the issue of apportionment. See Thom v. Callahan, 97 Idaho 151, 540 P.2d 1330 (1975); Duggan v. Potlatch Forests, Inc., 92 Idaho 262, 441 P.2d 172 (1968); Walker v. Hogue, 67 Idaho 484, 185 P.2d 708 (1947).
I would reverse and remand this matter to the Industrial Commission to apportion claimant’s disability between his pre-existing impairment and “the additional disability from the industrial injury. ...”