dissenting.
Equal protection of the laws is something more than an abstract right. It is a command which the State must respect, the benefits of which every person may demand. Not the least merit of our constitutional system is that its safeguards extend to all — the least deserving as well as the most virtuous.
Hill v. Texas, 316 U.S. 400, 406 (1942). Mr. Bill Golden will have good cause to wonder just why he and other Arkansas workers who choose to continue working after attaining age sixty-five somehow fall outside our constitutional safeguards as were so elo-quendy stated by Justice Harlan Stone.
The majority opinion fairly sets forth the facts giving rise to this appeal, but so that there will be no misunderstanding about what has been done to Mr. Golden, I will briefly recap his situation. Mr. Golden chose to continue working after age sixty-five, perhaps in large part because his social security pension benefits were only $575 per month, which is below the poverty level set by the federal poverty guidelines. He was injured on his job at age sixty-seven, and the Workers’ Compensation Commission determined that he was permanently disabled to the extent of 20% of his body as a whole. A younger worker at the same wage level and with the same disability rating would have been entitled to receive $119 per week for ninety weeks as compensation for such disability. But because Mr. Golden was receiving $575 per month in social security old-age benefits, not social security disability benefits, Ark. Code Ann. § 9 — 1 l-522(f) (Repl. 1996) deprives him of any workers’ compensation benefits at all for his permanent disability.
While I have some difficulty with the notion that the federal Age Discrimination in Employment Act prevents employers from discriminating against employees on the basis of age yet does not bar a state from enacting a workers’ compensation law that does so, I can concur in the majority’s disposition of all points on appeal except the constitutionality issue. The majority holds that Ark. Code Ann. § 11 — 9-522(f) does not violate the equal protection provisions of the federal and Arkansas constitutions. I respectfully disagree.
I acknowledge that the right to receive workers’ compensation benefits is not a fundamental right, nor is a class of workers over the age of sixty-five a suspect classification. Consequently, I agree with the majority that an equal protection analysis of the subject statute requires application of the rational-basis test, Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976), and that this legislation is entitled to a presumption of constitutionality. Amer. Trucking Assn. v. Gray, 288 Ark. 488, 707 S.W.2d 759 (1986); Lambert v. Baldor Electric, 44 Ark. App. 117, 868 S.W.2d 513 (1993). As stated in Corbitt v. Mohawk Rubber Co., 256 Ark. 932, 935, 511 S.W.2d 184, 186 (1974), quoting from Reed v. Reed, 404 U.S. 71 (1971), a classification must be reasonable, not arbitrary, and must rest upon some ground of deference having a fair and substantial relation to the object of the legislation, so that all persons similarly situated shall be treated alike.
An essential step in this analysis is to ascertain the governmental purpose or objective sought to be served by the legislation. Hamilton v. Hamilton, 317 Ark. 572, 879 S.W.2d 416 (1994); Corbitt, supra, citing Dunn v. Blumstein, 405 U.S. 330 (1971). The majority identifies two such purposes that are served by Act 796 of 1993, which enacted § ll-9-522(f). Both are expressly set forth in Act 796. One of these pertains specifically to § ll-9~522(f) and provides that it is intended “to prohibit workers’ compensation from becoming a retirement supplement.” Ark. Code Ann. § ll-9-522(f)(2). The other governmental objective stated in Act 796 as one of its primary purposes is “to emphasize that the Workers’ Compensation Commission system in this state must be returned to a state of economic viability.” Ark. Code Ann. § 11-9-101 (b) (Repl. 1996).
Having identified the governmental purposes of Act 796, the next step in our analysis is whether § ll-9-522(f), which imposes an offset or reduction of workers’ compensation benefits, dollar-for-dollar, for any social security old-age benefits or other retirement benefits received by a worker over the age of sixty-five, is rationally related to these governmental objectives, or as stated in Corbitt, whether § ll-9-522(f) has a fair and substantial relation to the objects of this legislation.
Prohibition of workers’ compensation benefits from becoming a retirement supplement. The Commission construed this objective to mean that § ll-9-522(f) is intended to prevent collection of “overlapping awards.” The majority opinion similarly characterizes the object to be “avoiding duplicate payments.” My difficulty with this characterization is that it confuses apples with oranges, i.e., workers’ compensation disability benefits are not the same as social security old-age benefits or other retirement benefits. Therefore, workers’ compensation disability payments would never be an overlapping award or duplicate payment of social security retirement benefits.
As noted by the West Virginia Supreme Court of Appeals, disability awarded under workers’ compensation is part of a comprehensive plan designed to rectify the results of an injury in the work place. State v. Richardson, 482 S.E.2d 162 (W.Va. 1996). Payments to injured workers are in lieu of such elements of damages for common law tort as lost wages, lost earning capacity, reimbursement of past and future medical expenses, past and present pain and suffering, emotional distress, and other factors. Id. The injured worker’s right to seek workers’ compensation disability benefits has been substituted for his cause of action against the negligent employer and this remedy has become his exclusive remedy. Ark. Code Ann. § 11-9-105.
Social security old-age insurance benefits do not serve the same purpose as workers’ compensation benefits. Industrial Claims Appeals Office v. Romero, 912 P.2d 62 (Colo. 1996). Social security constitutes retirement benefits that are earned by continued employment in the work force and attainment of the age of sixty-two or sixty-five or older. State v. Richardson, supra. Employers and employees contribute to the system and the benefits are, in effect, additional compensation paid by insurance as a result of having worked some period of time at some average taxable salary, except as the payments reflect the recipient’s wage contributions to the system. Id. Those benefits are neither designed nor intended to compensate for a workplace injury or replace elements of damage that might be recovered in a common-law tort action for such an injury.
Furthermore, it should be noted that a person receiving social security old-age benefits may also be employed and earn additional wages, as Mr. Golden was doing in this case at the time of his injury, without any offset against these old-age benefits, limited in amount however until age seventy. We have held that the Commission erred in denying an injured worker disability benefits, specifically wage loss, solely because the worker was receiving old-age social security benefits. Curry v. Franklin Elec., 32 Ark. App. 168, 798 S.W.2d 130 (1990). Although Curry was decided prior to the 1993 act, it is notable that in that opinion we cited with approval Meyers v. Walsh, 12 A.D.2d 371, 211 N.Y.S.2d 590 (1961), and quoted from that opinion as follows: “The fact that claimant ceased work and elected to receive social security benefits is not decisive of his right to compensation nor does such action, of itself, justify the finding that the claimant has removed himself from the labor market. Recipients of social security are permitted to work within certain monetary limitations.”
Mr. Golden’s circumstance is not at all the situation that we addressed in Cook v. Aluminum Co. of Amer., 35 Ark. App. 16, 811 S.W.2d 329 (1991), where we found a legitimate governmental objective was served in the statute that prevented an employer from being hable for benefits for wage loss while the injured worker was actually earning wages equal to the wages he was earning at the time of his injury. Mr. Golden’s workers’ compensation disability benefits were reduced because of old-age insurance benefits, not earned wage income. Consequently, a governmental objective to avoid or prohibit duplicate or overlapping benefits is not served by reducing workers’ compensation disability benefits because of social security old-age retirement benefits received by the injured worker.
Returning the workers’ compensation system to a state of economic viability. I acknowledge that § ll-9-522(f) does serve to reduce the cost of workers’ compensation insurance and is a legitimate governmental purpose. However, § ll-9-522(f) is not rationally related to achieving this purpose because it reduces, and in the case of Mr. Golden completely extinguishes, the right to disability benefits for injured workers who are age sixty-five or older and who are receiving social security retirement benefits, but yet does not similarly reduce the workers’ compensation benefits of an injured worker who is age sixty-two, sixty-three, or sixty-four, and who also receives social security retirement benefits. Nor would the workers compensation disability benefits of an injured worker age sixty-five, or older, be reduced by any sum if the injured employee was for some reason not entitled to receive social security retirement benefits. This disparate treatment of similarly situated individuals violates the equal protection guarantees of the state and federal constitutions and should not be permitted.
Finding that a law serves a governmental interest does not necessarily equate to constitutionality. Workers’ compensation insurance premiums could be reduced by legislation that denied benefits to left-handed or blue-eyed injured employees. However, simply because a governmental objective or purpose is served does not preclude consideration of a statute’s basic fairness. A review of relevant cases reveals that at the heart of equal protection analysis is a standard of reasonableness. Reed v. Reed, supra, and Corbitt v. Mohawk Rubber Co., supra, (a classification must be reasonable, not arbitrary); Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996) (classification must be reasonably related to a legitimate governmental purpose); Hamilton v. Hamilton, 317 Ark. 572 879 S.W.2d 416 (1994) (statutory classification must be reasonably related to the purpose of the statute); McFarland v. McFarland, 318 Ark. 446, 885 S.W.2d 897 (1994) (even if statute bears a rational relationship to a state interest, the distinction drawn between the classes must be reasonable); Carney v. State, 305 Ark. 431, 808 S.W.2d 755 (1991) (statute must not be unreasonable or arbitrary); Hamilton v. Jeffery Stone Co., 25 Ark. App. 66, 752 S.W.2d 288 (1988) (a classification must be reasonable, not arbitrary) Holland v. Willis, 293 Ark. 418, 739 S.W.2d 529 (1987) (classification must be reasonably related to the purpose of the statue). How in good conscience can it be contended that a law that reduces or precludes workers’ compensation disabifity benefits to an injured worker over the age of sixty-five is reasonable? It is unreasonable to deny a sixty-five-year-old Arkansan who is injured on his job the right to be compensated for his disabifity simply because, after working several years and contributing social security taxes, his old-age insurance benefits exceed the weekly disabifity benefit rate that he would otherwise be entitled to receive.
While a determination of whether a statute is constitutional should never be taken lightly, especially given the strong attendant presumption of validity, I am convinced that the statute before the court fails to pass constitutional muster. Section 9-ll-522(f) discriminates against and demeans the value of thousands of older Arkansans who choose to remain in the work force. If such a worker suffers a permanent disability and his social security benefits exceed the permanent disability benefits that a younger worker would receive and to which this older worker would otherwise be entitled, the older worker receives nothing and he has no redress. He is left without compensation for his disability, either in tort or under the workers’ compensation system. Relegation to second-class status as a member of Arkansas’ work force is not fair, it is not reasonable, and it does not pass the test of not being arbitrary or capricious. Such a statute should not be found constitutional by this court. I would reverse and remand this case for an award of benefits.
I am authorized to state that Judge Neal joins in this opinion.