(dissenting).
I dissent. I would affirm the Judgment of Circuit Court Judge Zinter which remanded the case to the “South Dakota Department of Labor, Division of Labor and Management, for further proceedings.”
Contrary to the conference opinion of Judge Johns, the case is controlled by Conclusion of Law II, which provides:
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.
This Conclusion is supported in this case by Findings of Fact VIII, IX, X, XI, and XII.
These Findings of Fact are not clearly erroneous and this Conclusion of Law is correct. Therefore, it is not even necessary to discuss the retroactivity of Whitney v. AG-SCO Dakota.
In this case, the Department of Labor Form 111 was not a “final award” for benefits other than permanent partial disability and Larsen is not precluded from seeking permanent total disability benefits. Therefore, we should affirm.