specially concurring.
To my mind the Court’s opinion only more confuses an already confused area of law. The Court distinguishes Guy v. Guy, 98 Idaho 205, 560 P.2d 876 (1977), by maintaining that worker’s compensation benefits can better be equated with a right to sue one’s employer rather than as a fringe benefit of employment. If this analysis were pursued, the next step would be to decide whether a cause of action or an accomplished tort recovery for damages becomes separate property after divorce. The Court declines to pursue this analysis, however, instead choosing to reach its holding on an analysis of the purpose behind worker’s compensation benefits. The Court maintains that since worker’s compensation benefits are paid to substitute for lost earning capacity, the community has no claim to benefits for disability after divorce. In the words of the Court, “To hold otherwise would result in the deprivation of an individual’s basic source of financial security.” Unfortunately, this rationale applies equally well to the disability policy in Guy. The end result is that the Court has used one rationale to distinguish Guy, but has then switched to another rationale which applies equally well to Guy in order to reach its result.1
Nonetheless, I do believe this case is distinguishable from Guy.2 One of appellant’s *656arguments in Guy was that his disability payments were analogous to personal injury damages and thus should be his separate property under Rogers v. Yellowstone Park Co., 97 Idaho 14, 539 P.2d 566 (1974). Although the Court by its holding implicitly rejected this argument, it did state “In the usual third-party tort situation .. . the rule remains unchanged, i.e., an award for future earnings is community property at least to the extent the award compensates for earnings to be lost during the marriage.” 98 Idaho at 208, 560 P.2d at 879. The Court rejected that argument because the disability insurance plan in Guy was not analogous to a tort recovery. Community funds purchased an insurance policy, and that policy paid off on the occurrence of an event, to-wit, the disability. As such, the payments were more analogous to an insurance policy purchased with community funds than to a tort recovery.
In the case of worker’s compensation, however, the above analogy holds. As noted by the majority, worker’s compensation “stands in place of an employee’s common law right of civil action against his employer for damages on account of on-the-job personal injury.” Thus I would simply hold that worker’s compensation benefits, being more akin to a personal injury tort recovery than to an insurance policy purchased with community assets, become separate property after a divorce.
. The Court’s citation to Bugh v. Bugh, 125 Ariz. 190, 608 P.2d 329 (Ariz.App.1980), and Hicks v. Hicks, 546 S.W.2d 71 (Tex.Civ.App.1976), as support for the statement that “Other community property jurisdictions have reached similar conclusions” might also lead to confusion. The court in Hicks held that awarding future worker’s compensation benefits to a claimant’s former spouse was an involuntary judicial assignment of worker’s compensation benefits, and as such was forbidden by statute. The Court does not address that issue in this case, however, and Hicks provides no support for the Court’s holding. While Bugh did hold that worker’s compensation benefits after divorce are separate property, that court distinguished retirement and profit sharing and pension plans as being deferred compensation. The same day that Bugh was released, another Arizona court of appeals held, in direct opposition to Guy, that all disability payments after divorce are separate property. In re Marriage of Kosko, 125 Ariz. 517, 611 P.2d 104 (Ariz.App.1980). That court utilized basically the same rationale as the court in Bugh to distinguish disability and retirement benefits. Thus the circle is complete. After distinguishing Guy by one means, the Court cites Bugh for a rationale that another Arizona court of appeals has used to reach a result directly contrary to Guy.
. If a majority of this Court firmly believes the rationale set forth in the majority opinion, that “The dispositive question ... is not whether the right to receive benefits vested during marriage, but rather to what extent the award compensates for loss of earning capacity during marriage,” then the Court would do well to reexamine the holding in Guy with a view toward overruling it. The Court today states that “since workmen’s compensation is paid to make good the impairment or loss of an individual’s future capacity to earn, the community *656cannot lay claim to the whole of the benefit where it compensates for a period of disability which extends beyond the time of divorce.” This statement could equally as well have been utilized in Guy, and it could have led to a different result in that case.