dissenting.
I must respectfully dissent. The Subsequent Injury Trust Fund was created by an Act of the Georgia General Assembly in 1977 to encourage the employment of handicapped persons by protecting em*639ployers from excess liability for compensation for certain injuries. Ga. L. 1977, pp. 608, 609; OCGA § 34-9-350. In creating the Fund, the General Assembly also expressly provided that the Fund would not be liable for certain costs, see Ga. L. 1977, p. 617 “Nonliability of fund for certain costs,” and it is that provision, OCGA § 34-9-367, that we are concerned with in this case. Contrary to the holding of the majority, I do not believe that the phrase “claiming parties” as used in that section refers only to the original claimant (the employee) for workers’ compensation benefits. The only “parties” who can “claim” under the Fund are employers or insurers. The only “parties” who can claim workers’ compensation benefits are employees. It seems to me that “claiming parties” refers to any person or entity claiming interest or attorney fees, whether they are an employee claiming under the provisions of the Workers’ Compensation Act or an employer or insurer claiming reimbursement under the Fund. This makes sense as a matter of statutory construction, inasmuch as the all-encompassing phrase “claiming parties” appears only in this section; in other sections, the parties are referred to as either the claimant, employee, employer or insurer. As for consideration of the legislative intent in drafting this provision, it seems to me an effort by the legislature to protect and preserve the Fund by simply providing that no attorney fees (or interest) are to be paid out of the Fund. I am thus in accordance with the superior court’s finding that the bar against the payment of attorney fees expressed in OCGA § 34-9-367 is absolute, and that, therefore, attorney fees incurred by an employer or insurer in pursuing its claim against the Fund are not assessable against the Fund. It follows that I would affirm, not reverse, the order of the superior court in this case.
Decided March 14, 1995 Lowendick, Speed & Donahue, Kenneth B. Donahue, for appellants. McNatt, Greene & Thompson, Richard S. Thompson, for appellee.I am authorized to state that Chief Judge Beasley and Judge Andrews join in this dissent.