dissenting:
I would join the majority opinion if I could read the record to glean the foundation facts they assert are there. Having read the whole record, and not found those asserted facts to be therein contained, I find the opinion emanating from this Court based on facts “here-manufactured” hard to join. Both the commission and this Court misstate the record, so at bottom one might state that both are in good company.
The commission wrongly states in Finding of Fact VIII:
The Commission finds that Claimant experienced a condition of low back pain as early as March 29, 1982 and that condition continued to gradually worsen over a period, of time and was not caused by an accident arising out of and in the course of her employment with Bennett Lumber Company. (Emphasis supplied.)
No witness, either for claimant or defense, ever testified that the subject back problem of February, 1985, was either the same back problem or a continuation of the earlier back problems.
The only testimony is to the contrary, that is that Johnson had no back problems for more than a year prior to the condition caused by the heavy lifting and shovelling during the first three weeks of February, 1985, at work at Bennett Lumber.
Despite my having pointed out the commission’s misstatement to my brothers, they twice ground their ruling on the same erroneous statement, both in Part I and Part II of their opinion. In Part I:
The record shows that claimant had been enduring mechanical low back pain for some time prior to February 20,1985, the date of the alleged accident. For instance, beginning March 29, 1982, claimant had received four chiropractic treatments for her back pain and had her low back X-rayed. These treatments were not for injuries received while employed by Bennett Lumber Company. (Emphasis supplied.)
In Part II:
Claimant admitted that her low back problem existed well before the date of the alleged accident on February 20, 1985. She had seen a chiropractor for X-rays and treatment for back pain on four earlier dates — two of those dates being in 1983 and the other two dates being in 1982, one even being prior to her employment with Bennett Lumber Company. None of the back problems involved in those four visits were work related. (Emphasis supplied.)
As to the first statement above, again there is no testimony or even suggestion that the earlier and instant problems were the same or even related.
As to the second statement of the majority, it is totally incorrect to recite that “Claimant admitted that her back problems existed well before the date of the alleged accident on February 20, 1985” — never did she so testify.
Her testimony was that the lifting at work started causing problems during the first three weeks of February; she had a pain like a knife stabbing her in the back about February 12th; and that by February 20th she could tolerate working no longer. I append extracts from her testimony as Appendix A.
The problem with this case may be that the commissioners, counsel, and the majority of this Court are still living in the days before the statute was amended in 1971. Prior to 1971, a claimant had to prove a “sudden accident.” The 1971 amendment now makes it necessary only to prove that the accident be “connected with the industry in which it occurs, and which can be *246reasonably located as to time when and place where it occurred, causing an injury.” This means that if it be shown that the lifting at work over a three-week time period caused the back condition, then it is compensable.
The majority does not dispute my interpretation of the statute but avoids the issue of this appeal by writing many paragraphs on the fact that Johnson did not prove an accident happened precisely on February 20th. That was never her contention, so of course she did not prove it.
This kind of error is promoted by the commission’s claim form which requires stating a specific date. Unless counsel is wary enough to anticipate the Court or the commission are not understanding of the 1971 amendment to the Code, counsel will invariably write in a single date, setting up the condition for Justice Bakes to write as he did at page 1: “Johnson’s notice of injury and claim for benefits, filed with the Industrial Commission, alleged that she sustained an industrial accident and injury on February 20, 1985.” Of course she did not prove an accident on that date, nor did she try to, nor was she required to.
The commission should change its form, counsel should be more precise in stating their clients’ claims, and this Court should honor the 1971 statutory amendment.
Also, both the commission and counsel should require more precision of witnesses relative to medical testimony. For example, here there was testimony of a 1982 “back” problem and the subject 1985 “back problem.” Were they both at L-4, 5, or was one at L-5, S-l? Were they both on the left, right or middle? Were they totally unrelated, making the later one fully compensable, or were they related so as to make only the aggravation compensable? Here again, the majority does Johnson a foul deed because, even if the subject injury were a “continuation of the earlier con-' dition” (of which there is no evidence), would not she be entitled to some compensation for the percent of aggravation?
BISTLINE, J., concurs.APPENDIX A
Q. (By Mr. Aherin) Tell the Commission the nature of why you missed work on February 11, 1985.
A. Well, the week before, my back had been starting to get sore. I went through the weekend and I thought, well, it will be okay if I rest up over the weekend, which I did. And Monday morning, it was still sore. In fact, sorer. And I thought maybe — I have had a record of kidney problems when I was little and I thought maybe it would have been a kidney problem. So, I told Lanny to tell them down there at the sawmill I was going to go to the doctor Tuesday and I wouldn’t be in on Monday night.
Q. And in relation to the doctor, did you go to a doctor on Tuesday?
A. Yes.
Q. And which doctor did you see?
A. I saw Dr. Franks in Kamiah?
Q. Had you ever seen Dr. Franks before?
A. No. He was new. Dr. Cruz retired and Dr. Franks took his place.
Q. You mentioned the week before your back was hurting. Did you have any injury or something happen away from your work that hurt your back?
A. No.
Q. During the month of January, 1985, did you have any problems with your back?
A. No.
Q. What happened that first week, then, of February, 1985, in relation to your back?
A. It just — I would go down there and work and I would get done work and my back would be real sore. I would take some Doans pills and that didn’t work. Then, I would try putting heating pad on it and then that Doans rum, put that on it with the heating pad and it just didn’t help. I would go to work and it would get a little sorer and aggravate it a little more, I guess.
*247Q. Then, the following week, you didn’t feel you could make it to work?
A. Right.
Q. So, you went to Dr. Franks, I think you said, on Tuesday. Would that have been February 12?
A. February 12, yes.
Q. During that first — from February 1st — the first of February up until the morning of the 21st, which you are just talking about, did you hurt your back away from your job during that period of time?
A. On, no.
Q. When you saw Dr. Franks on February 12, 1985, did you tell him that it felt to you like you had a knife in your back?
A. I said it felt like there was a knife, a sharp pain like a knife stabbing me in the back.
Q. And this was before the alleged accident of February 20?
A. Yes. This was a week previous to that, the 20th.
Q. Isn’t it true that your back was bothering you when you returned to work on February 18?
A. It was like the week of the 4th. I just had a low — it was just a little backache. There was no knife in there no more, just a low, you know, a little ache in my back every time I bent over.
Q. This was on the 18th?
A. Yes.