(dissenting).
I dissent. In my opinion, I.C. § 72-1429P denies the appellant his Fourteenth Amendment right to equal protection of the laws.
Lump sum payments of workmen’s compensation benefits are, and were at the time of the appellant’s injury, authorized under the Idaho Code. I.C. § 72-404 (effective January 1, 1972); I.C. § 72-321 (repealed effective January 1, 1972).
The major purpose of the Workmen’s Compensation Law may in fact be, as the majority says, “to provide compensation to make good the loss or impairment of earning power which otherwise might fall on the worker or his family.” But the obvious purpose of I.C. § 72-1429P is to prevent the payment of cumulative benefits to retired employees who have been awarded workmen’s compensation benefits. In attempting to achieve this object, the legislature made certain classifications of persons. Thus, while those who receive a lump sum payment under the Workmen’s Compensation Law may subsequently receive full retirement benefits, those who receive weekly workmen’s compensation benefits have their retirement benefits reduced by the amount of workmen’s compensation benefits they are entitled to receive.
In failing to require an offset against retirement benefits for lump sum payments previously received, while requiring such an offset for weekly benefits concurrently received, I.C. § 72-1429P violates the constitutional mandate that “all persons similarly circumstanced shall be treated alike.” Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971). Under this statute, persons who sustain the same injury at the same time, who contribute the same amount to their retirement fund, and who retire at the same time are treated differently depending upon whether they were given a lump sum workmen’s compensation payment or weekly benefits payable after retirement. This discrimination against weekly benefit recipients is arbitrary and unreasonable, and as such violates the equal protection clause of the *634Fourteenth Amendment to the United States Constitution. As the Court in Fox v. Michigan Employment Security Commission, 379 Mich. 579, 153 N.W.2d 644, 648-649 (1967), said in discussing an analogous classification:
“We direct our attention to the above classifications * * * and consider their rationality, reasonableness and relevance to the purposes of the employment security act attempted to be accomplished by this legislation, to determine whether the distinctions are based on substantial differences and justifiable foundations which operate uniformly on all of the persons naturally in the various classes.
“We ask ourselves this question: Is there a justifiable, reasonable and substantial difference between these participants in workmen’s compensation benefits who did not qualify for unemployment compensation benefits because they were drawing weekly benefits under the workmen’s compensation act and those with the same disability, suffering injury at the same time, who received their workmen’s compensation benefits in one lump sum * * * ?
“There is no substantial, rational or justifiable difference between the classes established by this amendment pertaining to the lump sum payment exception. The injury is the same; the disability is the same; the length of the incapacity is the same; and even the benefits to which the two classes are entitled are the same. Plaintiff, who falls into the classification of one receiving weekly benefits rather than having taken a lump sum settlement prior to filing for unemployment compensation benefits, is deprived of the constitutional right of equal protection of the laws since all, including this plaintiff, have not been treated alike in determining their eligibility * * ”
See also State ex rel. Morgan v. White, 136 Mont. 470. 348 P.2d 991 (1960).
BEEBE, D. J., concurs in the dissent.