dissenting.
Respectfully, I dissent. Although I agree with the majority that a totally disabled worker is entitled to be compensated for the whole of his disability and that each of these totally disabled workers is entitled to an award for total disability for the balance of his life, I believe that the same result may be accomplished by a somewhat different approach from that taken by the majority. Furthermore, I believe that this alternative approach is more in keeping with the principles of Chapter 342 and the decision in Brownies Creek v. Lingar, Ky.App., 794 S.W.2d 641 (1990), upon which the majority relies.
Where a compensable injury (or series of injuries) causes a worker to be partially disabled, and a subsequent compensable injury renders the worker totally, occupationally disabled, it should be of no moment whether the two claims are prosecuted together or separately. The workers’ compensation award for the prior injury should compensate the worker and impose liability on the defendants only for that which resulted — a partial disability. As such, compensation for the disability should be awarded for 425 weeks pursuant to KRS 342.730(l)(b). It is in the award for the injury which actually renders the worker totally, occupationally disabled, that the combined effect of the prior and final injuries should be considered, and it is from the date of that injury that the award for total, occupational disability, should run. Furthermore, treating the claims in this manner will produce consistent results regardless of whether the successive claims are prosecuted together or separately.
*29Neither of these workers was totally, occupationally disabled until the date of the final injury. Nonetheless, the majority states that it would award the workers lifetime benefits for both the prior and subsequent injuries. Such an award would impose upon the defendants who were liable for Campbell’s prior (1987) injury and Messer’s first back injury the liability for benefits at the rate and duration applicable to total disability even though the injuries resulted only in partial disability. The majority takes the view that such an award is proper because, subsequent to the aforementioned injuries, each of these workers sustained another injury which combined with their previous condition to render them totally disabled. Particularly in the case of successive employers or successive insurers, as is the case in Campbell, this amounts to the imposition of ex post facto liability and is unjustified. Furthermore, to award a worker greater benefits for an injury simply because the claim for that injury was prosecuted together with the claim for a subsequent injury or to award a worker benefits for total disability during a period before he actually is totally disabled amounts to a windfall. In fact, in Brownies Creek v. Lingar, supra, upon which the majority relies, the Board remanded the ease to the extent that the ALJ’s award of total disability for the period of time between the two injuries, when Lin-gar worked full-time, was contrary to the evidence. In that case, the Court of Appeals affirmed the Board.
I agree with the majority that where the last of a series of disabling injuries combines with the worker’s prior disability to render the worker totally, occupationally disabled, an award of total, occupational disability is authorized. KRS 342.120(6) provides that where the combined effect of a worker’s previous disability and a new injury results in a greater overall degree of disability than the latest injury, alone, would have caused, the employer is liable only for the percentage of disability attributable to the latest injury. Pursuant to KRS 342.120(7), that greater disability which results from the combined effect of the latest injury superimposed upon a previous disability, also known as “excess” disability, is apportioned to the Special Fund.
In Whittaker v. Messer and Natico v. Messer, the worker suffered two successive back injuries, with the first injury resulting in a 50% disability and the second injury resulting in permanent, total disability. In this case, the ALJ determined that the two injuries, by themselves, rendered the worker totally, occupationally disabled. Therefore, an award of 50% permanent, partial disability should be entered for the first injury. It was only after Messer’s second injury that he became totally disabled. Therefore, from the date of the second injury he should receive an award of total occupational disability, with an exclusion from the award equal to the permanent, partial disability benefits payable under the award for the first injury.
In Campbell v. Sextet Mining Company, the Administrative Law Judge (ALJ) determined that the worker “is presently 100% occupationally disabled.” The ALJ also determined that claimant had a 50% prior, active disability as a result of the 1973 and 1986 injuries and that, of the 50% of his disability that was compensable, 40% was attributable to the 1987 injury and 10% was attributable to the 1989 injury. The ALJ applied Young v. Fulkerson, Ky., 463 S.W.2d 118 (1971) and made the following additional findings:
a. The injuries of December 15, 1987 and August 24, 1989 would not have caused all of the Plaintiff’s occupational disability.
b. The extent of occupational disability attributable to the subject injuries alone is 25%. The employer owes this with Old Republic owing 20% and Underwriters owing [5%].
c. The degree of occupational disability which existed immediately prior to the work related injury without regard to its effect is 50%.
d. The amount of disability attributable to the arousal of a pre-existing dormant non-disabling disease or condition into disabling reality by the work related injuries is 25%. The Special Fund owes this.
On these facts, an award of 40% permanent, partial occupational disability should be entered for the 1987 injury in accordance with the ALJ’s finding that the injury resulted in a 40% occupational disability. Also in accordance with the ALJ’s findings, an award *30of total occupational disability should be entered from the date of the final injury, with an exclusion for the 50% prior, active disability and an exclusion equal to the permanent, partial disability benefits payable under the award for the 1987 injury.
FUQUA, J., joins in this dissenting opinion.