concurring.
I concur in the majority opinion, but do so only tentatively and with reservations.
The right of a wrongfully dismissed state employee to lost salary is provided for in sec. 36.390.5. That section has no language, ambiguous or otherwise, indicating a legislative intent that the equitable rule of “avoidable consequences” should be applied when calculating the amount the employee’s lost salary due to a wrongful discharge, suspension or demotion. '
Nevertheless, this Court undertook to construe that section by importing the rule of avoidable consequences into the statute. Wolf v. Missouri State Training School for Boys, 517 S.W.2d 138, 144 (Mo. banc 1974). Importing this rule allowed the state to offset a back pay award with the substitute income earned by the discharged employee. “The doctrine of avoidable consequences has a necessary corollary — the person who reasonably attempts to minimize his damages can recover expenses incurred.” 22 Am.Jur.2d Damages, sec. 495. Recognizing this necessary connection, the Court also imported the corollary doctrine and allowed employees to reduce the offset by the reasonable attorneys fees and expenses incurred in seeking relief from the wrongful discharge. Wolf, 517 S.W.2d at 148.
The logic supporting the holding in Wolf was dubious from the outset. Perhaps Judge Bardgett was correct in stating, “There are no deductions provided for in [see. 36.390.5]. If the legislature had intended for there to be deductions for pay earned or which could have been earned, they would have said so.” Wolf, 517 S.W.2d at 146 (Bardgett, J., concurring in part and dissenting in part).
If the majority is correct in its conclusion that the legislature has removed the “necessary corollary” of the equitable rule of avoidable consequences from this Court’s interpretation of sec. 36.390, then justice requires that the Court remove all of the rule from its construction of the statute. Equity in part is not equity at all. See Townsend v. Maplewood Investment & Loan Co., 351 Mo. 738, 173 S.W.2d 911, 913-14 (1943) (“equity delights to do justice, and that not by halves”). In cases where the employee is not allowed to reduce the substitute earnings offset by the amount of necessary expenses, it is unjust that the state be given the benefit of the offset. The unjust impact of the enactment of sec. 536.087.1 on the avoidable consequences rule creates an ample basis for reopening the question of whether Wolf was correctly decided.
The appellant justifiably assumed that Wolf was good law and would not be overruled. That undoubtedly accounts for her failure to address the issue. On remand, I see no reason why the PAB may not consider whether any part of Wolf’s avoidable conse*851quences rule survives. Because the issue was not raised or resolved here, the law of the case does not prohibit the question from being argued on a subsequent appeal. See Gamble v. Hoffman, 732 S.W.2d 890, 895 (Mo. banc 1987).
Having noted the reasons for my reservations, I concur in the remainder of the opinion.