(concurring specially).
I concur in the majority opinion only because of the narrow ground on which the appeal is based. Petitioner primarily argues that benefits cannot be decreased in any form and that his benefits cannot be less than he would have received had he applied for benefits under the pre-1983 statute. Employee has not made out a good case on either ground because, as the majority points out, he has not even shown the benefits he would be entitled to under the “old law.”
I write separately, however, because I believe that the statute did not contemplate the adoption of rules that ignore some types of injuries which, when added to injuries specifically mentioned in the rules, can significantly increase the disability rating of the whole body. This appears to be clear in the statute itself which states:
(b) The commissioner shall by rulemak-ing adopt procedures setting forth rules for the evaluation and rating of functional disability and the schedule for permanent partial disability and to determine the percentage of loss of function of a part of the body based on the body as a whole, including internal organs, described in section 176.101, subdivision 3, and any other body part not listed in section 176.101, subdivision 3, which the commissioner deems appropriate.
Minn.Stat. § 176.105, subd. 4(b) (1986) (emphasis added).
In another portion of the same section, the legislature declared its intent to be:
that the commissioner establish a disability schedule which, assuming the same number and distribution of severity of injuries, the aggregate total of impairment compensation and economic recovery compensation benefits under section 176.101, subdivisions 3a to 3u be approximately equal to the total aggregate amount payable for permanent partial disabilities under section 176.101, subdivision 3, provided, however, that awards for specific injuries under the proposed schedule need not be the same as they were for the same injuries under the schedule pursuant to section 176.101, subdivision 3.
Id. at subd. 4(a) (emphasis added).
Although the statute appears to allow the commissioner to adopt rules which would apportion benefits differently, nothing in the statute indicates that the legislature intended to narrow the definition of “permanent disability.”
From the record in this case, we do not know whether the commissioner’s rules were properly promulgated nor whether the effect of those rules is to eliminate injuries which the legislature intended to be considered in arriving at disability to the whole body. Thus, we are not in a position to reverse the Workers’ Compensation Court of Appeals. I would affirm on the narrow grounds stated.