dissenting:
I must respectfully dissent. K. S. A. 1976 Supp. 44-510b (j) *136which provides a workmen’s compensation “offset” in the case of the death of an employee covered both by workmen’s compensation and social security should be declared unconstitutional.
Basically the workmen’s compensation law takes from an employee the common-law right to sue the employer for damages negligently inflicted in return for payment of limited or scheduled benefits for disability or death arising out of and in the course of employment. This court has held if a workman can recover workmen’s compensation under the Workmen’s Compensation Act for an injury the remedy is exclusive, and one cannot maintain a common-law action for damages founded upon negligence against the party from whom he could have recovered compensation under the Act. (K.S.A. 1976 Supp. 44-501; Moeser v. Skunk, 116 Kan. 247, 251, 226 Pac. 784; Woods v. Cessna Aircraft Co., 220 Kan. 479, 482, 553 P.2d 900, and authorities cited therein.)
This court has also held that substituting one’s rights under the Workmen’s Compensation Act for one’s common-law tort remedies does not violate constitutional guarantees. (Shade v. Cement Co., 92 Kan. 146, 139 Pac. 1193, reh. 93 Kan. 257, 144 Pac. 249; and Woods v. Cessna Aircraft Co., supra at 482.) (See also 81 Am. Jur. 2d, Workmen’s Compensation, Sec. 21, pp. 715-716.)
Here the court has a situation where both common-law rights and workmen’s compensation benefits are removed. Such a situation, in my opinion, violates due process and contravenes the Bill of Rights, Sec. 18, which reads:
“All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.”
Furthermore, the provisions of K. S. A. 1976 Supp. 44-510b (j) violate the equal protection clause. Under the Kansas Workmen’s Compensation Act as now constituted, a widow with no children would receive the full amount of compensation benefits with no offset. However, a widow with children, who certainly has the greater need for wage replacement, receives an offset almost totally equaling her workmen’s compensation benefits.
If one’s dependents were to receive private insurance monies, no offset would be applied to reduce the workmen’s compensation benefits. Although one does not have an accrued property right in social security benefits (Flemming v. Nestor, 363 U.S. 603,4 L.Ed. 2d 1435, 80 S. Ct. 1367), social security benefits may *137fairly be compared to private insurance. In Andler v. Andler, 217 Kan. 538, 538 P.2d 649, this court noted:
“The United States Congress has seen fit to place the federal government in the role of insurer in order to afford members of the work force the protection and security of insurance against future disability. The fundamental nature of the Social Security system is a form of insurance in every sense of that word. Benefits paid out by a governmental insurer, under a policy of insurance for which the insured has paid premiums, are no more gratuitous than benefits paid out by a private insurance company. . . .” (p. 543.)
Similarly if one’s dependents were to receive other federal funds, such as veteran’s administration benefits, no offset would be applied.
If one covered by the Kansas Public Employees Retirement System (K. S. A. 74-4901 etseq.), the Kansas Police and Firemen’s Retirement System (K. S. A. 74-4951 et seq), or the Kansas Army and Air National Guard benefits (K. S. A. 48-261 et seq) were to die from an accident arising out of and in the course of duty, no offset would be applied.
If one were to become disabled but not die, no workmen’s compensation offset would be applied by the State of Kansas. Why should an offset be applied to death benefits under the Kansas Workmen’s Compensation Act and no others?
It should also be noted when an employee dies, 44-510b (j), supra, rewards an employer who may have been negligent by awarding a credit on the payment of future compensation otherwise due under the Workmen’s Compensation Act for a total equal to one-half (V2) of the total amount of social security payments made subsequent to a period during which compensation payments were made by the employer, but which are attributed to such period. Workmen’s compensation insurance costs are based on the actual loss experience of industry groups and of individual employers. This gives the employer a direct financial incentive to improve safety on the job. If workmen’s compensation costs are absorbed into the social security program, employers without safety programs and those whose employment is hazardous would pay no more than those who have adopted safety programs or who have less hazardous employment.
Under federal and Kansas equal protection constitutional provisions, a state statute may single out a class of persons for distinctive treatment only if the classification bears a rational *138relation to the purpose of the legislation. (Henry v. Bauder, 213 Kan. 751, 518 P.2d 362.) Applying that test, I would hold 44-510b (j), supra, unconstitutional.
It must be admitted in Richardson v. Belcher, 404 U.S. 78, 30 L.Ed. 2d 231, 92 S.Ct. 254, the United States Supreme Court upheld an offset in the social security benefits for workmen’s compensation disability benefits received, a situation somewhat the reverse of the situation which faces the court. That case may be distinguished in three ways.
First, the offset was applied to social security benefits, not to workmen’s compensation benefits for which one has surrendered common-law tort remedies.
Second, the offset applied to all workmen’s compensation disability benefits to whomever paid. That offset did not distinguish between a widow with children and a widow without children, and further adopt the irrational policy of punishing a widow with children.
Third, the court showed that without the offset in 35 of the 50 states, a typical worker injured in the course of his employment and eligible for both state and federal benefits received compensation for his disability in excess of his take-home pay prior to the disability. In a death benefit case such reasoning is inapplicable. The fear that an injured employee who receives disability benefits under workmen’s compensation and social security in excess of his take-home pay prior to the disability will not return to work is valid. A fear that an employee will commit suicide or that the dependent’s total benefits will exceed the take-home pay prior to death is irrational.
Three other states, Colorado, Montana and Minnesota, apply some kind of deduction to workmen’s compensation benefits for social security benefits. (4 Larson, Workmen’s Compensation Law, Sec. 97.35 [1976].) Only Minnesota appears to apply the deduction to death cases. (Minn. Stat. Ann. 1976 Supp. Sec. 176.101[4].) No constitutional challenge has been made to the Minnesota statute. Although not precisely on point, O’Donnell v. State Farm Ins., 70 Mich. App. 487, 245 N. W. 2d 801 (1976), held a statute which reduces the amount of recoverable no-fault benefits by the amount of compensation paid under any state or federal law to be unconstitutionally discriminatory. Such reasoning is applicable here.
*139Senate Bill No. 198 now pending before the 1977 session of the legislature would repeal K. S. A. 1976 Supp. 44-510b (j).
It is respectfully submitted 44-510b (j), supra, should be declared unconstitutional.
Owsley, J., joins in the foregoing dissenting opinion.