dissenting.
Respectfully, I dissent.
The distinction between Tackett v. LaGrange Penitentiary, Ky., 524 S.W.2d 468 (1975), and this case is fundamental: Tackett was working in the penitentiary; Smith was working at the Department of Education, Division of Surplus Properties, under a memorandum of understanding with the employing state agency requiring the agency to accept liability for injuries to inmates at work the same as with other employees working at their side. Smith was the intended beneficiary of this contract of employment. KRS 197.130 provides that “[prisoners ... shall not be required to work outside ... the prison except” voluntarily. Smith qualifies for workers’ compensation under KRS 342.-640(1).
I agree with the Majority Opinion that one aspect of Tackett is controlling: A convict is not entitled to receive workers’ compensation from the state during the period of his incarceration. His work belongs to the state.
These conflicting concepts should be accommodated by judicially interpreting the two principles to function harmoniously: payment of workers’ compensation benefits for occupational disability from an injury occurring during voluntary employment outside the penitentiary is covered by the law, but payment of benefits should be suspended during the period of continued incarceration because the prisoner is then prevented from seeking gainful employment by his status and not by his injury.