Millard, J.
The claim of Edwin C. Sorenson for compensation for injuries sustained by him January 10, 1929,
while engaged in extrahazardous employment in the employ of Weyerhaeuser Timber Company was allowed by the department of labor and industries. Sorenson was classified as permanently and totally disabled, on which basis he was awarded a pension.
July 21, 1936, upon the petition of claimant, the department converted his pension into a lump sum payment of
$2,795.90,
which was fifty per cent of the computed value of his pension reserve at that time. The departmental order approving the settlement recited that it was made pursuant to Rem. Rev. Stat, §§ 7681, 7684 [P. C. §§ 3475, 3478], with the understanding that the claimant was to return to his home in Norway. The sections of the statute cited provide that, in the event any payment shall be due an alien residing in a foreign country, the department may settle the same by making a lump sum payment in such amount to which the alien may agree not to exceed fifty per cent of the value of the annuity then remaining.
Shortly following receipt of the lump sum payment, claimant returned to Norway where he remained for more than a year. Upon his return to this country, he was physically much improved, and, from November, 1937, to May, 1938, he worked at various places at various employment. May 10, 1938, he reentered the employment of Weyerhaeuser Timber Company at .extrahazardous work and, while so employed May 25, 1938, he sustained a further injury to the foot which was previously injured and for which he was awarded a pension as stated above.
Sorenson’s claim based on the second injury was rejected by the department. The departmental decision was sustained on appeal by the claimant to the superior court. In
Sorenson v. Department of Labor & Industries,
12 Wn. (2d) 355, 121 P. (2d) 978, we reversed the judgment of the superior court dismissing the claimant’s appeal from the joint board, and remanded the cause with direction to proceed in accordance with the views expressed in our opinion. Following entry of judgment in the superior court upon the remittitur from this court, the department paid to the claimant $1,204.10, thus making the full sum of four thou
sand dollars paid to claimant, and closed the original claim. The claim for the second injury was closed without payment. Claimant retained the additional payment from which settlement he appealed to the superior court for King county, which entered judgment sustaining the action of the department. The claimant appealed.
Appellant contends that, as the order of settlement of July 21, 1936, under which his pension was converted to a lump sum payment was void, and he physically recovered thereafter and returned to his extrahazardous employment where he sustained a second compensable injury, he is entitled to compensation for the combined effect of his injuries, less the amount which he has already received as a lump sum settlement. Appellant’s counsel argues that, pursuant to the mandate of this court in
Sorenson v. Department of Labor & Industries,
12 Wn. (2d) 355, 121 P. (2d) 978, the trial court should have directed the department to do two things:- (1) Allow all temporary total disability compensation due to the appellant for his second compensable injury — thirty-five dollars monthly fromAJune 3, 1938 — and continue such payments on a monthly basis; (2) place the appellant on the pension roll for the combined effect of his injuries and apply lump sum payment already made as an advance payment on the monthly amounts, until the sum of $2,795.90 has thus been exhausted, or else it should take credit for that amount as a partial conversion after the value of appellant’s annuity has been fixed by the state insurance commissioner, and then continue to make monthly payments, reduced accordingly and proportionately.
Counsel for the department and counsel for the employer insist that, as appellant was classified under his first claim as permanently and totally disabled — highest disability rating known to the law — and Upon that rating was granted the highest compensation allowable under the workmen’s compensation act, he may not, if he physically recovers from the first injury, be compensated from the accident fund for further injuries received while in extrahazardous employment.
The sole question is whether there has been a com
pliance with the direction of this court in
Sorenson v. Department of Labor & Industries,
12 Wn. (2d) 355, 121 P. (2d) 978. In that case, answering the argument of the department that appellant’s condition was due to his former condition of permanent total disability, we stated appellant’s second injury suffered in the course of his employment was a compensable injury under the workmen’s compensation act, under the definition of “injury” which we had consistently defined as one which resulted from exertion which the workman was unable to endure in his then condition of health.
We held, citing
Harrington v. Department of Labor & Industries,
9 Wn. (2d) 1, 113 P. (2d) 518, and quoting therefrom as follows, that, if appellant had been fully compensated under his first claim for permanent total disability, he was not entitled to any further award for the second injury:
“Having been classified as permanently and totally disabled, respondent could not, in law, be further disabled. He had already received the highest disability rating known to the law, and upon that rating had been granted the highest compensation allowable under the workmen’s compensation act.
“The mere fact that a workman may recover from an injury which has been classified as a permanent total disability, and for which he has been fully compensated, does not negative the fact that he has already received all the benefits that may be allowed for permanent and total disability.”
Citing
Booth v. Department of Labor & Industries,
189 Wash. 201, 64 P. (2d) 505, and
Horton v. Department of Labor & Industries,
199 Wash. 212, 90 P. (2d) 1009, we held that, as the department had failed to pay the full amount of four thousand dollars to which appellant was entitled, the lump sum payment considered as a final settlement was void, but that
“ . . . appellant may not directly be awarded the additional compensation which he was entitled to receive on his lump sum settlement because he did not appeal from the
joint board’s order denying his application to reopen his earlier claim.”
We did not hold that, because the department failed to pay appellant the full amount of four thousand dollars at the time of conversion to a lump sum settlement, the steps antecedent to the payment were void. We held that the order fixing the amount to be paid on conversion was void in the sense that it did not relieve the department from payment of the full amount due to the appellant. The additional compensation which appellant was entitled to receive on his lump sum settlement could not be
directly awarded,
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Millard, J.
The claim of Edwin C. Sorenson for compensation for injuries sustained by him January 10, 1929,
while engaged in extrahazardous employment in the employ of Weyerhaeuser Timber Company was allowed by the department of labor and industries. Sorenson was classified as permanently and totally disabled, on which basis he was awarded a pension.
July 21, 1936, upon the petition of claimant, the department converted his pension into a lump sum payment of
$2,795.90,
which was fifty per cent of the computed value of his pension reserve at that time. The departmental order approving the settlement recited that it was made pursuant to Rem. Rev. Stat, §§ 7681, 7684 [P. C. §§ 3475, 3478], with the understanding that the claimant was to return to his home in Norway. The sections of the statute cited provide that, in the event any payment shall be due an alien residing in a foreign country, the department may settle the same by making a lump sum payment in such amount to which the alien may agree not to exceed fifty per cent of the value of the annuity then remaining.
Shortly following receipt of the lump sum payment, claimant returned to Norway where he remained for more than a year. Upon his return to this country, he was physically much improved, and, from November, 1937, to May, 1938, he worked at various places at various employment. May 10, 1938, he reentered the employment of Weyerhaeuser Timber Company at .extrahazardous work and, while so employed May 25, 1938, he sustained a further injury to the foot which was previously injured and for which he was awarded a pension as stated above.
Sorenson’s claim based on the second injury was rejected by the department. The departmental decision was sustained on appeal by the claimant to the superior court. In
Sorenson v. Department of Labor & Industries,
12 Wn. (2d) 355, 121 P. (2d) 978, we reversed the judgment of the superior court dismissing the claimant’s appeal from the joint board, and remanded the cause with direction to proceed in accordance with the views expressed in our opinion. Following entry of judgment in the superior court upon the remittitur from this court, the department paid to the claimant $1,204.10, thus making the full sum of four thou
sand dollars paid to claimant, and closed the original claim. The claim for the second injury was closed without payment. Claimant retained the additional payment from which settlement he appealed to the superior court for King county, which entered judgment sustaining the action of the department. The claimant appealed.
Appellant contends that, as the order of settlement of July 21, 1936, under which his pension was converted to a lump sum payment was void, and he physically recovered thereafter and returned to his extrahazardous employment where he sustained a second compensable injury, he is entitled to compensation for the combined effect of his injuries, less the amount which he has already received as a lump sum settlement. Appellant’s counsel argues that, pursuant to the mandate of this court in
Sorenson v. Department of Labor & Industries,
12 Wn. (2d) 355, 121 P. (2d) 978, the trial court should have directed the department to do two things:- (1) Allow all temporary total disability compensation due to the appellant for his second compensable injury — thirty-five dollars monthly fromAJune 3, 1938 — and continue such payments on a monthly basis; (2) place the appellant on the pension roll for the combined effect of his injuries and apply lump sum payment already made as an advance payment on the monthly amounts, until the sum of $2,795.90 has thus been exhausted, or else it should take credit for that amount as a partial conversion after the value of appellant’s annuity has been fixed by the state insurance commissioner, and then continue to make monthly payments, reduced accordingly and proportionately.
Counsel for the department and counsel for the employer insist that, as appellant was classified under his first claim as permanently and totally disabled — highest disability rating known to the law — and Upon that rating was granted the highest compensation allowable under the workmen’s compensation act, he may not, if he physically recovers from the first injury, be compensated from the accident fund for further injuries received while in extrahazardous employment.
The sole question is whether there has been a com
pliance with the direction of this court in
Sorenson v. Department of Labor & Industries,
12 Wn. (2d) 355, 121 P. (2d) 978. In that case, answering the argument of the department that appellant’s condition was due to his former condition of permanent total disability, we stated appellant’s second injury suffered in the course of his employment was a compensable injury under the workmen’s compensation act, under the definition of “injury” which we had consistently defined as one which resulted from exertion which the workman was unable to endure in his then condition of health.
We held, citing
Harrington v. Department of Labor & Industries,
9 Wn. (2d) 1, 113 P. (2d) 518, and quoting therefrom as follows, that, if appellant had been fully compensated under his first claim for permanent total disability, he was not entitled to any further award for the second injury:
“Having been classified as permanently and totally disabled, respondent could not, in law, be further disabled. He had already received the highest disability rating known to the law, and upon that rating had been granted the highest compensation allowable under the workmen’s compensation act.
“The mere fact that a workman may recover from an injury which has been classified as a permanent total disability, and for which he has been fully compensated, does not negative the fact that he has already received all the benefits that may be allowed for permanent and total disability.”
Citing
Booth v. Department of Labor & Industries,
189 Wash. 201, 64 P. (2d) 505, and
Horton v. Department of Labor & Industries,
199 Wash. 212, 90 P. (2d) 1009, we held that, as the department had failed to pay the full amount of four thousand dollars to which appellant was entitled, the lump sum payment considered as a final settlement was void, but that
“ . . . appellant may not directly be awarded the additional compensation which he was entitled to receive on his lump sum settlement because he did not appeal from the
joint board’s order denying his application to reopen his earlier claim.”
We did not hold that, because the department failed to pay appellant the full amount of four thousand dollars at the time of conversion to a lump sum settlement, the steps antecedent to the payment were void. We held that the order fixing the amount to be paid on conversion was void in the sense that it did not relieve the department from payment of the full amount due to the appellant. The additional compensation which appellant was entitled to receive on his lump sum settlement could not be
directly awarded,
because of appellant’s failure to appeal from the joint board’s order denying his application to reopen his first claim — claim based on the first injury. We held, however, that the case was within the following provision of paragraph^ (g) °f Rem. Rev. Stat., § 7679 [P. C. § 3472]:
“Should a further accident occur to a workman who has been previously the recipient of a lump sum payment under this act, his future compensation shall be adjudged according to the other provisions of this section and with regard to the combined effect of his injuries and his past receipt of money under this act.”
and that, in disposing of appellant’s claim, the procedure outlined in the following excerpt from
Booth v. Department of Labor & Industries, supra, modified to conform to the circumstances of the case at bar, should be adopted:
“In view of our construction of the statute, as already declared, the ready and easy solution of the immediate problem, considered in the abstract, would be to compel the respondent [the workman’s widow] to return the lump sum payment and thus place the parties
in statu quo.
In all probability, however, that is now impossible for her to do. The question then is, what is the fair and equitable equivalent, from the practical standpoint, bearing in mind, at all times, the aim and purpose of the workmen’s compensation act in the matter of relief to those who come within its provisions.
“It seems to us that the proper solution, if respondent refuses or fails to repay the lump sum amount, lies in an alternative. The department should either apply the lump sum payment already made, as an advance payment on the
monthly amounts, until the sum of twenty-six hundred dollars has thus been exhausted, or else it should take credit for that amount as a partial conversion after the value of respondent’s annuity has been fixed and certified by the state insurance commissioner, and then continue to make monthly payments, reduced accordingly and proportionately. The department, of course, should have the right to elect which of these alternatives it will adopt and follow.”
In
Horton v. Department of Labor & Industries, supra,
the injured workman was classified as permanently totally disabled. On his petition therefor the department converted his monthly pension payments to a lump sum settlement, paying the claimant three thousand dollars. Subsequently, the claimant petitioned the department for reinstatement on a monthly pension basis. The claim was reopened and an additional award of one thousand dollars was paid to the claimant, thus bringing the lump sum payment up to the statutory maximum of four thousand dollars, the utmost that could have been paid under the workmen’s compensation, act. The claimant refused the additional award and prayed that the three thousand dollar payment theretofore made be treated as an advance on the monthly payment due him for permanent total disability. The argument made in behalf of claimant on appeal to this court was that no pension reserve was set up or any computation of the value of his annuity made by the state insurance commissioner; and that the lump sum settlement of three thousand dollars was void under the rule announced in
Booth v. Department
of
Labor & Industries, supra,
and that the settlement could not be validated by payment of the additional one thousand dollars.
We held that the department could not have forced appellant to accept a lump sum settlement, but, when he petitioned for a settlement, the department had the option of granting or denying his petition. When the department acceded to his request it was required to pay the claimant in settlement a lump sum in accordance with the statute (Rem. Rev. Stat., § 7681). The value of appellant’s monthly pension exceeded four thousand dollars, the maximum
amount which could be paid on conversion under the statute. We held that the department, in conformity to
Booth v. Department of Labor & Industries, supra,
having made the additional allowance of one thousand dollars to the appellant^ who retained same, appellant had received the full amount to which he was entitled on conversion. We stated that the order fixing the amount to be paid on conversion was void in the sense that it did not relieve the department of the full amount to appellant, but that, when thereafter the department paid him all that it could have awarded under the law at the time of conversion, it satisfied the requirements of the statute; and that we could not agree with the contention of appellant that, because the department failed to pay him the full four thousand dollars at the time of conversion, the steps antecedent to the payment were void.
In
Booth v. Department of Labor & Industries, supra,
we held that, as the widow refused or failed to repay the twenty-six hundred dollars — the lump sum amount she had received as a lump sum settlement, the department could take credit for that amount as a partial conversion, after the value of the widow’s annuity had been fixed by the insurance commission. The widow would then be entitled to monthly payments, under her claim, of an additional fourteen hundred dollars, or $12.25 monthly, instead of a pension of thirty-five dollars monthly.
In our opinion in
Sorenson v. Department of Labor & Industries, supra,
we directed that, in disposing of appellant’s claim, the procedure outlined in
Booth v. Department of Labor & Industries, supra, modified to conform to the circumstances of the case at bar
should be adopted. A proper disposition was made of the claim.
The department took credit for the advance payment as a partial conversion and remitted to appellant the additional sum, on appellant’s petition which had not been withdrawn, as full settlement of the claim. The four thousand dollars received by claimant was retained by him. Having been classified as permanently totally disabled aiid having
received the maximum allowed under the law therefor as a lump sum settlement, appellant may not be compensated out of the accident fund for further injuries received while in extrahazardous employment. The foregoing is in harmony with our mandate in
Sorenson v. Department of Labor & Industries, supra,
which follows
Booth v. Department of Labor & Industries, supra; Horton v. Department of Labor & Industries, supra;
and
Harrington v. Department of Labor
&
Industries, supra.
The judgment is affirmed.
Simpson, C. J., Beals, Steinert, Robinson, Jeffers, and Grady, JJ., concur.