(concurring in result).
[¶ 16.] There is no disputing that SDCL 62-4-7, included in the chapter in the code that establishes the amount of compensation for injury, provides for a setoff when an injured employee receives both workers’ compensation benefits and social security benefits. There is also no question that the legislature deleted the reference to 62-4-7 from SDCL 62-7-6, which is set forth in the chapter dealing with the claims procedure for a lump sum settlement after the benefits paid monthly have been established under SDCL 62-4-7. Therefore, it leads the Court to its conclusion that there is no setoff when awarding a lump sum payment of the injured employee’s attorney’s fees. There is no question that by paying these attorney’s fees, the injured employee will receive less compensation for his injury in the future. Also, the amount of his workers’ compensation benefits could be reduced again in the future by the setoff contained in SDCL 62M-7.
[¶ 17.] There is settled precedent in this state that a lump sum award is the exception and not the general rule. In Enger v. FMC, 2000 SD 48, ¶¶ 11-12, 609 N.W.2d 132, 134-135, this Court stated:
In regard to this mixed factual and legal issue, it is important to note that the general rule in South Dakota does not favor lump sum awards. As stated by this Court, “the allowance of a lump-sum award is the exception and not the general rule.” Wulff v. Swanson, 69 S.D. 539, 543, 12 N.W.2d 553, 555 (1944). Larson explains the rationale behind this policy:
Since compensation is a segment of a total income insurance system, it ordinarily does its share of the job only if it can be depended on to supply periodic income benefits replacing a portion of lost earnings. If a ... disabled worker gives up these reliable periodic payments in exchange for a large sum of cash immediately in hand, experience has shown that in many cases the lump sum is soon dissipated and the workman is right back where he would have been if workmen’s compensation had never existed.
8 Larson’s Worker’s Compensation Law, § 82.71 (1999).
Despite this general rule against lump sum awards, Larson points out that the remedy can work in certain circumstances:
The only solution lies in conscientious administration, with unrelenting insistence that lump-summing be restricted to those exceptional cases in which it can be demonstrated that the purpose of the Act will best be served by a lump sum award.
Id.
[¶ 18.] Would it not be inequitable to deny a person receiving benefits a lump sum settlement before the setoff in SDCL 62-4-7 is triggered? If it does not apply to determining any partial lump sum payment for attorney’s fees, why would it not be an exceptional circumstance or in the best interest of the injured employee to receive a lump sum payment and thereby avoid this setoff. It appears to this member of the Court that the legislature has amended a claims procedure statute that seems to mandate a petition by a permanently injured employee for a lump sum settlement. To do otherwise results in reduced benefits in the future when the offset of SDCL 62-4-7 is applied to his or her monthly benefits. Also, this seems to be in direct opposition to the above general rule.
[¶ 19.] While I concur in result based on the legislature’s amendment of SDCL *59862-7-6 to remove reference to SDCL 62-4-7, this result is contrary to the intent and purpose of the workers’ compensation statutes. This Court has said on numerous occasions that the workers’ compensation statutes are to be liberally construed in favor of the injured employee. The purpose of workers’ compensation is to provide for employees who have lost their ability to earn because of an employment related accident, casualty, or disease. The holding of this case is inconsistent because by not applying the offset to partial lump sum settlements to pay attorney’s fees, the employee ultimately receives less compensation. Therefore, I concur in result.