dissenting.
Respectfully, I must dissent. I do not believe that KRS 342.316(7) can withstand equal protection scrutiny. I can find no legitimate state interest, substantial or otherwise, for distinguishing between the two classes of after-born children. KRS 342.316(7) discriminates between after-born children born of a marriage in existence at the time the disability commenced, and after-born children who were not born of a marriage in existence at the time the disability commenced. While the statute does not discriminate among after-born children based upon the status of legitimacy, it does so on a far less tangible basis: the timing of the child’s birth. Both illegitimacy and the timing of birth are beyond the individual’s control and bear “no relation to the individual’s ability to participate in and contribute to society.” Mathews v. Lucas, 427 U.S. 495, 505, 96 S.Ct. 2755, 2762, 49 L.Ed.2d 651, 660 (1976). Consequently, the statutory classi*397fication is subject to the heightened scrutiny standard of review.
Steven Lee argues that the limitation on the payment of occupational disease benefits is a legitimate attempt on the part of the legislature to contain the number of persons to whom employers would be ha-ble for payment of continuation benefits. The General Assembly has a legitimate interest in limiting potential claims in order to preserve the integrity of the workers’ compensation system. Mullins v. Manning Coal Corp., Ky., 938 S.W.2d 260, 263 (1997). However, KRS 342.316(7) does not further the legitimate interest of limiting the liability of the employer or the Special Fund for payment of continuation benefits. Under KRS 342.750, the employer or the Special Fund may be liable for payment of continuation benefits to children who are not in existence at the time the award was made.
KRS 342.316(7) arbitrarily discriminates between after-born children who are born of a marriage in existence at the time of the worker’s disability began and those who were not. The statute cuts off the right of certain after-born children from receiving continuation benefits from a deceased parent. Yet, in doing so, it does not further a legitimate state interest or base this distinction upon any rational or substantial bases. As a result, I would find that KRS 342.316(7) is unconstitutional as a violation of Samantha’s right to equal protection of the law.
LAMBERT, C.J., and WINTERSHIMER, J„ join this dissent.