The appellant obtained a judgment, the nature and extent of which was set out in Sorenson v. Department of Labor Industries, 12 Wash. 2d 355, 121 P.2d 978. The decisive part of that opinion is found at page 364, and reads as follows:
"It seems to us that the proper solution, if respondent refuses or fails to repay the lump amount, lies in an alternative. The department should either apply the lump sum payment already made, as an advance payment on the monthly amounts, until the sum of twenty-six hundred dollars has thus been exhausted, or else it should take credit for that amount as a partial conversion after the value of respondent's annuity has been fixed and certified by the state insurance commissioner, and then continue to make monthly payments, reduced accordingly and proportionately. The department, of course, should have the right to elect which of these alternatives it will adopt and follow."
It will be understood, of course, that this paragraph is quoted from the opinion in Booth v. Department of Labor Industries,189 Wash. 201, 64 P.2d 505, and that the amount in the case at bar is $2,795.90 and not that of $2,600 which was the amount in the Booth case.
The appellant has not returned the $2,795.90 received under the first attempted lump sum settlement, therefore the department had the alternative (1) of applying the $2,795.90 as an advance payment on the monthly amounts until it has been exhausted, or (2) it should take credit for *Page 579 $2,795.90, as a partial conversion after the appellant's annuity has been fixed, and then make monthly payments, reduced accordingly and proportionately.
Upon electing the first alternative the department would be obliged to pay a pension in the amount of thirty-five dollars to appellant for the rest of his life, beginning at the time the $2,795.90 was exhausted as advance payments. Under the second alternative, the department would pay a pension of $17.50 per month for the rest of appellant's life, beginning immediately, the same being the amount left after a partial conversion.
The department elected to follow neither of these authorized alternatives. It chose instead to disregard the mandate of this court by paying the appellant $1,204.10, as a lump sum settlement, and closing the claim. This affirmatively appears from the department's files, which are a part of the record in this case and which reveal the following sequence of events as of the date each instrument bears:
"April 7, 1942
"Mr. L.M. Rickerd Secretary of Joint Board Department of Labor and Industries Olympia, Washington
Re: Edwin Sorenson vs. Dept. of Labor Industries. Claim No. 856081
"Dear Mr. Rickerd:
"In regard to the decision handed down by the Supreme Court in the above matter on January 1, 1942, the Supreme Court authorized the department, in settlement of this matter, to follow the formula prescribed in Booth vs. Department of Labor and Industries, 191 Wash. 201, and treat the lump sum payment previously awarded to Mr. Sorenson, as an advance payment on his monthly pension and when exhausted, reinstate his payments, or else take credit for the sum of $2795.90, as a partial conversion and continue to make the monthly payments reduced accordingly and proportionately. I am also of the opinion that there is a thirdalternative available to the department which has been sanctioned by the decision of Horton vs. Department *Page 580 of Labor and Industries, 199 Wash. 212, and that is to pay Mr. Sorenson the difference between $2,795.90 and the sum of $4,000.00, which is the maximum sum payable under Rem. Rev. Stat., 7681, for the commutation of a pension. If this latter alternative, Mr. Sorenson would be entitled to a further payment of $1,204.10. In the Horton case the court said, `When, therefore, the department paid him all that it could have awarded under the law at the time of conversion, they satisfied the requirements of the statute.' (Italics mine.)
"The Joint Board should have determined which of the three alternatives it proposed to follow in the disposition of this case.
"Very truly yours, SMITH TROY, Attorney General. By EDWARD S. FRANKLIN, Assistant Attorney General."
This letter is a definite invitation to follow the Horton case and ignore the case at bar. I shall not discuss the Horton case, because only the case at bar is pertinent on the question of what its mandate was.
"April 17, 1942
"Hon. Wm. A. Sullivan Insurance Commissioner Olympia, Washington
Attention: C.E. Fullerton Re: Claim 480807 Folio 5198 William Sorenson
"Dear Sir:
"This claim was closed in 1936 with a lump sum settlement of $2,795.90 but the Supreme Court, under the Booth decision, holds that claimant is entitled to $4000.00, or a balance of $1,204.10.
"Will you kindly certify to the reserve? Mr. Sorenson was born June 6, 1885. The monthly pension, reduced because of the advance of $2,795.90, would have been $17.50.
*Page 581"Yours very truly, DEPARTMENT OF LABOR AND INDUSTRIES W.C. RINEHART Assistant Claim Agent"
"April 17, 1942
"Mr. Robert H. Harlin, Director Department of Labor Industries Olympia, Washington
Re: Claim No. 480807
"Dear Mr. Harlin:
"In accordance with your request of April 17, we have computed the present worth of a pension of $17.50 per month for an injured workmen born June 6, 1885, and find the same to be in the amount of $2,402.88. However, in this instance, may we call to your attention that the balance of the reserve originally set aside for the above claimant reverted to the accident fund following the lump sum settlement in 1936. It will therefore be necessary that the $1,204.10 to be paid this claimant be appropriated to the reserve fund from the accident fund.
"Very truly yours, WILLIAM A. SULLIVAN Insurance Commissioner By C.E. FULLERTON Statistician"
"April 22, 1942
"William Sorenson c/o Oscar A. Zabel, Attorney 1001 Fourth Pike Building Seattle, Washington
Re: Claim 480807
"Dear Sir:
"Enclosed is warrant payable to you in the sum of $1,204.10 which represents the balance due you in settlement of your pension.
"Yours very truly, DEPARTMENT OF LABOR AND INDUSTRIES W.C. RINEHART Assistant Claim Agent"
The opinion in the case at bar forecloses the question of considering any request by the appellant for a lump sum settlement previous to the judgment. No one contends that he has made any such an election since it was entered. The arbitrary action of the department in attempting to force a lump sum settlement upon the appellant creates a situation different from that existing at the time of judgment. However, under our decisions, the appellant had a right to accept *Page 582 the money as advance payments on his pension. In the absence of a written application for a lump sum settlement, made after the judgment, he cannot be required to accept it as anything else.
The department should be directed to reopen appellant's claim and keep it open for the purpose of resuming the pension payments of $17.50 per month after the $1,204.10 has been exhausted as advance payments.
The judgment should be reversed.
BLAKE, J., concurs with MALLERY, J.