(dissenting) — I respectfully disagree with the majority's analysis and its conclusion that Malland's and Kuaimoku's disability cancellations should be reversed. The majority's requirement of changed circumstances sets an unreasonably high standard for cancellation and is contrary to the intent of RCW 41.26.
I support the definition of disability the Department has drawn from the statute: claimant is disabled when he is "unable to continue his service ..." RCW 41.26.120. Further, I support the standard articulated by the Department to justify cancellation for nondisability: current ability to perform the ordinary duties of claimant's grade or rank. The majority correctly places the burden on the Department to prove that a claimant can perform his job before cancellation is justified. But the Department met its burden in both instances before us. The Department proved that Malland could hold full-time employment at another job in a similar environment. It also proved that Kuaimoku's back *494condition had improved or was not as serious as originally believed.
There are four points where I diverge from the majority opinion: (1) the application of principles of collateral estoppel (effect of prior determination of disability), (2) the evidence necessary to warrant a finding of nondisability, (3) the weight to be afforded administrative decisions, and (4) the necessary level of performance required for a determination of nondisability (a point the majority did not need to reach).
1. Effect of Prior Determination of Disability
Reliance on principles of collateral estoppel is inappropriate under the terms of the statute which specifically permits reconsideration of disability at periodic intervals. RCW 41.26.130(5); RCW 41.26.140(1). Collateral estoppel is a judicial doctrine intended to prevent relitigation of "issues which have been actually and necessarily contested and determined ..." Peterson v. Department of Ecology, 92 Wn.2d 306, 312, 596 P.2d 285 (1979). Estoppel by judgment is not appropriately invoked in judicial proceedings where there is an ambiguity in the prior judgment. Peterson, at 313; Henderson v. Bardahl Int'l Corp., 72 Wn.2d 109, 117-18, 431 P.2d 961 (1967). Under the statute, an administrative decision that a worker is disabled is not the sort of issue that is "actually and necessarily contested and determined" to a degree to be considered conclusive.
A determination that a claimant is "unable to continue his service ..." under RCW 41.26.120 is not a final judgment.2 Such an administrative determination need not *495even be adversarial. A determination may be based on a number of factors such as definitive medical evidence, speculative medical evidence, and subjective evidence from the claimant. When the evidence is vague or inconclusive, a disability retirement may be granted, awaiting future findings. Surely, such a determination of disability should not be considered a final litigation of the issue, subject to the doctrine of collateral estoppel.3
In fact, to apply the doctrine of collateral estoppel to disability decisions may work to the disadvantage of the claimant. The Department will be less likely to grant a disability pending future developments if a heavy burden of changed circumstances is required to cancel disability benefits. A better approach and one more consistent with statutory intent would be to adopt the principle that a determination of disability creates a presumption of a continuing disability, with the burden on the Department to come forward with evidence to rebut the presumption. This is one approach used by federal courts in addressing termination of social security disability benefits. See, e.g., Kuz-min v. Schweiker, 714 F.2d 1233 (3d Cir. 1983).
Application of the judicial doctrine of collateral estoppel to administrative decisions is also dependent upon policy *496considerations. State v. Dupard, 93 In the present case, invocation of the doctrine is not consistent with the policy and intent of the statute. The clear intent of the statute is to provide economic security when a worker is disabled, and to return him to work when he is able.
The statute strikes a careful balance between protecting the claimant's rights (by assuring a return at the same rank and at the same salary, and providing a full hearing before cancellation) and protecting the fiscal integrity of the retirement system. A disability retirement is not generally permanent,4 being subject to periodic review of the disability. If, after reexamination, the Board determines that the beneficiary "is not so incapacitated ... he shall be restored to duty ..." RCW 41.26.140(2). The statute provides that a beneficiary over age 50 may refuse an examination without loss of benefits. RCW 41.26.140. But up until age 50, the intent of the statute is obvious: to restore disability beneficiaries to active employment if they become capable of performing their duties.
2. Necessary Evidence
Designation as "a presumption" or as "issue preclusion," may seem to be a pedantic argument, but it affects the evi-dentiary burden placed on the Department. The majority requires a showing of a change in circumstances to upset a prior disability determination. Most significantly, the majority would not accept new medical evidence that claimant is now able to perform his duties despite an unchanged condition. Nor would it accept new medical evidence to dispute or modify the initial diagnosis. Majority, at 491. This is an unreasonable exclusion of evidence, and an unwarranted interpretation of statutory intent.
To cancel a disability retirement, there must, of course, be competent evidence that a beneficiary is now capable. It *497would not suffice for the Board or Director to merely review the prior record and revise the earlier conclusion. The statute requires the Director to adopt rules for presenting to disability boards "medical, employability, and other evidence", thus indicating that determination of such capability involves other factors in addition to the required physical examination. RCW 41.26.115(l)(a). Authority to make a determination of capability, however, is given to the Director and the Board. RCW 41.26.140.
Surely, this capability can be measured in part by present actions, including the ability to hold another job with similar duties. Malland, for instance, was employed full time at the time of the hearing as a safety engineer for an insurance company, subject to background noise as part of his job. Moreover, he was a member of the Coast Guard Reserve having passed its annual physical examination. He was nonetheless drawing his disability benefits. As to Kuai-moku, the State Board and the trial judge found an improvement in his back condition. Two doctors testified that a deteriorating back condition such as his would result in objective signs, and they found none.
In addition, both Malland's and Kuaimoku's original disabilities were based in part on subjective evidence of pain or discomfort. Malland was diagnosed as having tinnitus (a ringing in his ears), which results in nervousness and sleeplessness, but is not susceptible to an objective test. There was no evidence that the physical condition had ceased, but the extent of its disabling effect could certainly be reassessed in light of his employment. Kuaimoku complained of persistent back pain, for which there was little objective evidence at the time of his original grant of disability retirement. In the 1976 order on Kuaimoku, the Director noted that "the medical authorities are not in agreement as to the precise nature of the disability."
Pain and discomfort are subjective conditions, which may or may not have objective medical manifestations. See Miranda v. Secretary of HEW, 514 F.2d 996, 1000 (1st Cir. 1975). In Miranda, involving cancellation of a social secu*498rity disability benefit, the court recognized that some conditions may not be as serious as originally believed, and that many "impairments are difficult to diagnose; a proper diagnosis may require reference to the cumulative medical history." Miranda, at 998 n.*. The Miranda court also recognized that cancellation of a disability benefit is justified when medical evidence is ambiguous: "the Secretary is entitled, on the basis of his overall evaluation of the claim including Miranda's credibility, to rule one way or the other." Miranda, at 1000.
3. Deference to Administrative Decisions
As noted above, the statute vests the power to determine nondisability in the Board. RCW 41.26.140. Further, RCW 41.26.140(2) requires us to follow the "clearly erroneous" standard for review set by the administrative procedure act, RCW 34.04. The APA does not permit us to substitute "our judgment for that of the administrative agency in factual matters ..." Franklin Cy. Sheriff's Office v. Sellers, 97 Wn.2d 317, 325, 646 P.2d 113 (1982), cert. denied, 459 U.S. 1106 (1983). To reverse an administrative judgment, we must find a fact determination "clearly erroneous in view of the entire record as submitted and the public policy contained in the act..." RCW 34.04.130(6) (e).
The policy of the statute is to provide economic security to disabled fire fighters and law enforcement officers. But the policy also protects the fiscal integrity of the system by restoring workers to employment when they are no longer disabled. To this end, the statute permits periodic reexaminations and evaluation of new evidence by the Board.
Evidence was produced at both Malland's and Kuaimoku's hearings to support a finding that each was able to perform his duties. A review of the record does not leave me with the "definite and firm conviction that a mistake has been committed." Ancheta v. Daly, 77 Wn.2d 255, 259-60, 461 P.2d 531 (1969). See also Franklin Cy. Sheriff's Office v. Sellers, supra.
*4994. Level of Performance
Because of its conclusion, the majority did not reach the issue of the necessary level of performance which constitutes "average efficiency." The majority does, however, at page 491, refer to "all necessary job duties," (italics mine) without elaborating. Appellant Malland asserts that a return to duty requires an ability to perform all ordinary duties. (This is significant in his case because of medical testimony that he should not be exposed to gunfire.) In response, the Department argues that a return to duty requires the ability to perform a reasonable range of duties — in essence an argument for assignment to light duty, at the same rank or grade.
The language of the statute, WAC, and a prior Washington case support the Department's position. The statute provides for return to work at the same civil service rank, but protects the claimant from assignment at a reduced rank. RCW 41.26.140. The statute distinguishes between "position" and "rank," defining "position” to mean "the employment held at any particular time, which may or may not be the same as civil service rank." RCW 41.26.030(21). Thus the intent of the statute must be taken to require a return to work in the department at the same rank, but not necessarily to the same position.
The WAC refers to ability to perform at "average efficiency." WAC 415-105-060. In addition it provides
That no member shall be entitled to a disability retirement allowance if the appropriate authority advises that there is an available position for which the member is qualified and to which one of such grade or rank is normally assigned and the board determines that the member is capable of discharging, with average efficiency, the duties of the position.
(Italics mine.) WAC 415-105-060(2). An agency's regulations are entitled to great weight in construing the statute which confers its authority. Holland v. Boeing Co., 90 Wn.2d 384, 389, 583 P.2d 621 (1978); Hama Hama Co. v. Shorelines Hearings Bd., 85 Wn.2d 441, 448, 536 P.2d 157 *500(1975).
In an earlier case, we held that a policeman's disability benefit could be canceled on a finding that the claimant could resume some of the positions available in the police department at his former grade. Clark v. Board of Police Pension Fund Comm'rs, 189 Wash. 555, 66 P.2d 307 (1937). Clark was decided under an earlier pension statute, but there the court was also interpreting conditions or circumstances under which disability ceased.
Decisions from other jurisdictions on this issue are mixed.5 6 While they may be useful in clarifying the different interests at stake, it should be emphasized that they are interpreting statutory language which differs from Washington's. The Clark court did cite a New York case with apparent approval.
[T]he court [in People ex rel. Metcalf v. McAdoo, 184 N.Y. 268 (1906)] . . . did not require the retirement of a policeman unable to perform full police duty or every conceivable duty, but only such as were unable to discharge with average efficiency the duties of their respective grades.
Clark, at 561. The court noted Clark's being "reasonably able to perform the ordinary duties of a police officer." Clark, at 562.
In conclusion, the standard articulated by the Department is a correct one. A determination that a claimant is now able to perform a reasonable range of duties with average efficiency justifies a return to work. The burden is on the Department to prove this ability. Proof will involve new evidence, but not necessarily changed circumstances. *501This evidence could include: (1) medical testimony reflecting an absolute improvement in medical condition, or reflecting clarification of the original diagnosis or reflecting adaptation to the disability; or (2) medical testimony indicating present ability to perform without reference to past disability; or (3) actions of the claimant reflecting adaptation; or (4) changes in the Department (either in equipment or job arrangement) which would allow the claimant to perform the duties of his rank or grade. For the above reasons, I would uphold the Department and, therefore, I dissent.
Utter and Dore, JJ., concur with Dimmick, J.
The only issue entitled to the finality of collateral estoppel is claimant's disability status prior to a properly conducted cancellation proceeding. I certainly would not advocate any retroactive reconsideration of his disability, nor reclamation of his prior benefit payments.
The majority's reference at pages 489-90 to claimant's loss of appeal applies only to the past determination of disability. A claimant can appeal any cancellation of disability. RCW 41.26.140(2). Furthermore, upon cancellation and return to service, he immediately comes under the protection of the retirement system. *495RCW 41.26.140(3). He would thus qualify again for disability retirement.
I am mystified by the majority's reference at page 490 to nonapplication of collateral estoppel to the disability award itself. The disability benefit is contingent upon a determination of disability. It ceases upon a determination of non-disability. The two are inevitably intertwined.
The majority's quotation from the Restatement (Second) of Judgments § 27, comment c (1982) is incomplete. The comment refers to ''litigation” and "judgments," not to an impermanent administrative decision. The general rule on issue preclusion stated in section 27 follows:
When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.
A determination of disability can scarcely be considered a "valid and final judgment" when the statute authorizes reopening the issue twice yearly, following a new physical examination.
The regulations permit the retirement board to declare a claimant permanently disabled when "there is no possibility that rehabilitation could restore the member to fitness for duty." WAC 415-105-090.
In interpreting its state statute as precluding a return to light duty, one court expressed concern that requiring a return "would permit the city to reduce an employee in rank, level and dignity and change his class of employment..." Spencer v. Yerace, 155 W. Va. 54, 61, 180 S.E.2d 868 (1971). Another court expressed concern that the effect of reinstatement at a lesser position would be to waive claimant's future right to a fireman's pension. Pueblo Firemen's Pension Bd. v. Hubersberger, 132 Colo. 344, 288 P.2d 352 (1955). In these regards, Washington's statute protects the beneficiary by requiring a return to the same rank at the same salary, and reinstatement in the same pension system.