(dissenting).
While I agree with the majority that the criteria set forth in Cozine v. Midwest Coast Transport, Inc., 454 N.W.2d 548 (S.D.1990), control, I disagree with the majority’s application of that authority to these facts.
I further agree that the first three elements laid out in Cozine, supra, are in dispute in this case. I disagree with the majority’s application of the first two elements as they apply to the facts of this case.
As to the first element (that the employee be unable to return to his usual and customary line of employment), I believe, as did the circuit court, that Morrell clearly and convincingly met its burden and established that there were five light-duty jobs of equal pay which were actually available to claimant. (Note that Dr. VanDemark specifically approved claimant’s returning to work.)
Further, I agree with the circuit court that the real cause of claimant's inability to return to work was not his medical condition; rather, it was his participation in a sympathy strike at Morrell and the collective bargaining agreement which prevented his recall until his seniority came up.
Rehabilitation benefits do not repeal the judicially created favored-work doctrine. The two remedies are complimentary and should not be construed to conflict. Christiansen v. Eaton, Yale & Towne, Inc., 89 Mich.App. 440, 280 N.W.2d 463 (1978).
Under the favored-work doctrine, the employer carries its burden of persuasion to show that the tendered job is within the claimant’s residual capacity. Upon such showing, the burden of persuasion then shifts to the claimant to show that he is justified in refusing the offer of modified work. Talley v. Goodwin Brothers Lumber Co., 224 Va. 48, 294 S.E.2d 818 (1982).
*511Here, by virtue of claimant’s membership in the union, which called the strike, claimant did effectively place himself in the position of refusing suitable employment that had been offered him. Loss of union status and seniority is no excuse for not taking lighter work suitable to claimant’s condition. Larson, Workmen’s Compensation Law, § 57.66 at 301 (1989). (The possible loss of claimant’s union rights does not affect the determination of whether the claimant should be required to accept employer’s offer of light (favored) work. M. & M. Transportation Co. v. Della Posta, 74 R.I. 514, 62 A.2d 654, 657 (1948)); see also Hamlin v. Michigan Seat Co., 112 Mich.App. 84, 314 N.W.2d 804 (1981) (benefits denied where claimant had been offered favored work with the employer’s subsidiary company but refused to accept the job because the subsidiary was not a union plant). Therefore, I agree with the circuit court that claimant has failed to sustain his burden of proving that he was unable to return to his usual and customary line of employment and, as a result, he is not entitled to rehabilitation compensation benefits.
The second requirement is that the rehabilitation be necessary to restore the employee to suitable, substantial and gainful employment. As to this requirement, I again disagree with the majority’s analysis.
In Cozine, supra, we held that the second requirement of the statute required more than the mere restoration of employment. The new employment must be suitable when compared to the employee’s former job. Id. at 554. Cozine goes on to note that once an employee has made a prima facie showing that he/she is unable to find employment, the employer then has the burden of establishing that the employee would have been capable of finding such employment without rehabilitation. Here the facts show that the majority opinion is flawed.
Although claimant argues that only minimum wage jobs were available to him, Mor-rell has established that there were five jobs available for claimant at his previous salary. Claimant chose to go on strike at Morrell from May 1, until November 4, 1987. Morrell should not be punished because claimant chose to strike.
In addition to the facts reiterated earlier, it must be observed that the printing technology course was not a necessary program of rehabilitation because claimant was already, except for the first month of the training course, working in the same field for Metz earning $5.00 an hour. Moreover, his earnings were only increased by fifty cents an hour following his completion of the program. His new job at Modern Press was paying $6.00 an hour. This rehabilitation program was not necessary, because he was already well employed in the field.
It should be noted that an injured worker cannot insist upon rehabilitation benefits if other suitable employment opportunities exist which do not require retraining. Id. at 554. Here, claimant was already working in suitable, substantial, and gainful employment before he commenced his retraining program. The majority suggests that it is likely that Metz hired claimant because of his enrollment in the course, further suggesting that it is a question of fact which would force this court to speculate into the mind of the person who hired claimant on behalf of Metz. That simply is not the issue. The issue is whether or not claimant is capable of getting suitable, substantial and gainful employment without the rehabilitation program. Here, as stated earlier, because he was already employed in the printing field, rehabilitation benefits were unnecessary. (I hasten to note, as did the trial court, that claimant presented no expert testimony (and, in fact, no testimony other than his own) that rehabilitation was reasonably necessary to restore him to the suitable, substantial and gainful employment in the printing technology field. See Barkdull v. Homestake Mining Company, 411 N.W.2d 408 (S.D.1987) (Barkdull II).)
“The kind of rehabilitation program contemplated by SDCL 62-4-5.1 is that which enables the disabled employee to find suit*512able and gainful employment, not to elevate his station in life.” Id. at 410.
Therefore, I respectfully dissent.
I am authorized to state that Justice MORGAN joins in this dissent.