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Connick v. County of Bernalillo2/9/1998
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A. JOSEPH ALARID, Judge (specially Concurring)
LYNN PICKARD, Judge (concurring in part, Dissenting in part)
ALARID, Judge (Specially Concurring)
{19} I concur with the portion of the majority's opinion that holds Defendant is not entitled to the benefits of the workers' compensation statutory modifiers. NMSA 1978, Section 52-1-26 (1990) (effective Jan 1, 1991). Defendant, by committing a felony, has voluntarily removed himself from the job market and therefore, is not eligible for this portion of workers' compensation. See . I concur in the result with the Defendant retaining his 22% permanent partial disability payment. However, I concur only because it is not our place to make shifts within the worker's compensation statute. Making the kind of policy shift recommended within this opinion is incumbent upon the legislature.
{20} I am of the opinion that New Mexico should adopt a policy like that of the Federal Government's Social Security program which tolls workers' compensation benefits while individuals are incarcerated. Under 42 U.S.C. 402 (x) (A) (1) benefits paid for old age, survivors, auxiliary and disability insurance benefits are not paid to individuals while they are incarcerated. The rationale behind the Federal Government's exclusion of such benefits is that the needs of the incarcerated are not as great as the needs of others. Hopper v. Schweiker, 596 F. Supp. 689, 692 (M.D. Tenn. 1984). During the term of incarceration, the state provides for the fundamental needs of the inmates, such as medical care, food, clothing and shelter. Id.; see also 143 Cong. Rec. S1917-04 (1997); 143 Cong. Rec. H1917-04 (1997); 143 Cong. Rec. S2274-03 (1997).
{21} The rationale that incarcerated individuals' needs are being met by the state, coupled with the notion that the benefits should be tolled during incarceration, better serves the interests of the injured worker/incarcerated individual. I would recommend tolling workers' compensation benefits for permanent partial disability during the term of incarceration. The incarcerated individual does not need this payment to meet his basic needs as they are provided for by the state. However, if the worker receives these payments while incarcerated, he may use up all of his eligibility years and once released, will not have the security of those payments, when he will most likely be in need of them. If the payments are tolled and resume upon release, the payments may help the worker in the tenuous period of reassimilation into society after release when the state is no longer providing for the worker's needs. In fact, it may help those workers from becoming repeat offenders. If the worker has a permanent disability, obtaining full employment may prove to be difficult, especially just after release from prison. The transition would not be as difficult if the worker was to receive his back worker's compensation payments for his permanent partial disability.
A. JOSEPH ALARID, Judge
PICKARD, Judge (concurring in part and Dissenting in part).
{22} I concur in that portion of the opinion that affirms the award of benefits based on a 22% impairment rating, and I Dissent from that portion of the opinion that reverses the remainder of the award. In my view, there is nothing in the statutory text that would allow a court to construe the Workers' Compensation Act to deny full benefits to a prisoner who is stipulated to be unable to perform work, whether incarcerated or not.
{23} I acknowledge that both ), and , on which it relied, pointed out the dangers of reading statutes too literally. But, importantly, Jeffrey expressly recognized the corresponding dan
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