dissenting. Once again, the Workers’ Compensation Commission has improperly employed an Act 796 analysis to a claim that is governed by pre-Act law. Its decision awarding a 2% anatomical impairment in this case results from the same flawed “major cause” analysis that we reversed in Ellison v. Therma Tru, 66 Ark. App. 286, 989 S.W.2d 927 (1999). In addition, the Commission failed to follow the law pertaining to aggravation of preexisting conditions as stated in Bearden Lumber Co. v. Bond, 1 Ark. App. 65, 644 S.W.2d 321 (1983), and other cases arising under the law that existed in 1992. Furthermore, the Commission either forgot or simply refused to apply the law on apportionment .that has governed workers’ compensation claims involving successive disabilities and impairments for four decades, which has long been part of our Second Injury Fund statute, Arkansas Code Annotated § 11-9-525 (Repl. 1996). Because I disagree with the majority decision affirming what I consider to be a plain and recurring error, I must respectfully dissent.
I. Major-Cause Analysis
Like the worker in Ellison, supra, Alvin Ray White had preexisting conditions that were aggravated by a subsequent compensa-ble injury. The record shows that the preexisting problems with White’s cervical spine, although asymptomatic when White’s current claim arose, were aggravated by the work-related injury sustained in the last employment with appellee resulting in a combined permanent anatomical impairment of 27% to the body as a whole. As was true in Ellison, supra, the Commission’s employment of a “major cause” analysis is not explicit in the present case. Nowhere does the Commission use the term “major cause” or otherwise intimate that Act 796 reasoning is employed.
Nonetheless, it is implicit that the Commission used a major cause analysis by its refusal to include White’s impairment attributable to his preexisting condition and thereby limiting his benefits to a 2% anatomical impairment, as is shown by the following excerpt from its opinion:
As explained by the Court of Appeals in its opinion remanding our prior award of 26% impairment we must determine whether the 26% impairment rating assigned by Dr. Foster is causally related to claimant’s aggravation of his pre-existing condition while taking into consideration claimant’s pre-existing condition. The record reflects that the 13% anatomical impairment rating assigned by Dr. Foster is based upon and takes into consideration claimant’s preexisting condition. As explained by Dr. Foster 11% of the 13% rating is based upon the original two level fusion surgery. The AMA Guides only allow and Dr. Foster only assigned an additional 2% for the second surgical procedure to re-do the fusion which was required as a result of the compensable aggravation. Accordingly, we cannot find that respondent is responsible for the impairment which directly attributable to claimant’s first fusion surgery which took place prior to claimant’s compensable injury. Respondent is not liable for claimant’s original compensable injury for which he received compensation benefits in Texas as well as a lump sum settlement. Using the AMA Guides, we find that claimant did sustain and has proven entitlement to a 2% anatomical impairment rating to the body as a whole. This impairment is directly related to claimant’s compensable injury with respondent for which he underwent a second surgical procedure to refuse the C5-6 level.
With regard to the functional impairment rating assigned for claimant’s loss of motion, we cannot find that claimant has proven by a preponderance of the evidence entitlement to any permanent impairment due to loss of range of motion based upon the evidence presented. The record reveals that claimant did suffer a loss of range of motion after undergoing his first surgical procedure. This is confirmed not only in the reports from claimant’s Texas physicians but also in Dr. Foster’s first examination of the claimant noting a loss of range of motion in the cervical spine. While there may have been some motion in the cervical spine due to the first fusion which failed, there is insufficient evidence in the record to determine the extent of claimant’s motion in his cervical spine prior to and subsequent to the 1993 re-do fusion which was required as a result of claimant’s compensable injury. Dr. Foster candidly admitted in his deposition that there is no way to determine based upon the evidence before him the degree of claimant’s decreased range of motion following the 1989 fusion, at the time of the 1992 compensable injury, or at the time Dr. Foster first examined claimant prior to performing the repeat fusion in June of 1993. Although the medical evidence does reveal that claimant presently has a loss of range of motion as a result of the two cervical fusion surgeries combined, we are unable to determine how much of that loss predated claimant’s compensable injury. Dr. Foster merely arrived at the 14% functional impairment rating for loss of range of motion by comparing claimant’s post-surgical motion with that of a normal person. Clearly, claimant’s cervical spine was not normal after his first surgical fusion. Therefore, it is mere speculation that the entire 14% resulted from claimant’s compensable injury. Without medical evidence establishing a baseline range of motion after claimant’s first surgical procedure, we cannot determine the extent, if any, of claimant’s loss of range of motion as a result of his compensable injury. Accordingly, we find that claimant has failed to prove by a preponderance of the evidence to an increase in his physical impairment rating based upon a loss of range of motion. Any finding based on loss of range of motion would be based upon speculation. Conjecture and speculation, even if plausible, cannot take the place of proof. [Citations omitted, emphasis added.]
Our decision last year in Ellison, supra, invalidated similar reasoning. See 66 Ark. App. at 291-92, 989 S.W.2d at 930. While Ellison involved a dispute over the extent of a worker’s loss of capacity to earn wages and this case involves a dispute over the employer’s liability for the extent of Alvin White’s successive permanent impairments, the rationale we employed in Ellison is properly applicable now.
II. Aggravation
Not only did the Commission erroneously apply a major cause analysis to a pre-Act claim, it also failed to apply the law pertaining to aggravations in effect when White was injured. As in Ellison, the Commission in this case recognized that the medical evidence abundantly demonstrated the functional impairment for which Alvin White seeks to be compensated. As in Ellison, Arkansas law at the time of White’s 1992 injury did not limit permanent disability benefits “for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment” as currently prescribed by Ark. Code Ann. § 11-9-102(5)(F)(ii)(b). Rather, the law in effect when White suffered the compensable injury for which benefits are sought in this case provided that the employer “takes the employee as he finds him” so that employment circumstances that aggravate preexisting conditions are compensable. See Public Employee Claims Div. v. Tiner, 37 Ark. App. 23, 822 S.W.2d 2d 400 (1992); see also, Wade v. Mr. C. Cavenaugh’s, 25 Ark. App. 237, 756 S.W.2d 923 (1988); Little v. Delta Rice Mill, Inc., 11 Ark. App. 114, 667 S.W.2d 373 (1984); McGeorge Constr. Co. v. Taylor, 234 Ark. 1, 350 S.W.2d 313 (1961); McGregor & Pickett v. Arrington, 206 Ark. 921, 175 S.W.2d 210 (1943).
Dr. Foster issued a report dated February 9, 1994, in which he assigned a 13% permanent anatomical impairment rating because White had undergone three spinal surgeries. Dr. Foster explicitly stated that the 13% impairment assessment “is based on an anatomical impairment rating since the patient has had three spinal surgeries for this level. This impairment rating stands regardless of any previous impairment rating.” In other words, regardless of previous assessments of White’s impairment, Dr. Foster opined that the AMA Guidelines to Evaluation of Permanent Impairment prescribed a 13% rating because White had sustained three surgeries to the area of his cervical spine involved in this claim. There is no question that the 1993 surgery performed by Dr. Foster was necessitated by White’s injury while employed by the last employer.1
Hence, this employer is liable for the consequences flowing from White’s injury, including his 13% impairment that he now has suffered due to three surgical insults to the affected area of his cervical spine, as well as his loss of range of motion. This result is compelled by the holding in Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983), where our court cited Professor Larson’s treatise on workers’ compensation law as follows:
In § 95.12 Larson stated the rule applicable to second medical complication cases which are “work-related” as follows:
If the second injury takes the form merely of a recurrence of the first, and if the second incident does not contribute even slightly to the causation of the disabling condition, the insurer on the risk at the time of the original injury remains liable. . . . On the other hand, if the second incident contributes independently to the injury, the second insurer is solely liable, even if the injury would have been less severe in the absence of the prior condition, and even if the prior injury contributed to the major part of the final condition. This is consistent with the general principle of the compensability of the aggravation of a preexisting condition.
Id. at 73, 664 S.W.2d at 325 (emphasis added). The Commission’s decision in this case is remarkably similar to the one we reversed in Ellison. Pursuant to Bearden Lumber Co., supra, we should give it the same treatment.
III. Apportionment
The problem presented by this case really arises from the Commission’s unchallenged failure to apportion White’s permanent impairment attributable to his last employment and the aggregate impairment attributable to that injury and his workers’ compensation injury in Texas. The answer to this problem is based on law that Arkansas courts enunciated thirty-two years before Act 796 was enacted, in McDaniel v. Hilyard Drilling Co., 233 Ark. 142, 343 S.W.2d 416 (1961), and that later made its way into our workers’ compensation statute as part of the Second Injury Fund law, found at Arkansas Code Annotated § 11-9-525 (Repl. 1996).2
McDaniel involved a workers’ compensation claim by a man who suffered a back injury on February 7, 1958, when he fell from a water truck. The only controversy was the amount of permanent partial disability due the worker. The employer argued that the worker was only entitled to 10% permanent partial disability due to the aggravation of the worker’s preexisting deformity of his back. Medical evidence established that the worker’s permanent partial disability was 20% to the body, with 10% attributable to the preexisting deformity that produced no symptoms before the work injury, and 10% attributable to the work injury. The Arkansas Supreme Court reversed a circuit court’s decision that affirmed the Commission’s award of 10% permanent partial disability benefits. In its decision, the supreme court addressed the apportionment issue for the first time as follows, quoting Section 59 of Volume 2, Larson’s Workmen’s Compensation Law:
“Nothing is better established in compensation law than the rule that when industrial injury precipitates disability from a latent prior condition, such as heart disease, cancer, back weakness and the like, the entire disability is compensable, and except in three states having special statutes on aggravation of disease, no attempt is made to weigh the relative contribution of the accident and the pre-existing condition to the final disability. Apportionment does not apply in such cases, nor in any case in which the prior condition was not a disability in the compensation sense ... To be apportionable then, an impairment must have been independently producing some degree of disability before the accident, and must be continuing to operate as a source of disability after the accident.”
We agree with the logic of the general rule relative to apportionment as set forth above from Larson, and inasmuch as this is a case of first impression in Arkansas, we adopt it as our own.
Arkansas is not one of the three states referred to by Dean Larson as “having special statutes on aggravation of disease.”
Id. at 233 Ark. 147-148, 343 S.W.2d at 419 (emphasis added). Thus, apportionment is only proper where an impairment independently produces some degree of disability before the accident, and continues to operate as a source of disability after the accident.
In Chicago Mill & Lbr. Co. v. Greer, 270 Ark. 672, 606 S.W.2d 72 (1980), the supreme court held that the apportionment statute was amended by Act 253 of 1979 to provide that the Second Injury Fund would be liable for any disability above that attributable to the last employer. In Harrison Furniture et al. v. Chrobak, 2 Ark. App. 364, 620 S.W.2d 955 (1981), our court reversed and remanded a case to the Commission so that a worker’s disability could be apportioned between his employer and the Second Injury Fund for disability resulting from a prior injury where the prior injury consisted of a withered left hand, arm and leg attributable to a congenital condition.3
Thus, it is plain that the supreme court had firmly established the law when Alvin White’s claim arose that where a worker suffered from a preexisting impairment or disability and sustained a subsequent work-related injury that increased that impairment or disability, the second employer was only responsible for that portion of the disability or impairment created by the second accident. See International Paper Co. v. Remley, 256 Ark. 7, 505 S.W.2d 219 (1974). Had the Commission properly applied the apportionment law, it would have held the Second Injury Fund liable for all impairment beyond that attributable to the last injury.
It is undisputed in this case that White’s preexisting impairment to his cervical spine independently produced disability before the last injury. Dr. Foster’s testimony was uncontradicted that the preexisting impairment continued and was aggravated by the last injury. Hence, the apportionment principle should have governed this case. However, the Second Injury Fund was absolved from liability.
Neither party has appealed the Commission’s decision that absolved the Second Injury Fund from liability. Apparently, White chose to challenge the Commission’s decision by arguing that it violated the law of the case. I agree with the majority that this challenge is unwarranted because, as the majority opinion correctly observes, the extent of White’s permanent impairment was not adjudicated when this claim was previously litigated.
If the Second Injury Fund had not been absolved of its liability, the burden would have been on appellee and the Second Injury Fund, not appellant, to prove what portion of his impairment was due to his second injury. But the Commission’s decision absolving the Fund of liability must now mean that the employer is “solely liable” for the combined effect of White’s preexisting condition and his injury sustained while in its employment, and not merely that portion of his impairment that is due to his second injury. Because the Commission resorted to the “major cause” analysis of Act 796 rather than the proper legal standard prescribed by Bearden Lumber Co. v. Bond, supra, when it absolved the Fund from liability, I do not understand why the majority now affirms the Commission’s failure to hold the employer “solely liable” for White’s combined permanent impairment produced after his preexisting condition .was unquestionably aggravated by the subsequent compensable injury.
It is true that Dr. Foster could not apportion White’s functional loss of range of motion between his Texas work injuries and the injury sustained in the last employment. But Dr. Foster plainly testified that the last injury aggravated White’s preexisting condition. Hence, there is no evidentiary justification for denying White workers’ compensation benefits for the combined effect of the successive impairments. Arkansas law governing this claim plainly made the last employer “solely liable” for the full extent of the injury suffered in its employment even if that injury and its ffect would have been less severe had no previous injury and disability occurred. See Bearden Lumber Co. v. Bond, supra. Moreover, a previous determination of total disability and the fact that he received workers’ compensation benefits did not make White less entitled to compensation for combined disabilities or impairments after he later managed to return to work. See Davis v. Stearn-Rogers Const. Co., supra.4
I would reverse the Commission’s 2% permanent partial disability award and remand the case to the Commission with instructions that it enter an award against the employer for 27% permanent anatomical impairment (13% based on Dr. Foster’s 1994 report plus the 14% impairment for loss of range of motion), and for such additional proceedings as may be necessary.
This is ascertainable despite the less than helpful abstract submitted by appellant, which failed to include the medical records from appellant’s Texas workers’ compensation injury as well as numerous other medical records that would have shed more light on the issues before us.
The supreme court again applied the apportionment principle announced in Hily-ard when it decided Wilson Hargett Const. Co. v. Holmes, 235 Ark. 698, 361 S.W.2d 634 (1962). Arkansas eventually made the Hilyard standard part of our workers’ compensation statute at Arkansas Statutes Annotated § 81-1313(f)(2)(h) (Repl. 1960 and Supp. 1969). The supreme court applied the statute to a claim of successive disabilities in Davis v. Stearns-Rogers Const. Co., 248 Ark. 344, 451 S.W.2d 469 (1970).
In Death and Permanent Total Disability Trust Fund v. Whirlpool Corp., 39 Ark. App. 62, 837 S.W.2d 293 (1992), Judge James Cooper of our court observed that the apportionment statute was omitted “improperly or erroneously” from the Arkansas Code of 1987 but remained in effect pursuant to Ark. Code Ann. § 1-2-103(b) (1987). It is now part of our law at Arkansas Code Annotated § 11-9-525(b)(1)-(4) (Kepi. 1996).
The Davis court stated:
The capacities of a human being cannot be arbitrarily and finally divided and written off by percentages. The fact that a man has once received compensation as for 50 percent of total disability does not mean that ever after he is in the eyes of compensation law but half a man, so that he can never again receive a compensation award going beyond the other 50 percent of total. After having received his prior payments, he may, in future years, be able to resume gainful employment. In the words of the Colorado court, he may have resumed employment as a ‘working unit’. If so, there is no reason why a disability which would bring anyone else total permanent disability benefits should yield him only half as much.
Id., 248 Ark. at 347-49, 451 S.W. 2d at 471-72 (emphasis added).