dissenting:
I dissent.
In Hansen v. Harrah’s, 100 Nev. 60, 675 P.2d 395 (1984), we properly filled a legislative void and provided public policy relief for an injured workman who was terminated in retaliation for filing a workmen’s compensation claim. In Goldstine v. Jensen Pre-Cast, 102 Nev. 630, 729 P.2d 1355 (1986), we improperly (I *1106suggested in dissent) allowed a worker to recover compensation, notwithstanding his fraud on the employer, because the legislature had not provided for such a contingency. Today we conclude that an incarcerated felon may collect workmen’s compensation insurance because the legislature failed to deny coverage to such persons.
I am strongly opposed to judicial intrusion on the realm of the legislative branch of government. And yet, many times the courts are called upon to apply a rule of reason to legislative voids or lacunae in order to facilitate the purpose and intent of a statute.
I am awed at the ability of this court to find a public policy basis for granting relief to an injured workman who is fired in retaliation for filing a workmen’s compensation claim (as we did in Harrah’s) and to find no public policy basis for refusing a double recovery of scarce public resources to an incarcerated felon. It is little wonder that our state and nation are experiencing such financial trials.
I have no difficulty discerning a public policy as strongly against the result reached by the majority today as the public policy we so readily discerned in favor of the injured workman who suffered retaliatory discharge in Harrah’s.
Although I dissented in Goldstine because of the strong legal principle against rewarding persons for their own wrongdoing, at least in Goldstine we had an injured workman who was presumably in need of his daily subsistence. Here we have a claimant who, as a result of his own criminal conduct, received a prison sentence which, of necessity, required the furnishing of his daily food, clothing and lodging at taxpayers’ expense. The majority contends in effect that because the legislature did not deny incarcerated persons workmen’s compensation benefits during their periods of confinement, we must assume the dubious proposition that the legislature intended that such persons receive what is tantamount to a double recovery.1 I am unable to endorse such a rule of profligacy.
I find equally unacceptable the majority’s affirmation of the appeals officer’s position that because Campbell was incarcerated, he “neither obstructed nor refused to submit to a CIW [comprehensive integrated work-up].”2 Who must we presume obstructed Campbell’s submission to the required comprehensive *1107integrated work-up — the criminal justice system, the prison officials, or perhaps the inanimate facilities that restrained his ability to travel? I suggest that when Campbell used his free agency to commit a crime against society, thus subjecting himself to a potential loss of his personal freedom, he and he alone frustrated the performance of the CIW, thus suspending his right to compensation. Unfortunately, the appeals officer and this court’s majority impliedly conclude that someone, something, or some force other than Campbell obstructed performance of the CIW.
SIIS reasonably and understandably insists that the statutory phrase “capable of gainful employment”3 “clearly implies a legislative intent to grant benefits for the replacement of lost wages.” SIIS thus concludes that since the prison system provided Campbell’s daily bread and lodging, and since Campbell was not available for entry into the work force, he did not lose any wages.
Disregarding the System’s reasoning, the majority simply concludes that it prefers to “leave such decisions to the discretion of the legislature.” I have little hesitation in agreeing with SIIS. Campbell, by his own deliberate act, removed himself from the work force, and should not be rewarded at the expense of the solvency of the System during his period of incarceration.4
For the reasons specified above, I respectfully dissent.
There is no contention that Campbell needed his disability benefits in order to care for dependents. Presumably, if Campbell had family dependent upon him during his incarceration, welfare assistance would have been available to assist with their needs.
See NRS 616.535 as set forth and highlighted in majority opinion, footnote 2.
See majority opinion, footnote 3.
I must assume under the majority’s reasoning, that if Campbell had committed a crime resulting in a life sentence, he would have received compensation from the System indefinitely.