dissenting: The ignominious decision of the court in Tompkins v. Rinner Construction Co., 196 Kan. 244, 409 P. 2d 1001, has ultimately led to the absurd result illustrated in Casebeer v. Alliance Mutual Casualty Co., 203 Kan. 425, 454 P. 2d 511, and extended by this court in its opinion herein by adhering to Casebeer. In my opinion the court has engrafted a social philosophy of its own on the workmen’s compensation act which is entirely foreign to the purpose of the act. The purpose of the workmen’s compensation act is to burden industry with the economic loss to a workman, or his dependents, resulting from accidental injury sustained by the workman arising out of and in the course of his employment. (Hilyard v. Lohmann-Johnson Drilling Co., 168 Kan. 177, 180, 211 P. 2d 89; Bender v. Salina Roofing Co., 179 Kan. 415, 418, 295 P. 2d 662; and Thuillez v. Yellow Transit Freight Lines, 187 Kan. 618, 622, 358 P. 2d 676.)
The dilemma created by Tompkins is that if the respondent pays the workmen’s compensation awarded by the director it cannot be recovered should the decision awarding compensation later be reversed or should the compensation awarded later be reduced on appeal the overpayment cannot be recovered. (But see Ratzlaff v. Friedeman Service Store, 200 Kan. 430, 436 P. 2d 389, regarding a case under the modification statute, K. S. A. 44-528.) If the respondent fads to pay the director’s award in accordance with the provisions of K. S. A. 44-556 on appeal, he is confronted with a demand pursuant to K. S. A. 44-512a and upon failure to pay compensation in accordance with its provisions to a lump sum judgment in an independent 512a action.
The effect is to rob the respondent of all or a large portion of the benefits of an appeal which the workmen’s compensation act clearly authorizes the respondent to take. (K. S. A. 44-556.)
Two members of the court anxiously await legislative action to correct the Tompkins mistake. (See the concurring opinion of Mr. Justice Fontron in Casebeer v. Allliance Mutual Casualty Co., supra.)
*683Ry holding in Tompkins, where the workmans injury was held not to have arisen out of and in the course of his employment, that provision had to be found in the workmen s compensation act to' recover compensation already paid to the claimant, wherein the court wholly ignored the first section of the workmens compensation act (See my dissenting opinion in Tompkins), the court is being confronted with one dilemma after another.
On the facts in this case the claimant was injured on November 15, 1962, but it was not until July 12, 1966, that a hearing was held before the examiner. Thereafter this case remained in the office of the workmen’s compensation director until the 28th day of February, 1968. Inasmuch as the claimant was the movant, all this delay is attributable to the claimant and his attorney. Another fact to be noted is that the claimant did not file his claim for workmen’s compensation until after his retirement from the state highway commission. On these facts it is apparent the respondent was lulled te sleep.
The award entered for the claimant by the workmen’s compensation director was based upon 70% permanent partial disability, and by reason of his wages resulted in maximum weekly payments for 415 compensable weeks. On appeal to the district court it found the claimant sustained 10% permanent partial disability and reduced’ the award accordingly.
It was on the 15th day of March, 1968, that this respondent perfected its appeal to the district court; on the 25th day of June, 1968, the claimant made his 512a demand, and on the 15th day of July, 1968, payment by the respondent for all compensation due the claimant under the act was in default. Thereafter on the 7th day of August, 1968, the claimant filed his 512a action.
One day prior to commencing the 512a action, on the 6th day of August, 1968, the district court heard the merits of the respondent’s appeal from the director’s award, and thereafter on the 23rd day of August, 1968, made its findings of fact and conclusions of law, and entered judgment reducing the compensation award. The claimant perfected his appeal from the judgment of the district court to the Supreme Court on the 16th day of September, 1968, long prior to entry of judgment in the 512a action.
On the same day the district court entered its judgment awarding claimant compensation based upon 10% disability, the respondent filed its answer in the 512a action, and it was not until the 5th day *684of September, 1968, that the claimant filed his motion for summary judgment against the respondent in the 512a action. On the 24th day of September, 1968, the district court heard the motion for summary judgment in the 512a action and entered judgment for the claimant for the total sum due based upon 10% disability, thereby giving the respondent the benefit of its appeal, but continuing to recognize the validity of the 512a action.
In Casebeer v. Alliance Mutual Casualty Co., supra, the dissenting opinion of Mr. Justice Fromme, in which I joined, is incorporated herein. It sets forth the basic reasons for my dissent herein. In Casebeer, however, the claimant acquiesced in the judgment of the Supreme Court by accepting payment of all compensation due and payable in accordance with the terms of that judgment, in the opinion of the dissenters. In this respect the case here presented differs.
It is clear under the workmen’s compensation act a claimant is not entitled to recover compensation twice for the same injury. If he recovers judgment in a 512a action, he cannot pursue an appeal from the director’s award and recover again. On the other hand, if a claimant pursues his appeal from the director’s award and accepts the benefits of such appeal, he should not be entitled then to press his 512a action. (See dissenting opinion in Casebeer v. Alliance Mutual Casualty Co., supra.) At some point, therefore, the claimant should be required to make an election where rights have accrued to the claimant under K. S. A. 44-512a.
Here the district court heard the appeal from the director’s award before the 512a action was filed. The district court entered judgment reducing the award based upon a 10% disability the same day the respondent answered in the 512a action.
Assuming the Tompkins case to be the law, as I must, a situation exists in which the judgment of the district court reducing the director’s award had been entered prior to the judgment in the 512a action.
The issue in this case concerns the point at which the claimant is required to elect which remedy he will pursue. The question is not free from difficulty. For example, on the facts here the district court might have increased the award of the director by adding the $2,000 future medical expenses, by which amount the director reduced the examiner’s award. Or assume, for example, the facts herein had been reversed — that the director had entered an award *685based upon 10% disability while the district court on appeal therefrom had increased the award based upon 70% disability.
If the decision of the court herein is correct — that the “compensation judgment formed the basis of the plaintiff’s action and was consumed by or implanted into” (Casebeer v. Alliance Mutual Casualty Co., supra, p. 435) the 512a action — the claimant would be bound by the judgment in the 512a action based upon 10% disability. When a case of this nature reaches this court, the social philosophy of the court which has been engrafted upon the workmen’s compensation act will meet the acid test.
In fact, under the court’s decision employers are given the power to entrap injured workmen and bind them to a smaller award entered by the director, simply by refusing to pay compensation, thereby forcing the claimant to pursue his 512a action, assuming the court stays hitched.
In my opinion a workman under the workmen’s compensation act should not be permitted to play the game of “Heads, I win; tails, you lose.” At some point he should be required to make a binding election as to which remedy he seeks to pursue, preferably in writing. Here, however, the claimant made no oral or written election in either the 512a action or in the workmen’s compensation proceeding. Of necessity, in this case the time at which the claimant bound himself to one or the other of his remedies must be determined by the actions he has taken.
In my opinion when the claimant here appealed the decision of the district court, reducing his award based upon a 10% disability, to the Supreme Court on the 16th day of September, 1968, prior to reducing his 512a action to judgment on the 24th day of September, 1968, he thereby elected to proceed in the workmen’s compensation action, and abandoned his right to pursue the 512a action to judgment. In other words, he took action inconsistent with his pursuit of the 512a action, and his appeal in the workmen’s compensation case to the Supreme Court had the effect of binding him to such election. By pursuing the appeal in the compensation case the claimant had the possibility, at least, of increasing his overall recovery to an award based on 70% disability plus the addition of $2,000 by which the director reduced the examiner’s award in making allowance for future medical expenses.
It is to be noted the judgment entered in the 512a action by the district court was based upon a 10% disability of the claimant.
*686Here no reason exists why this court cannot determine the validity of the appeal from the district court in the workmens compensation case based upon 10% disability. The correct amount of compensation determined by this court on such appeal is final.
It is respectfully submitted the judgment of the lower court should be reversed with directions to set aside the judgment entered in the 512a action.
Fromme, J., joins in the foregoing dissent.