dissenting on Issue Three and Four.
[¶ 63.] I must dissent to the majority’s decision on Issue Three and Four. The issue here is which of two statutes applies. The majority uses the last injurious exposure rule found in SDCL 62-1-18 and Department applied the apportionment statute found in SDCL 62-4-29. I think that the rationale for using the apportionment statute is well founded in fact and law and should determine these issues.
[¶ 64.] SDCL 62-4-29 states:
As to an employee who before the accident for which he claims compensation was disabled and drawing compensation under the terms of this title, the compensation for each subsequent injury shall be apportioned according to the proportion of incapacity and disability caused by the respective injuries which he may have suffered.
*474[¶ 65.] The key to the majority’s decision is its assertion that Kassube fails to meet the two prong test of the apportionment statute in that he was not disabled and drawing compensation; therefore, the apportionment statute does not apply and the entire case must be sent back for a further adjudication. Let us examine the foundation of that assertion.
[¶ 66.] The workers’ compensation statutes do not define the term “disabled” alone but do define temporary disability and total disability. Total or partial temporary disability is defined as “the time beginning on the date of injury, subject to the limitations set forth in 62-4-2, and continuing until the employee attains complete recovery or until a specific loss becomes ascertainable, whichever comes first.” SDCL 62-1-1(8). An “ascertainable loss ... becomes ascertainable when it becomes apparent that permanent disability and the extent thereof has resulted from an injury and that the injured area will get no better or no worse because of the injury[.]” SDCL 62-1-1(2). Permanent total disability, as described in SDCL 62-4-53, is discussed in Issue Two, supra.11 We agreed with Department’s determination that Kassube met the criteria for permanent total disability. However, that determination was not made until after this proceeding commenced. Kassube filed his petition for hearing on March 2, 1998 and that was prior to the injuries sustained while employed at Triple R.
[¶ 67.] Dr. Bert gave his opinion that Kassube had a ten percent permanent partial disability in 1996. Dr. Wayne Anderson conducted an independent medical evaluation in February 2000 and also noted that Kassube had an impairment of his neck consistent with Dr. Bert’s opinion. There is sufficient evidence in the record to show that Kassube was disabled to some extent prior to the time of the September 1998 injury. The first prong of the test is met because Kassube was disabled.
[¶ 68.] Let us examine the compensation prong of the test. The workers’ compensation statutes do not define the term “compensation” alone but they do describe the computation for benefits based on the extent of disability. See, e.g., SDCL 62-4-2 (describing the waiting period for temporary disability benefits); SDCL 62-4-3 (describing amount of temporary total disability compensation); SDCL 62-4-5 (describing compensation for partial disability); SDCL 62^1-7 (describing compensation for permanent total disability). Also in the chapter for compensation of injury or death related to workers’ compensation is a provision for necessary medical and hospital expenses to be borne by the employer. See SDCL 62-4-1.
[¶ 69.] Compensation of work related injuries is also discussed in the chapter entitled “Workers’ Compensation Insurance.” See SDCL ch 58-20. Am employer may have liability for indemnity compensation or medical losses which includes “payment made to or on behalf of the injured worker for medical costs, loss of wages or injuries resulting in ... [a disability] as defined in §§ 62-1-1, 62-4-1, and 62-4-6.” See SDCL 58-20-22 and 58-20-23. Construing the statutes of SDCL ch 58-20 and ch 62-4, we find that an injured worker is receiving compensation when medical expenses are being paid by an employer for the - benefit of the injured worker. We must conclude that Kassube was drawing compensation for his ongoing medical treatments at the time of his September *4751998 injury, and the second prong of the test is met.
[¶ 70.] The majority distinguishes Iowa precedent that is clearly on point. The Iowa Supreme Court considered a statute similar to SDCL 62-4-29. See generally Excel, 654 N.W.2d at 899. The employee in that case had filed a claim in 1997 for a 1995 injury and then filed a claim in 1999 for a 1997 injury. A consolidated hearing was held, and therefore the determination of compensation on the first injury had not been made at the time a claim was made for the later injury. Id. at 894-95. Even though the employee was not receiving compensation at the time of the second injury, the court recognized that “compensation awards are made retroactive to the date of injury and we apply the statute in the same manner.” Id. at 899. The Iowa Supreme Court has stated that “the statute applies even though the employee is not receiving but is entitled to receive such benefits at the time of the secondary injury ... because benefits are retroactive to the date they are due.” Mycogen Seeds v. Sands, 686 N.W.2d 457, 466 (Iowa 2004) (citing Excel, 654 N.W.2d at 899).
[¶ 71.] The majority’s reliance is also misplaced on the precedent that it follows. After reviewing the cases in which the last injurious exposure rule has been applied, I observe that those cases have involved recurrent injuries or an aggravation of a preexisting injury or condition. This rule has not been applied where there are injuries to two distinct body parts such as in this case. In addition, the apportionment of compensation is a factor generally making the statute somewhat difficult to apply. In this case, however, there is evidence of a ten percent whole person impairment rating for the neck and five percent for the back injury. I agree with Department that the last injurious rule easily applies to successive injuries to the same area of the body but, in this case, where there are two separate and distinct conditions, apportionment is the proper application of the law. In order for injuries to be apportioned, “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.” 5 Larson’s Workers’ Compensation Law § 90.04[3] (2000). Here there is clearly a neck injury that existed prior to the back injury producing some degree of disability before the accident and continuing to operate as a source of disability after the accident.
[¶ 72.] Evidently a problem is that we find a paucity of authority for the use of the apportionment statute in South Dakota, even though it was enacted in 1917. Regardless I am convinced that its use in this case based on the facts as developed in these proceedings is correct. We must give effect to legislative enactments to the fullest extent possible, and the content of the workers’ compensation statutes lies within the province of the legislature.
[¶ 73.] Additionally on this matter, the record clearly shows that the facts determine which statute should apply. The administrative agency has determined that the apportionment statute applies. This Court has often ruled that it must not substitute its judgment for that of the fact-finder unless clearly erroneous. Mettler v. Sibco, Inc., 2001 SD 64, ¶ 7, 628 N.W.2d 722, 723; Lends His Horse v. Myrl & Roy’s Paving, 2000 SD 146, ¶ 9, 619 N.W.2d 516, 519; Johnson v. Albertson’s, 2000 SD 47, ¶ 22, 610 N.W.2d 449, 453; Abild v. Gateway 2000, Inc., 1996 SD 50, ¶ 11, 547 N.W.2d 556, 559. The majority fails to show where the agency was clearly erroneous. The majority desires to use the last injurious exposure rule and substitutes its judgment and interpretation of the facts over the fact finder.
*476[¶ 74.] Finally, the result of this decision is to remand the case back for further adjudication. The great volume of this record is due for further augmentation, and no end is in sight. Workers’ compensation cases are becoming endurance contests. Incrementally the rules of the game constantly change. The last injurious exposure rule, for instance, is a court made rule; however, the legislature enacted it into law and now we face it here. Where is the speedy determination of an injured worker’s claims that was the great impetus for the adoption of the workers’ compensation scheme? It is lost in the smoke of the modern legal battlefields fought over by the competing insurance companies. To affirm the circuit court would end the battle.
[¶ 75.] I would affirm the circuit court in all respects. The undecided matter of Kurtz in Issue One should be dismissed as moot.
[¶ 76.] SRSTKA, Circuit Judge, for SABERS, Justice, disqualified.
[¶ 77.] MILLER, Retired Justice, for KONENKAMP, Justice, disqualified.. Department found Kassube to be permanently and totally disabled from and after the November 2, 1998 back injury.