dissenting.
I must respectfully dissent from the opinion adopted by the majority. The employee is now totally disabled. Twenty percent of his occupational disability was a prior active disability, 40% of the disability was caused by a work-connected injury, and 40% was the result of the arousal of a dormant non-disabling disease or condition into disabling reality. The net effect of the opinion is that an employer is required to pay 50% of the total award when the work-connected injury caused only 40% of the disability. The employer ends up paying an award for disability which existed before the employment.
One of the primary purposes behind the creation of the Special Fund was to encourage the employment of partially disabled people. Employers were loathe to employ or retain in their employment, a partially disabled person for fear that a subsequent injury would cause total disability and subject the employer to increased workers’ compensation liability. 2 Larson, Workmen’s Compensation Law, “Purpose of Second Injury Funds”, § 59.31(a).
The creation of subsequent injury compensation protected the employer from paying more compensation benefits than the percentage of the disability caused by the work-related injury alone. The percentage of occupational disability which existed pri- or to the subsequent injury was noncom-pensable (K.R.S. 342.120(4)) and the remaining percentage fell upon the Special Fund. Young v. Fulkerson, Ky., 463 S.W.2d 118 (1971).
In 1978 the general assembly enacted K.R.S. 342.120(5) and K.R.S. 342.620(20) which relate to the computation of income benefits and the apportionment between the employer and the Special Fund. These enactments did not expressly repeal K.R.S. 342.120(4) which excluded an award for preexisting disability. This opinion negates K.R.S. 342.120(4) upon the basis that the passage of the two 1978 amendments indicated an intent of the legislature to do so, not expressly but by implication.
I find no basis for an implied legislative intent to repeal K.R.S. 342.120(4) by the enactment of the 1978 amendments. My conclusion is reinforced by the fact that subsequent legislation has made it clear once again that an employer shall not be assessed for a greater proportion of an award than the percentage of occupational disability caused by the subsequent injury.
*80When considered in the light of the beneficial purpose for which subsequent injury legislation was enacted, the 1978 amendments do not compel, and in my judgment do not permit, the construction given them by this opinion. The result is an immediate benefit for this one claimant, but employers will be warned that if they employ the partially disabled or handicapped or retain them in their employment, they run the risk of increased workers’ compensation liability in the event of a subsequent injury above that which would have occurred if they had excluded partially disabled persons from employment. The tendency would be to refuse to hire any more crippled, disabled, or handicapped people and perhaps to fire any such people already employed. This is a high price to exact from partially disabled workers just to extend additional compensation to this claimant, especially where this result is not specifically mandated.
As the opinion points out, legislation enacted in 1982 completely overturns the result of this opinion for the future, but those employers saddled with awards between 1978 and 1982 and bound by this opinion may well continue to be “once bitten, ever wary.”