Transport Motor Express, Inc. v. Finn , 1977 Ky. App. LEXIS 959 ( 1977 )

VANCE, Judge,

concurring.

I concur in the result reached in this case. I fully agree with the concurring opinion of Judge Park that lost wages are used only to determine the percentage of occupational disability.

I do not agree with the conclusion of the majority expressed in step 1(b) that prior disability is never used except to determine the percentage of disability attributable to the employer and to the special fund.

It seems plain to me that the special fund is liable only for that percentage of disability by which the combined effects of injury and aggravation exceed the disability attributable to the injury alone. Disability attributable to the prior injury is excluded. KRS 342.120(4).

The result reached in the majority opinion is correct only because of the holding in C.E. Pennington Co., Inc. v. Winbum, Ky., 537 S.W.2d 167 (1976) that permits a partially disabled worker to receive the maximum compensation benefits in some cases. Except for that decision, I would limit the award in this case to $42.00 per week. Yocom v. Layne, Ky., 553 S.W.2d 52 (1977) recognizes that there should be deducted from the award a sum equal to the percentage of disability attributable to a prior disability.