dissenting.
Respectfully, I dissent.
Contrary to the intent of KRS 342.120, this opinion shifts responsibility to join the Special Fund entirely onto the employee.
Under this opinion there would NEVER be any incentive for an employer to join the Special Fund when evidence surfaces to argue arousal of a dormant condition, because an employer can now shift responsibility to the absent Special fund (the empty chair) with no response.
The employer should absorb disability caused by injury compounded by arousal of a dormant, nondisabling condition if the employer fails to join the Special Fund.
The Administrative Law Judge reached the proper result in the circumstances presented. We should reverse the Workers’ Compensation Board and the Court of Appeals, and affirm the award made by the Administrative Law Judge.