(Concurring and Dissenting):
I dissent from that part of the majority opinion which requires the Second Injury Fund to reimburse the State Insurance Fund for part of the monies paid out by it under the settlement agreement of July 23, 1980. I agree that after Rhodes re-opened his claim and the medical panel found that part of his impairment was due to pre-exist-ing conditions, the Second Injury Fund should bear its proper proportion of compensation thereafter payable to Rhodes.
The Second Injury Fund was not a party to the settlement agreement which was entered into by Rhodes and the State Insurance Fund upon competent medical evidence then before them. I think it unfair and unsupported by the law that the Second Injury Fund can now be made to bear part of past payments since it did not participate in the making of the agreement and there was no medical evidence then available that it had any liability.
The cases cited by the majority in support of its position do not appear to me to be authority that reimbursement should be ordered under these circumstances. I have no quarrel with American Standard, Inc. v. Stephen, Ky.App., 565 S.W.2d 158 (1978) which permitted the Kentucky Special Fund to be joined in a re-opened claim for increased benefits. But there the Special Fund was not ordered to bear any part of the benefits already paid under the prior settlement to which it had not been a party. Likewise, in Subsequent Injury Trust Fund v. Alterman Foods, 162 Ga.App. 428, 291 S.E.2d 758 (1982) it does not appear that the Subsequent Injury Fund was required to reimburse the employer for any funds it had paid out pursuant to a settlement to which it had not been a party. The case holds that reimbursement could be sought against the Subsequent Injury Fund for monies paid out pursuant to an award but by statute the Fund was protected from the res judicata effect of the award to which it had not been a party. In Arduser v. Daniel International Corp., 7 Kan.App.2d 225, 640 P.2d 329 (1982) it appears in the statement of facts that the Kansas Workmen’s Compensation Fund was required to reimburse the employer and its insurance carrier for certain amounts but the question of reimbursement was not an issue in the case and is not discussed in the court’s opinion.
I do not agree with the majority that denying reimbursement will discourage settlements. The settling parties are well protected since any of them may, as here, re-open the claim when new medical evidence is found. The Second Injury Fund may then be brought in and made to bear its proportion of future payments.