(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 Jeffrey v. Hays Plumbing & Heating, 118 N.M. 60, 63, 878 P.2d 1009, 1012 (Ct.App.1994), and State ex rel. Helman v. Gallegos, 117 N.M. 346, 871 P.2d 1352 (1994), on which it relied, pointed out the dangers of reading statutes too literally. But, importantly, Jeffrey expressly recognized the corresponding dangers of interpretation, so that “we must take great care not to substitute our personal preferences for the intentions of the legislature.” See Jeffrey, 118 N.M. at 63, 878 P.2d at 1012. Thus, both Jeffrey and Helman did not begin the task of interpretation until the Courts found specific ambiguities in either the language of the particular statutory provision involved or in statutory provisions so related to one another that they had to be read together. See Helman, 117 N.M. at 353, 354-55, 871 P.2d at 1359, 1360-61; Jeffrey, 118 N.M. at 62-63, 878 P.2d at 1011-12. The same cannot be said in this case, where the majority relies not on specific textual ambiguities, but rather on a general sense of the legislative policy in enacting the 1990 revisions to the Workers’ Compensation Act.
24. The error in relying on general legislative policy was made clear by the limitations placed on Jeffrey in Ortiz v. BTU Block & Concrete Co., 1996-NMCA-097, ¶¶ 11-13, 122 N.M. 381, 925 P.2d 1. There, we said that policy arguments could assist us in understanding ambiguous legislative text, but they could not be used to alter unambiguous statutory provisions. Id. We further noted that expressions of policy that have assisted in interpreting ambiguous statutory provisions in prior eases could not be used as “free-floating legal rule[s] to be applied whenever a court wishes.” Id. at ¶ 11. In a similar vein, the Supreme Court cautioned that courts should not construe statutory language as “ ‘the court may think it ... would have been written if the Legislature had envisaged all the problems and complications which might arise in the course of its administration.’” Helman, 117 N.M. at 352, 871 P.2d at 1358 (quoting Perea v. Baca, 94 N.M. 624, 627, 614 P.2d 541, 544 (1980)).
25. In this ease, the legislative text is clear. It requires, at a minimum, the offer of a job at equal or greater wages and an unreasonable refusal of the offer, if not actual employment in such a job, before compensation benefits may be reduced by elimination of the statutory modifiers. Jeffrey, 118 N.M. at 63-64, 878 P.2d at 1012-13. I appreciate that it is the “high duty and responsibility of the judicial branch of government to facilitate and promote the legislature’s accomplishment of its purpose,” see Helman, 117 N.M. at 353, 871 P.2d at 1359, but without textual ambiguity, absurdity, or some other textual indication of mistake or contrary intent, I believe that the law and legislative purpose is better served by using the plain-meaning branch of the statutory-interpretation tree in this case.
26. Finally, even if the legislation at issue here were ambiguous within itself and thus arguably allowed interpretation, as was the case in both Jeffrey and Helman, I cannot say that the legislative design points so clearly in one direction that it would deny application of the statutory modifiers to people solely because of their incarceration. The purpose of the Workers’ Compensation Act is to provide a substitute for lost wages — to keep both workers and their dependents off the public welfare rolls and to make industry bear the burden of injured workers. See Wylie Corp. v. Mowrer, 104 N.M. 751, 752, 726 P.2d 1381, 1382 (1986). The record in this case reflects that Worker indeed has two minor children who were dependent on him. I cannot say that the legislature did not intend to protect them by its omission of a forfeiture-of-benefits provision for people who are incarcerated. See King v. Industrial Comm’n, 850 P.2d 1281, 1292-96 (Utah Ct.App.1993). Although Utah’s scheme is different from ours, the Utah court found the absence of statutory language creating such a forfeiture to be significant. See id. I find it equally significant here. See Ortiz, 1996-NMCA-097, ¶¶ 11-13, 122 N.M. 381, 925 P.2d 1; see also Patterson v. Globe Am. Cas. Co., 101 N.M. 541, 543, 685 P.2d 396, 398 (Ct.App.1984) (where legislature shows that it knows how to create certain remedies, the fact that it did not create one in a particular situation suggests that it did not intend to).
27.The majority holding otherwise, I respectfully dissent.