(dissenting).
We have, before us, another case to review in the highest court of this state involving a working man’s benefits. This case is a studied and belabored effort on the part of employer and insurer to beat and cheat a working man out of his permanent total disability benefits under the South Dakota Worker’s Compensation Law. Kennedy performed very hard, heavy work. He manually carried heavy sacks of flour and feed sacks, stacking them on trucks and placing them onto railroad cars. The feed was 100# s of “sweet chop” which he had to stack five layers high. We, on this Court, seem to have again overlooked precedent in this Court which I again remind the members of this Court as follows: “It is long-standing public policy that worker’s compensation statutes be liberally construed in favor of injured employees.” Wilcox v. City of Winner, 446 N.W.2d 772 (S.D.1989) (Justice Morgan, author); S.D. Med. Service v. Minn. Mut. Fire & Cas. Co., 303 N.W.2d 358 (S.D.1981) (Justice Morgan, author). “Worker’s compensation statutes are ‘remedial and should be liberally construed to effectuate its purpose.’ ” Moody v. L.W. Tyler, Custom Combiners, 297 N.W.2d 179, 180 (S.D.1980) (Chief Justice Wollman, author).
These are relatively recent cases but they are the offspring of decisions reaching back into past decades of the same public policy. I am not suggesting that this Court is enshrouded in a spirit of indifference; rather, I am suggesting that this *798Court — here—has abandoned the social need upon which the Worker’s Compensation Law was founded. In my opinion, worker’s compensation benefits, once causation has been established, is to be construed liberally to uplift individual dignity — to thus enable injured working people, in South Dakota, to buy groceries, pay rent, make payments on their house, pay taxes, purchase clothing and medicine, and provide for economic stability in raising their family. The Worker’s Compensation Law is a narrow road — it is a restricted avenue for redress; the gate is not wide open but closed for damages; therefore, the injured employees should have this law “liberally construed” to preserve their restricted, statutory rights and to promote justice.
The Findings of Fact are clearly erroneous under the rule in In re Estate of Hobelsberger, 85 S.D. 282, 181 N.W.2d 455 (1970) and the Conclusions of Law are mistakes of law under the Permann decision. Permann v. Dept. of Labor, Unemp. Ins. D., 411 N.W.2d 113 (S.D.1987). Accordingly, Kennedy is entitled to win this appeal and I hereby uphold his cause. As far as I am concerned, reviewing the evidence as a whole, I perceive this scenario as a classic case for permanent total disability under the Odd Lot Doctrine set out in Barkdull. (Sporadic employment resulting in an insubstantial income considering physical condition, age, training, experience, and type of work available in his community). Wendel v. Domestic Seed & Supply, 446 N.W.2d 265, 268, 270 (S.D.1989). Kennedy is a man with a physical condition and chronic pain that will not allow him to return to his usual and customary line of employment. At least two physicians advised him to not return to work.1 At the Boulder Pain Clinic, a number of diagnoses were made including chronic mechanical back and hip pain secondary to bilateral sacroiliac joint disfunction and left pirifor-mis spasm together with disc disease at the L4-L5 level, which results in radiating pain and femoral neuropathy together with reactive depression. The evidence establishes this. I believe he has made a prima facie case that he is in the “odd lot” category of injured employees. Consequently, the burden now shifts to Hubbard Milling to show that some kind of work is regularly and continuously available to Kennedy. 2 Larson Workman’s Compensation Law, § 57.61(c); Rank v. Undblom, 459 N.W.2d 247, 249 (S.D.1990).
Attempting to meet this burden, Hubbard Milling cleverly, if not insidiously, specially created a Humpty-Dumpty2 job in an effort to place Kennedy back into the work force and to cheat him out of his benefits. It was a “sweeping position” so that he could sweep and clean, yet he had to put in 8 hours a day on concrete surfaces. It was a menial job for a grown, proud man, a man who had worked hard all of his life and who had an eighth grade education, but eventually received his GED. He made his living with his back and his arms and his legs. By taking this job, Hubbard wanted him to lie down several times during the day (and rest his back) which was another industrial effort to try to put Humpty-Dumpty back together again. This is “sporadic” employment resulting in “insubstantial income” under Barkdull and its progeny. It is nothing more than an industrial “con-job” sold by Hubbard Milling Company to the Department of Labor, the circuit court and the Supreme Court. But this Justice is not buying it. Hubbard Milling is not going to continue with Kennedy or any other member of the public, on a day by day basis, with this type of “special treatment” labor.
Kennedy, a blue collar worker, by limited education and calling, demonstrated by trying to work, again and again, that he unsuccessfully made reasonable efforts to work and to be a productive laborer. He met his burden. 2 Larson, Law of Workmen’s Compensation § 57.61(d).
*799Employment available only through the special treatment and consideration of an employer is not probative evidence of a claimant’s true employability. (Industrial Humpty-Dumpty). In other words, it does not establish Kennedy’s wage-earning capacity. Lynch v. Briggs Mfg. Co., 329 Mich. 168, 45 N.W.2d 20 (1951). The “favored work doctrine” was more recently discussed in Bower v. Whitehall Leather Co., 412 Mich. 172, 312 N.W.2d 640 (1980). The Michigan Supreme Court stated:
The favored-work doctrine is a purely judicial creation. Favored, or light, work can be loosely defined as less strenuous post-injury work. Wages from favored work may be used as a setoff against an employer’s compensation liability [citations omitted] but favored-work wages do not establish an earning capacity, and when such wages cease, they neither suspend nor bar compensation.
In conclusion, this laboring man is not physically capable of performing work activities in the competitive job market. Dr. Farber, at Abbot Northwestern Hospital, Sister Kenny Institute, Minneapolis, Minnesota, examined and treated Kennedy several times. In June, 1983, Dr. Farber said Kennedy’s condition was worsening noting increased back pain. Kennedy has not worked since 1985! It is now 1991. He is simply unable to work. Kennedy sought rehabilitation through the South Dakota Department of Vocational Rehabilitation. It was determined there were no jobs for Kennedy. Ron Ochs of said department testified that Kennedy could do (only) part-time therapeutic woodworking in his garage and Kennedy could not sustain activity in full-time, regular employment. In fact, when Kennedy returned to work and trying his damndest to be a steady working man, he repeatedly reinjured his back and he now appears to be legally punished for returning to work and by pursuing vocational options in good faith, all of which appears to me to be manifest from the record. Each time he tried to work, his back went down on him, even when he was given light-duty positions by this same industrial company. Furthermore, Lawler is inapposite authority for the reason that it centers on the causation issue. Here, causation is not at issue.
Under SDCL § 62-4-6(23) and SDCL 62-4-7, this blue collar worker, who honestly tried several times to return to work, and reinjured his back each time, is entitled to permanent total disability benefits.3
I would therefore reverse.
CAVEAT
A fishing pole, a bowling ball, a hunting knife, and chores around a house are not akin to 100 lb. sacks and/or sweeping a floor — being on concrete eight hours a day. Kennedy bowled at the suggestion of a rehabilitation counsellor. He hunts from his pickup. Kennedy cannot hear well. He wears hearing aids and cannot discern conversation where there is noise in the background. He has a difficult time in hearing phone conversations. Poor guy! Read Luke: 6:38.
. Zinter, Circuit Judge, relied on the subjective testimony of Dr. Stephens that he, Kennedy, will never go to work as he draws Social Security. Finding Fact 13.
. Harkening to the old nursery rhyme: "All the King’s horses and all the King's men, could not put Humpty-Dumpty back together again.”
. Kennedy was placed, under a pencil-pushing theory of conservative treatment, in “light duty positions;” but, invariably, the record shows he would be forced to do hard labor again. Exam-pie: he was assigned to clean a betonite "pit;” he had to stoop, bend, kneel, crawl and lift— with a scoop and bucket; he reinjured his back again!