dissents:
I dissent.
Methinks the majority doth protest too much in dis*443avowing that it is engaging in judicial legislation. That, in my opinion, is exactly what has been done by my brethren on the court.
The majority opinion has inordinately construed the words “periodic disability benefits” — words of not so broad a connotation — and has literally stretched them to such a degree as to blanket in a class of retired persons who I believe should not be included. There is no sound reason to do so, and the result does not comport with the long standing rule that the Workmen’s Compensation Act should be liberally construed. California has stated it another way, which, I believe, is apropos here:
“* * * where provisions are susceptible of an interpretation either beneficial or detrimental to an injured employee, they must be construed favorably to the employee, [citations.]” Colonial Ins. Co. v. Industrial Accident Commission, 27 Cal. 2d 437, 164 P.2d 490.
It is my judgment that the General Assembly intended no “reaching out”; and that if it had intended to reduce workmen’s compensation benefits to injured state employees (who by reason of such injuries have been forced to retire) it would have been perfectly simple for it to expressly provide therefor in unmistakable terms. Futhermore, if the interpretation given this section of the act, C.R.S. 1963, 81-12-1 (5) (a) and (b), is as broad as the majority now seems to think it is, there was no reason to enact a specific paragraph relating to the Federal Social Security Act. (C.R.S. 1963, 81-12-1[4]).
The state employees affected in this case and the other two cases announced this day are not, I contend, recipients of “periodic disability benefits” as used in the Workmen’s Compensation Act. They have been retired from service and are receiving retirement benefits — accelerated because they are no longer able to work for the state — the very same benefits to which they would be entitled upon attaining the various ages prescribed in the act or upon completing the prescribed *444period of employment; the very same kind of retirement annuity being paid to fellow members of the Retirement Association by reason of age, illness or disability by injury not in the course of state employment. C.R.S. 1963, 111-1-15. The Public Employees Retirement Act aptly describes the payments by the use of such words as “superannuation” “disability annuity” and “retirement for disability.” Also, C. R. S. 1963, 111-1-18, provides that “All annuities granted under the provisions of this article shall be paid in equal monthly installments and shall be in addition to any benefits accruing to a state employee under the workmen’s compensation act.” (Emphasis supplied.) I point out here that although Myers is one of the classification providing for the lowest pay in the state schedule and under the majority opinion will have his workmen’s compensation benefits reduced by $80, there are other state employees who by reason of the retirement scale would have their workmen’s compensation benefits reduced to zero so therefore the retirement would not be “in addition to” compensation benefits, but would be, from a practical standpoint, the sole benefit accruing to the insured employee.
That such retirement benefits to employees (even though retired for such disability as would also entitle them to workmen’s compensation) is not synonymous with “periodic disability benefits” may be demonstrated by the following:
To receive the state benefits, one must retire from the state payroll. This is not characteristic of nor a prerequisite for the receipt of periodic disability benefits paid (usually under group accident policies or company or union health and welfare plans) to employees in private industry. Retirement benefits to which a state employee becomes entitled are geared to the salary and will be greater or lesser, depending upon the position of the person in the state classified service. On the other hand, disability benefits are usually stated sums, payable weekly, for a limited number of weeks (although *445some may be payable for life) and one does not have to retire from employment in order to be eligible for such payments. The amount of such disability benefits usually provide for a larger fixed sum during the period of hospital confinement and another fixed sum for confinement to the home.
Another factor enters into the state retirement picture. When a member of the association is retired —■ whether for disability or age makes no difference — the payments he receives are dependent upon which one of the five options he has selected under C.R.S. 1963, 111-1-12. For example, he receives a reduced benefit if he has elected to have it paid to himself and to a designated beneficiary having an insurable interest in his life for the full life of the survivor of either of them. This amount is calculated actuarially on the life expectency of two recipients. Disability benefits under sick and accident or health plans are not payable to persons other than the one disabled or for the duration of that second person’s life if surviving the disability recipient; disability benefits are not payable to designated beneficiaries but only to the one disabled and cease after one day or one week, if the disabled person dies.
Another of the options in the state retirement plan provides that the retired state employee may receive one sum if he elects that upon his death no refund will be payable to a designated beneficiary or to his estate of any difference between what has been paid out to him and what is on credit in his account in the retirement fund. On the other hand, he may receive a different and reduced retirement benefit if he elects the option which will pay to a beneficiary or to his estate the difference between what has been paid out in annuity payments and what remains in the retirement fund credited by reason of his contributions thereto. It is characteristic of disability benefits that there are no options and there is no fund payable over to any beneficiary or to the insured’s estate, regardless of the *446amount of premiums paid in excess of the benefits received.
It appears fundamentally important to me that when the retirement benefit varies so widely according to elective options which have no connections with the disability of the insured employee, it renders impossible the use of the formula prescribed in section 81. Under that formula to arrive at. the appropriate reductions in workmen’s compensation payments, it is necessary for the commission to calculate the amount of disability benefits being paid (if it is monthly it is to be converted to a weekly basis) reduce such amount by half (the ratio of the payment by the state employer) and then deduct that sum from the weekly workmen’s compensation award. Therefore, in the case of the state retired employee, since the amount he is receiving is not for disability but is on the basis of an annuity calculated under the option selected, it is unrealistic to take that sum and apply the formula in section 81 of the State Compensation Act. No such difficulty is presented in the case of benefits payable under private insurance plans where it is clear that the sum is for disability and is not co-mingled with any actuarially calculated annuity. Under sick and accident plans, since the benefits are fixed and apply to all alike, the formula is uniformly applicable.
The Industrial Commission determined in this case that the deduction from compensation was not proper. I would agree with its interpretation and affirm its award.
Mr. Justice Pringle joins in this dissent.