(dissenting).
This case hurts. A young crippled man, hurt on the job, is denied the right to rehabilitate himself.
I respectfully dissent. The case was thoroughly considered below by the South Dakota Department of Labor and Circuit Court. Two formal decisions, based upon the facts of this case and the statutory and decisional law of South Dakota, were entered.
Check the opinion. You will not find one statement to the effect that:
1) South Dakota Department of Labor’s Findings of Fact dated February 10, 1992, were clearly erroneous;
2) South Dakota Department of Labor’s Conclusions of Law dated February 10, 1992, are mistakes of law;
3) South Dakota Department of Labor’s Order dated February 10,1992, is clearly erroneous or contains mistakes of law.
The majority opinion does not even allude to them. Attached hereto, and by reference made a part hereof, are said Findings of Fact, Conclusions of Law, and Order. In reviewing this case, it is noted that the trial court’s order, dated November 20, 1992, incorporates the decision of the Department of Labor. Additionally, the trial court, as a Conclusion of Law, held that Cozine v. Midwest Coast Transport, Inc., 454 N.W.2d 548 (S.D.1990) and this case are factually different, thus causing opposite results, i.e., distinguishable. I agree.
Jesus was a carpenter; so was Chiolis. Honorable vocation. But Chiolis cannot return to his employment as a carpenter — and both employer and insurance company admit it in their joint brief (at page 8). As working men have it, carpenters are ordinarily paid in excess of the unskilled laborer. Chiolis was employed in manual labor type jobs before taking vocational carpentry training. He tried to elevate himself. And he did. Unfortunately, he fell off a roof. He now has a serious, disabling, and painful injury.
Insurer and Employer want him to return to manual labor. Consider Findings of Fact IX and X. Chiolis was placed on a light-duty work restriction. How can he go back to manual labor and be restricted to lifting only ten pounds? What employer would hire him under such circumstances? Is not law supposed to make sense?
Chiolis will either survive with a college education (or some skill via education) where he uses his brain or he will be on the welfare rolls the rest of his life and he is not yet 30 years of age. The South Dakota School of Mines and Technology is located in Western South Dakota in South Dakota’s second largest city, Rapid City. Students from all over the United States and the world attend that institution with its variety of courses in academic achievement. It maintains a worldwide respect.
Chiolis? He wants to go to that institution. He is attending that institution. Again, he wants to elevate himself! He does not want to be on the welfare rolls. See Finding of Fact II wherein it is expressed: “Once claimant has completed his educational goals, the wage loss factor will disappear. He will be economically restored.” In Beckman v. John Morrell & Co., 462 N.W.2d 505, 508 (S.D.1990), our Supreme Court considered the same type of argument we see now: An injured employee could do certain jobs without rehabilitation. This Court required that the employer demonstrate that these jobs were open on a continuous basis, and second, that these open and continuously available jobs would restore the employee to *163suitable employment. Id. “The fundamental purpose of rehabilitation benefits is to ensure that an injured worker.has an opportunity to develop marketable and transferable work skills that enable him to secure suitable, substantial, and gainful employment.” Id. at 509.
In this case, the hearing examiner determined that to “return to suitable, substantial and gainful employment, Mr. Chiolis must have rehabilitation.” Finding of Fact XV. Lage Development must show this conclusion clearly erroneous. Not established in this ease!
We refused to tolerate the argument in Beckman, which is again cast upon the legal waters in this case. There, employer advanced a theory that there were five other positions in the employer’s business which the injured claimant could handle. We held that these jobs were not continuously open and available because the work was scaled down to accommodate the injured claimant. Beckman, 462 N.W.2d at 508-509. Here, the same approach is used: Send this man into the arduous labor field but tell his employer, “Hey, don’t you let him lift over 10 pounds.” In essence, the expert for Lage Development wants to modify the entire market of labor to escape paying benefits. It will not work; the labor market will not accept such a philosophy.
Graduation is just around the corner! In December, 1994, Chiolis can earn a 4-year degree. Tally ho the fox! Continue the hunt. Towards the degree. Onward with the rehabilitation. Up with education. Down with an insurance company trying to wiggle out of its just responsibility. Chiolis is requesting benefits for 24 months. (In Cozine, benefits were sought for an undergraduate and masters degree; in Barkdull v. Homestake Mining Co., 317 N.W.2d 417 (S.D.1982), benefits were sought for all years of college.) If his spirits are not put down so hard by litigation and appeals, perhaps he can join those individuals who need justice at the Bar so he can have some food, clothing and housing — so he can study without economic privation. Thereby, he can attain an educated mind which will take a direction to economic stability. I note that four years have now elapsed since his injury. Hold on, the morning is coming ... or is it too late now? Like many injured claimants, has Chiolis been entombed in the system? Lage Development’s approach (and its insurer) should not cause a disabled employee to fore-go rehabilitation for years, while there remains a final determination on the available length of rehabilitation benefits.
In my opinion, the Department of Labor’s hearing officer properly found Chiolis entitled to rehabilitation benefits under Cozine, because: (1) all medical testimony agrees Chiolis is unable to return to his usual and customary line of work; (2) the vocational experts believe rehabilitation must be pursued to restore Chiolis to suitable, substantial, and gainful employment; (3) it is undisputed that Chiolis has filed a claim requesting rehabilitation benefits; (4) Claimant’s vocational rehabilitation expert concluded the program Chiolis has chosen is reasonable and no evidence contradicted this; and (5) Chiolis is actively pursuing a program that, as recognized by both rehabilitation experts, mil restore his “marketable and transferable skills.” (Emphasis supplied mine).
This Court should not lose sight of the intent of earlier decisions in this Court. We find in Mills v. Spink Elec. Co-op, 442 N.W.2d 243, 246 (S.D.1989):
It is long-standing public- policy that worker’s compensation statutes be liberally construed in favor of injured employees. S.D. Med. Service v. Minn. Mut. Fire & Cas. Co., 303 N.W.2d 358 (S.D.1981). Worker’s compensation statutes are “remedial, and should be liberally construed to effectuate [their] purpose.” Moody v. L.W. Tyler, Custom Combiners, 297 N.W.2d 179, 180 (S.D.1980).
As I consider the settled law in this state on liberal construction of remedial statutes, my mind travels to the literary work of David Ricardo in Principles of Political Economy V:
The friends of humanity cannot but wish that in all countries the laboring classes should have a taste for comforts and enjoyments, and that they should be stimulated by all legal means of their exertions to *164procure them. There cannot be a better security against a superabundant population.
Therefore, is it not true that the laboring people should be encouraged to want the good things of life and deserve to seek them by legal means, especially when state statutes authorize them to do so?
As a boy in Hand County, my life was drawn to the law by a wonderful eighth grade teacher, Roy Anderson, the YCL (Young Citizen’s League) of South Dakota, and the life of Abraham Lincoln. Lincoln, in his message to Congress on December 3, 1861, expressed:
Labor is prior to, and independent of, capital. Capital is only the fruit of labor and could never have existed if labor had not first existed. Labor is the superior of capital, and deserves much higher consideration.
Certainly, the rehabilitation of the injured worker so he enjoys dignity, is a “higher consideration.”