(dissenting) — I dissent. The majority reverses the trial court and reinstates the Department's original awards computed on the basis of the monthly disability pensions due the claimants after reduction for prior lump sum payments for permanent partial disability. The trial court, like the majority, found the statute to be unambiguous but reached a different conclusion than the majority. The trial court and this court are the beneficiaries of an extensive memorandum decision prepared by Judge Norman B. Stough of the Board of Industrial Insurance Appeals. I believe Judge Stough reached the correct conclusion and find his memorandum opinion convincing. He stated:
The enactment of RCW 51.32.075 and 51.32.072 (both initially enacted in 1975) was to provide a cushion against the eroding of the value of pension payments to *922injured workers in inflationary times. RCW 51.32.072 provides that all pensioners whose right to compensation was established prior to July 1, 1971 should receive an amount equal to one-half of the state average wage each month, without regard to the amount of original entitlement, or pension reserve. This statutorily fixed amount increases automatically as the state average wage increases. RCW 51.32.075 provides cost of living increases for those whose right to compensation was established on or after July 1, 1971 by use of the formula discussed above. As applied by the Department this formula does differentiate between those who have received a prior permanent partial disability award and those who have not.
This interpretation by the Department clearly establishes four classes of injured workers who are recipients of pension benefits. The first class is those who have received a permanent partial disability followed by a pension and whose rights were established prior to July 1, 1971. The second consists of those pensioners who had not had a prior permanent partial disability award deducted from their pension reserve, and whose right to compensation was established prior to July 1, 1971. The third class consists of those injured workers whose right to compensation was established on or after July 1, 1971 and who have not had a prior permanent partial disability award deducted from their pension reserve. The last class, with which we are here concerned, is made up of those injured workers whose right to compensation was established on or after July 1, 1971 and from whose pension reserve a prior permanent partial disability award has been deducted. Each of the first three groups receives the full benefit of cost of living increases while the last group receives only a proportional share of such increases.
The Department's method of applying the cost of living formula under RCW 51.32.075 to the monthly pension payments can only be justified by interpreting the phrase "... The amount of compensation to which they are entitled ..." to be their monthly pension payment as established after reducing the pension reserve by the amount of prior permanent partial disability award. It is this interpretation that is at issue in this appeal.
*923The intent of the proviso in RCW 51.32.080 is to prevent double recovery by the injured worker by treating the permanent partial disability award as an advance on pension payments. Trayle [v. Department of Labor & Indus., 70 Wn.2d 141, 422 P.2d 520 (1967)]. The Department is thus entitled to recover the permanent partial disability (or advance) from future pension payments. The reduction of pension payments for lump sum payments is set out in RCW 51.32.120 and 51.32.130, and has the same effect as the proviso in RCW 51.32.080. The only effective difference is that one instance involves lump sums paid to the pensioner prior to the award of his pension, while the other is concerned with lump sum payments made after the pension reserve has been established. This scheme is reiterated in the last paragraph of RCW 51.32.072 which provides: "In cases where money has been or shall be advanced to any such person from the pension reserve, the additional amount to be paid under this section shall be reduced by the amount of monthly pension which was or is predicated upon such advanced portion of the pension reserve."
As noted above, the Department's method of computing the pension reserve is to first determine the amount of compensation to which the injured worker is entitled, then multiplying this amount by a statistical figure obtained from actuarial tables. This pension reserve amount is then reduced by any lump sum payment made to the injured worker, and the amount of compensation to which the worker is entitled is then reduced by an amount sufficient to allow the Department to recoup the prior lump sum payment. It cannot seriously be argued that the legislature intended to reduce the cost of living increases only for those whose right to compensation was established after July 1, 1971 and who have had a prior award deducted from their pension reserve. RCW 51.32-.072 does not discriminate between those who have and those who have not received a lump sum payment, and whose right to compensation was established before July 1, 1971. The inescapable conclusion is that the legislature intended the phrase "The amount of compensation to which they are entitled" in RCW 51.32.075 to be that amount first established by the Department pursuant to RCW 51.32.060, before reducing the pension reserve fund by any previous or subsequent lump sum payment to the *924injured worker. ... If the amount deducted from the amount of compensation to which the injured worker is entitled remains constant over the life of the annuity the Department will have recovered the lump sum payment, and the injured worker will not have received double recovery. This amount will remain constant only if the phrase, "The amount of compensation to which they are entitled" in RCW 51.32.075 is defined as the amount of compensation to which the claimant was entitled originally, established as the basis for computing the pension reserve fund, as set forth in RCW 51.32.060 paragraphs one through twelve and paragraph sixteen. The present method of computing cost of living increases on the amount of monthly payments to the pensioner works not only to prevent the pensioner from a double recovery of the prior lump sum payment, but effectively works to prevent the injured worker from receiving the full cost of living increase to which he is entitled.
It should be noted that the method used by the Department in computing cost of living increases will eventually produce an anomaly that could not have been intended by the legislature in enacting RCW 51.32.072 and 51.32.075. The eventual proportional reduction of increases for a pensioner injured on July 1, 1971 who has a prior permanent partial disability reduction may well reduce his monthly benefit below the amount received by a pensioner injured on June 30, 1971 and who received the same permanent partial disability award.
Proposed Decision and Order, at 10-14.
For these reasons I believe the result stated by the majority creates a result inconsistent with the intent of the Legislature. I would affirm the Superior Courts.
Pearson, C.J., and Brachtenbach and Andersen, JJ., concur with Utter, J.