(dissenting)—I concur wholeheartedly in Justice Hale’s dissent.
To the considerations there advanced' I would add these observations. Cases such as this require this court to construe the industrial insurance legislation of our state. At risk of stating the obvious, that legislation was intended to be remedial.
The common law system governing the remedy of workmen against employers for injuries received in hazardous work is inconsistent with modern industrial, conditions. In practice it proves to be economically unwise and unfair. Its administration has produced the result thát little of the cost of the employer has reached the workman and that little only at large expense to the public. The remedy of the workman has been uncertain, slow and inadequate. Injuries in such works, formerly occasional, have become frequent and inevitable. The welfare of the state depends upon its industries, and even more upon the welfare of its wage-worker. The State of Washington, therefore, exercising herein its police and sovereign power, declares that all phases of the premises are withdrawn from private controversy, and sure and certain relief for workmen, injured in extra hazardous work, and their families and dependents is hereby provided regardless of questions of fault and to the exclusion of every other remedy.
(Italics mine.) Laws of 1911, ch. 74 § 1; RCW 51.04.010.
Mr. Urban was injured on August 8, 1962. The claim was closed October 5, 1962 with no award for permanent partial disability by the Department of Labor and Industries. Mr. Urban appealed. The department then reopened the record, holding the appeal in abeyance until February 21, 1963 —for 4% months. At that time Mr. Urban’s claim was again closed without the award, and he again appealed. The hearing examiner prepared an affirmance, to which exceptions were taken on May 5,1964. On August 18,1964, the Board of Industrial Insurance Appeals rejected its examiner’s decision and reversed the departmental orders. Mr. Urban, unfortunately, died 3% months before the glacial administrative process of the department had determined he was entitled to relief.
*798Had the department not reconsidered its- original denial of an award for permanent partial disability, Mr. Urban’s widow, assuming the same chronology, would have been some $875 wealthier. Instead, despite the fact that Mr. Urban was found to be entitled to an award for permanent partial disability, and despite a superior court reversal of the board’s cancellation of the award due to Mr. Urban’s death, the widow is still awaiting payment while the machinery of justice slowly grinds toward final disposition.
The majority treats the existence of an order of award as a condition precedent to the operation of the'proviso, which leads me to conclude that the evil which they believe the legislature sought to remedy was the lapse of awards which had been adjudicated but were unpayable because of the decisions in Ray v. Industrial Ins. Comm’n, 99 Wash. 176, 168 P. 1121 (1917) and Zahler v. Department of Labor & Indus., 125 Wash. 410, 217 P. 55 (1923). That is, of course, a possible strict construction.
Justice Hale treats the existence of an injury compensa-ble as a permanent partial disability as the condition precedent to the operation of the proviso, making the relief co-extensive with the right. That is the reasonable construction.
The statute requires judicial construction. I am concerned that it should be necessary to restate at this time that the purpose and intent of industrial insurance is remedial and that such legislation should be liberally construed to accomplish its beneficient objectives. As the statute must be construed, realism requires that we recognize the relative ease of access to the legislative process for correction of a possible error in our construction of the so-called legislative intent. The classes of persons affected by this suit are respectively employers making payments into the industrial insurance fund and the widows and children of injured workmen who die during the administrative processing of a permanent partial disability award from causes not related to the original injury. The former class is cohesive, politically active, and well aware of its economic in*799terests. The latter class has no. unity of. interests apart from the circumstances of this lawsuit, is not .politically active as a class, and is less aware of both its legal and political interests. It maintains neither, lobbyists nor legislative counsel. • •
These considerations do not constitute this court a super-legislature. But it is suitable for this court, in a case in which various constructions of a statute contend for recognition, to consider the consequences of its action in the selection of one of those interpretations. As to employers paying into the industrial insurance fund, the effect of this case is, at most, minute. Persons similarly situated to the plaintiff are not found on every street corner. As to the statutory beneficiaries, this case may be of extreme importance. If in weighing the interests involved we discount the cost to the employer by the ease with which he may secure legislative consideration of his interests, and multiply the importance to the statutory beneficiaries of a recovery by the difficulty with which they could obtain legislative redress, I think the balance of justice inclines rather rapidly towards the plaintiff. Such jurisprudential considerations are by no means novel, cf. C. Peck, Role of the Courts and Legislatures in the Reform of Tort Law, 48 Minn. L. Rev. 265 (1963), and I believe that they are appropriate for our consideration in this area of law, which would never have been born had it not been for the failure of the common law of torts and of common law judges to adequately adapt to the realities of modern industrial production. See Laws of 1911, ch. 74, § 1, quoted supra.
One further observation on the merits is in order. The majority has relied upon Curry v. Department of Labor & Indus., 49 Wn.2d 93, 298 P.2d 485 (1956), and Albertson v. Department of Labor & Indus., 28 Wn.2d 750, 184 P.2d 53 (1947). Albertson characterized a claim prosecuted on behalf of surviving children as one “by operation of law” and excluded the children from the benefit of the provisos. There is no point in discussing the court’s rationale because the court failed to express one. It simply ignored the provi*800sos without attempting to analyze them. Curry engages in general discussion as to the relation between assignability and survivability of claims in order to justify a conclusion that the claim would not survive under the statute without benefit of the provisos. It then relies on Albertson for the conclusion that- a claim for permanent partial disability does not survive under the first proviso.
Lightle v. Department of Labor & Indus., 68 Wn.2d 507, 413 P.2d 814 (1966) (Ott, J.), carefully distinguished the Curry and Albertson cases. The majority is correct that the result of those cases is consistent with the result of Lightle. The rationale of Lightle and its analysis of the legislative intent are, however, utterly irreconcilable with the lack of analysis in Albertson and sterile stare decisis in Curry.
I must therefore join Justice Hale in preferring a recent analogous case, construing the statute with reference to the legislative intent, to cases in point whose lack of rationale and hostility to clearly expressed legislative intent have not improved with age.