(dissenting).
Having reviewed the record in this case, we ' should note several of Judge Zinter’s Findings of Fact and Conclusions of Law including those referred to in Justice Sabers’ dissent:
FINDINGS OF FACT
IV.
[After Larsen received the 20% permanent partial disability rating from his physician, the District’s insurance company] wrote to the Appellant advising him that said rating would entitle him to $14,054.98 in permanent partial disability benefits and enclosed a Department of Labor Form 111, instructing the Appellant to sign the Form 111 so that the Form could be filed with the Department of Labor.
V.
The enclosed Form 111 was a 1980 version of the Department of Labor Form 111 and reflected that, pursuant to SDCL 62-4-6(24), the Appellant would receive $14,-*710054.98 in permanent partial disability benefits, and that Form 111 was approved by the Department of Labor on March 29, 1989.
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VIII.
The Department of Labor Form 111 was created and implemented by the South Dakota Department of Labor to document the payment of permanent partial disability benefits.
IX.
The Department of Labor required that the Form 111 be completed and filed with the South Dakota Department of Labor when paying permanent partial disability benefits.
X.
It was the Department of Labor’s longstanding policy and practice that, by signing the Form 111, injured employees were not waiving or releasing their right to pursue Worker’s Compensation benefits other than permanent partial disability compensation.
XI.
That policy and practice was publicized by the South Dakota Department of Labor to employees, employers, Worker’s Compensation Insurers, and attorneys, and it was reiterated and emphasized that, with the exception of permanent partial disability benefits, the Form 111 was not a final award subject to the change of condition requirement at SDCL 62-7-33. The South Dakota Department of Labor advised injured employees that they should sign the Form 111 in order to receive permanent partial disability benefits and, by signing the Form 111, they were not waiving or releasing their rights to pursue Worker’s Compensation benefits other than permanent partial disability compensation.
XII.
The Appellant herein was aware of and familiar with the Department of Labor’s policy and practice as he was advised of the policy and practice by the South Department of Labor when he received per- . manent partial disability benefits following one of his previous back injuries.
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CONCLUSIONS OF LAW
II.
That the Form 111 herein was intended by the Appellant, Appellees and the South Dakota Department of Labor to be a partial or interim agreement for the payment of permanent partial disability benefits and was not intended by the parties to be a final award.
Judge Zinter’s findings are supported by evidence found in the record. It appears to be undisputed that none of the parties to the Form 111 signed by Larsen intended it to be a “final” agreement, nor was it shown that any party believed that Larsen was waiving his rights to future benefits. In fact, after the Whitney decision, the Department of Labor changed the language of its Form 111 to specifically state that signing the form did not constitute a final release, that the purpose of the form was merely for payment of permanent partial disability benefits.
Judge Zinter’s Conclusions of Law include an analysis of whether Whitney v. AGSCO Dakota, 453 N.W.2d 847 (S.D.1990) should be applied retroactively or prospectively. He concluded that the Department had not given consideration to all three factors enumerated in Fisher v. Sears, Roebuck & Co., 214 N.W.2d 85 (S.D.1974), and that the Whitney decision should only be given prospective application. I agree with Justice Sabers’ opinion, however, that under the facts of the present case, the issue of retroactive or prospective application of Whitney need not be reached.
Judge Zinter’s decision should be affirmed.