The opinion
DOYLE, Judge,
dissenting.
Respectfully, I dissent.
The only authority the majority cites for the proposition that claimant’s status as an escapee should preclude him from receiving worker’s compensation benefits is that to allow such a result “shocks the conscience.” In my view, that is simply not authority, and denying a claimant benefits on those grounds frustrates the clear intent of the Workers’ Compensation Act. 1
Even the majority must allow that under a strict causation analysis claimant would be entitled to benefits. Phrased differently, the majority admits that if we follow Section 301(a) of the Workers’ Compensation Act, which contains a causation requirement that has been judicially determined to mean that a violation of the law must be the proximate *610 or legal cause of the injury, 2 claimant should prevail here. Yet, he is denied benefits. 3
Further, the majority fails to acknowledge that claimant can be punished for his escape. That punishment, however, is, and properly should be, confined to the criminal justice system. In short, it is not the function of the Workers’ Compensation Act to punish criminals; 4 the public’s remedy for claimant’s escape is in Section 5121 of the Crimes Code, 18 Pa.C.S. § 5121, making an escape either a felony of the third degree, punishable by up to seven years imprisonment, 5 or a misdemeanor of the second degree, punishable by up to two years of imprisonment. 6
Further, I am deeply troubled by the constitutional ramifications of the majority’s position. Our United States Supreme Court has recently held that double jeopardy can apply in the context of an administrative proceeding where the action taken appears to be an additional punishment for criminal conduct. Department of Revenue of Montana v. Kurth Ranch, 511 U.S. -, 114 S.Ct. 1937 , 128 L.Ed.2d 767 (1994). In Kurth, members of the Kurth family were arrested after their farm was raided and marijuana plants were discovered there. The plants were later confiscated and destroyed. Thereafter, in a separate tax proceeding, state authorities attempted to collect a tax for the possession and storage of dangerous drugs. The tax could be collected only after all state or federal fines or forfeitures were satisfied. The Kurths argued successfully in a bankruptcy court proceeding that the Montana state tax, part of which was eight times the product’s fair market value, was a form of double jeopardy. The circuit court and the United States Supreme Court agreed. In addition to the tax’s high rate and deterrent purpose, neither of which alone was determined to render the state tax constitutionally infirm, the High Court was also influenced, inter alia, by the fact that the imposition of the tax was conditioned upon a crime and was exacted only after arrest for the identical conduct which gave rise to the tax obligation initially. In this instance, the act of employing the Workers’ Compensation Act to mete *611 out a penalty similarly results in a constitutional infirmity. The loss of worker’s compensation benefits to one whose injury prevents him from working is a “heavy tax.” The majority’s goal in construing the Act as it has is to deter escapes from prison but would apply presumably even to “escapees” from legitimate work-release programs. The “tax” here, i.e., the denial of compensation, is certainly predicated upon the criminal act inasmuch as any other worker who is injured in connection with his employment is entitled to benefits. These facts, in my view, are sufficient to establish a constitutional infirmity under Kurth.
In summary, I certainly do not condone the claimant’s act of escape, but I, nonetheless, cannot support the imposition of what is, in essence, a criminal sanction, when a mechanism already exists to punish claimant’s non-work related criminal act, and for worker’s compensation purposes is legally irrelevant.
. Act of June 2, 1915 P.L. 736, as amended, 77 P.S. § 431.
. See e.g., Kovalchick Salvage Co. Workmen’s Compensation Appeal Board (St. Clair (Admx.) Williams), 102 Pa.Cmwlth. 562 , 519 A.2d 543 (1986) (employee who was driving while legally intoxicated granted benefits because employer did not prove that intoxication caused claimant’s accident); Franks v. Workmen’s Compensation Appeal Board (SEPTA), 148 Pa.Cmwlth. 25 , 613 A.2d 36 (Cmwlth.1991), (employee who was injured while being arrested for theft of employer's bus fares granted benefits because injury occurred not while employee was stealing funds but while being arrested for stealing funds); Webber v. Borough of Midway, 205 Pa.Superior Ct. 464, 211 A.2d 45 (1965) (employee who was injured while doing work under an illegal contract with borough granted benefits because of illegality of contract was not cause of injury).
. The reasoning of the referee's decision, with which I strongly disagree, is found in the short but succinct discussion portion of the referee's opinion which I quote here verbatim:
DISCUSSION
The Referee cannot ignore the fact that the Claimant committed a violation of Law (a felony) when he escaped from prison and this violation of the Law continued until the Claimant was returned to prison in May of 1989. But for the fact of this continued violation of the Law the Claimant would not have had cause to be on the roof in question and obviously would not have fallen off the roof sustaining injury to his right foot and ankle. Therefore, it is apparent that the Claimant's violation of the Law is the cause of his right ankle injury which he sustained on March 10, 1989.
. I do note that Section 8 of the Act of July 2, 1993 P.L. 190 (Act 44), amended Section 306(a)(2) of the Workers' Compensation Act, 77 P.S. § 511 (2), by adding the following language: “Nothing in this act shall require payment of compensation for any period during which the employe is incarcerated after a conviction." This amendment has been held to permit an employer to cease paying benefits to an employee who is incarcerated even where the initial payment of benefits preceded the criminal act and resultant conviction. Banic v. Workmen’s Compensation Appeal Board (Trans-Bridge Lines, Inc.), 664 A.2d 1081 (Pa.Cmwlth.1995). Thus, trader the amendment, as construed in Banic , Claimant would not be entitled to benefits if, as a result of his escape, he were reincarcerated. His status, however, is dehors the record and, accordingly, will not be considered further, except to note the referee’s finding No. 9, which states: "On May 14, 1989, the Claimant was returned to prison. At this time [12-21-90], he is still in prison.”
. Section 1103(3) of the Crimes Code, 18 Pa.C.S. § 1103(3).
.Section 1104(2) of the Crimes Code, 18 Pa.C.S. § 1104(2).