As was said in United Riggers Erectors, 131 Ariz. at 262, 640 P.2d at 193, "[i]n the absence of legislation providing for a suspension of workmen's compensation benefits during periods while the claimant is incarcerated, A.R.S. § 13-904(D) indicates that the imprisonment does not preclude the award of benefits if the employee is otherwise entitled to receive them." See Bearden, 14 Ariz. App. at 343, 483 P.2d at 575; see also State ex rel. Ashcraft v. Industrial Comm'n of Ohio, 472 N.E.2d 1077, 1079 (Ohio 1984); Spera v. State, 713 P.2d 1155, 1158 (Wyo. 1986); Crawford v. Midwest Steel Co., 517 So.2d 918, 924 (La.App. 1987). Now, with the passage of A.R.S. section 23-1031, the Arizona Legislature has acted and passed the requisite enabling law.
971) (holding right to workers' compensation not forfeited during incarceration if sentence less than life because no statute so provides and this is an issue which should be determined by the legislature); Crawford v. Midwest Steel Co., 517 So.2d 918 (La.App. 1987) (holding claimant entitled to benefits despite incarceration because statute does not provide otherwise); DeMars v. Roadway Express, Inc., 99 Mich. App. 842, 298 N.W.2d 645, 647 (1980) (affirming total disability compensation despite felony conviction because denial of benefits under such a situation "is not the province of the Board or the judicial branch"); Forshee Langley Logging v. Peckham, 100 Or. App. 717, 788 P.2d 487 (1990) (holding claimant entitled to temporary total disability during incarceration because he was never medically stationary nor released for work during incarceration); Last v. MSI Constr. Co., 305 S.C. 349, 409 S.E.2d 334 (1991) (awarding incarcerated claimant temporary total disability benefits); In re Spera, 713 P.2d 1155 (Wyo. 1986) (holding under contract principles incarcerated claimant should not be denied temporary total benefits, which under the statute terminate only when the worker recovers and regains his earning power). But see State ex rel. Grennan v. Barry, 71 Ohio App.3d 385, 594 N.E.2d 51 (1991) (holding employee not entitled to compensation during period of incarceration); State ex rel. Ashcraft v. Industrial Comm'n, 34 Ohio St.3d 42, 517 N.E.2d 533 (1987) (denying temporary total disability compensation because incarceration was "voluntary" act removing claimant from work force).
As we have explained in prior opinions, the worker's compensation system in Wyoming is authorized by Art. 10, § 4 of the Wyoming Constitution and provides tort immunity to employers in exchange for employees receiving a type of industrial-accident insurance. Spera v. State, ex rel., Wyo. Workers' Comp. Div., 713 P.2d 1155, 1156 (Wyo. 1986). Thus, the worker's compensation system is not a tort-based system but is, instead, based upon contract.
Bohren v. State ex rel. Worker's Compensation Div., 883 P.2d 355, 358 (Wyo. 1994). Apodaca relies heavily on Matter of Injury to Spera, 713 P.2d 1155 (Wyo. 1986). In that case, the district court suspended Spera's temporary total disability (TTD) benefit payments for the period of his stay in county jail.
See also United Riggers Erectors v. Industrial Comm'n of Ariz., 131 Ariz. 258, 640 P.2d 189 (1981); California adopted an amendment in 1988 which entitles inmate receiving permanent disability benefits for pre-incarceration injury to have the benefits held in trust for him by the Department of Corrections during his incarceration; Walker v. City of Tampa, 520 So.2d 66 (Fla.Dist.Ct.App. 1988); Hardin's Bakery v. Taylor, 631 So.2d 201 (Miss. 1994); SIIS v. Campbell, 109 Nev. 997, 862 P.2d 1184 (1993); Last v. MSI Constr. Co., Inc., 305 S.C. 349, 409 S.E.2d 334 (1991); King v. Industrial Comm'n of Utah, 850 P.2d 1281 (Utah Ct.App. 1993); Baskerville v. Saunders Oil Co., Inc., 1 Va. App. 188, 336 S.E.2d 512 (1985); In re Injury to Spera, 713 P.2d 1155 (Wyo. 1986). [¶ 31.] The Wyoming Supreme Court, and Utah Court of Appeals finding Wyoming's reasoning persuasive, declared the right to receive benefits was contractual, based on a kind of statutory insurance contract and an employee's benefits could not be suspended or terminated due to incarceration unless the contract so specified. The Wyoming court distinguished the law of workers' compensation from the principles of tort law:
The majority of jurisdictions that have considered this issue have reached the same conclusion. See United Riggers Erectors v. Industrial Comm'n of Ariz., 131 Ariz. 258, 640 P.2d 189, 191 (Ariz.Ct.App. 1981); Crawford v. Midwest Steel Co., 517 So.2d 918, 923-924 (La.Ct.App. 1987); DeMars v. Roadway Express, Inc., 99 Mich. App. 842, 298 N.W.2d 645, 646-47 (Ct.App. 1980); State Indus. Ins. Sys. v. Campbell, 109 Nev. 997, 862 P.2d 1184, 1186 (1993); Forshee Langley Logging v. Peckham, 100 Or. App. 717, 788 P.2d 487, 488 (Ct.App. 1990); Last v. MSI Constr. Co., 409 S.E.2d 334, 336-37 (S.C. 1991); King v. Industrial Comm'n of Utah, 850 P.2d 1281, 1295 (Utah Ct.App. 1993); In re Spera, 713 P.2d 1155, 1158 (Wyo. 1986); see also Annot., WorkersComp for Prisoner, 54 A.L.R.4th 241 (1987). Many states have responded by changing their workers' compensation statutes to restrict prisoners' rights to receive disability benefits.
Numerous courts outside this state that have confronted this issue have declined to terminate or suspend benefits absent express statutory authority. See, e.g., Bearden v. Indus. Comm. of Arizona (1971), 14 Ariz. App. 336, 483 P.2d 568; Spera v. Wyoming Worker's Comp. Div. (Wyo. 1986), 713 P.2d 1155; Crawford v. Midwest Steel Co., Inc. (La.App. 1987), 517 So.2d 918; Forshee Langley Logging v. Peckham (1990), 100 Ore.App. 717, 788 P.2d 487; and King v. Indus. Comm. of Utah (Utah App. 1993), 850 P.2d 1281. See, also, United Riggers Erectors v. Indus. Comm. of Arizona (Ariz.App. 1981), 131 Ariz. 258, 640 P.2d 189; and Last v. MSI Constr. Co., Inc. (1991), 305 S.C. 349, 409 S.E.2d 334.
Our review of the statute leads us to a contrary conclusion that, if eligibility is established, the trial court has no discretion to deny payments or offset maintenance costs against payments. In Matter of Injury to Spera, Wyo., 713 P.2d 1155, 1157-1158 (1986) this court stated: "* * * Incarceration has no effect upon benefits which are in the nature of insurance which has become payable as a covered loss. * * *
Three of the jurisdictions cited by Hess have held in other contexts that workmen's compensation laws may be incorporated as terms of employment contracts. See DeMartino v. Zurich Insurance Co., 307 F. Supp. 571, 573 (W.D.Pa. 1969), aff'd, 440 F.2d 1320 (3d Cir. 1971); Matter of Injury to Spera, 713 P.2d 1155, 1156-57 (Wyo. 1986); M.J. Daly Co. v. Varney, 695 S.W.2d 400, 403 (Ky. 1985). Under 1 V.I.C. § 4,
“[T]he worker's compensation system in Wyoming is authorized by Art. 10, § 4 of the Wyoming Constitution and provides tort immunity to employers in exchange for employees receiving a type of industrial-accident insurance.” Perry v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2006 WY 61, ¶ 22, 134 P.3d 1242 at 1249 (citing Spera v. State ex rel. Wyo. Workers' Comp. Div., 713 P.2d 1155, 1156 (Wyo.1986)). “[T]he worker's compensation system is not a tort-based system but is, instead, based upon contract.”