dissenting.
I agree with the views of Judge Anthony M. Wilhoit writing for a unanimous panel of the Court of Appeals. In dissent, I quote Judge Wilhoit’s opinion in its entirety:
BEFORE: CLAYTON, REYNOLDS, and WILHOIT, Judges.
WILHOIT, JUDGE. The issue presented in this appeal is whether a prisoner working for a state agency outside of prison is an employee of the agency covered by the Workers’ Compensation Act. The appellee Jerry Ross Smith was incarcerated at the Frankfort Career Development Center, a minimum security correctional facility, and working at the appellant Division of Surplus Property when he was injured in February 1983. The Workers’ Compensation Board dismissed the appellee’s claim for compensation benefits, finding no contract of hire. The circuit court reversed, stating that there was at least an implied contract for hire between the parties. We agree with the circuit court’s rationale and affirm the judgment.
KRS 342.640(3) states that “every person in the service of the state or of any political subdivision or agency thereof, ... under any contract of hire, express or implied, ...” is an employee subject to the Workers’ Compensation Act. The former Court of Appeals in Tackett v. LaGrange Penitentiary, Ky., 524 S.W.2d 468 (1975), held that an inmate confined in a penitentiary and working in a prison industry is not an employee of the state because “a convict cannot and does not enter into a true contract of hire with the authorities by whom he is confined.” 524 S.W.2d at 469. The facts in Tackett differ from those in the instant case. Tackett was at all times under the control of the prison authorities; the warden could not choose to fire Tackett; and Tackett pressed his claim for benefits against the confinig authority. These factors are absent in this case.
Other jurisdictions are more willing to find that a contract for hire exists when a prisoner works for another state agency or employer. See 1C A. Larson, The Law of Workmen’s Compensation § 47.31(d) (1986). Many of the indicia used by other courts in finding employee status are present in this case. The ap-pellee volunteered for this work in that he requested a transfer from the state penitentiary. A1 Parke, then Commissioner in the Department for Adult Institutions, testified that an inmate may request a transfer location and work preference. A classification committee makes the assignments taking into consideration the inmate’s requests. The appellant signed a “Memorandum of Understanding” with the Corrections Cabinet wherein the appellant agreed to accept liability for injury to an inmate which occurs while the inmate is under the appellant’s control. Once the appel-lee was transported to the appellant’s facility, he was under the appellant’s authority, and the appellee’s work duties were controlled by the appellant. See City of Franklin v. Dept. for Human Resources, Ky.App., 581 S.W.2d 358 (1979). The appellee was supervised in the same manner as an ordinary employee by the appellant. Mr. Parke testified that the Corrections Cabinet would get involved in the appellee’s work situation only on a spot check or if a problem developed. We believe that taking these factors under consideration, the circuit court was correct in finding that an implied contract for hire existed between the parties.
More than ten years ago, this issue was called to the legislature’s attention in Tackett. We reissue the call for legislative action. A prisoner who has sustained a permanent injury while in custody will encounter the same difficulties upon his release as he would if the injury occurred when he was not in custody. Tackett, 524 S.W.2d at 469; 1C A. Larson, The Law of Workmen’s Compensation § 47.31(e) (1986). Several states have enacted statutes dealing with this situation. See 1C A. Larson, The Law of Workmen’s Compensation § 47.31(f) (1986).