A & K Coal Co. v. Blankenship , 708 S.W.2d 638 ( 1986 )

VANCE, Justice,

dissenting.

I respectfully dissent to that part of the opinion which holds that the attorney’s fee is a joint responsibility of the employer and the Special Fund. The statutory scheme now in effect is that the employer pays the entire amount of weekly payments until his total payments equal his total liability under the award. Thereafter, the Special Fund pays the entire amount of the remaining weeks of the award. K.R.S. 342.120(4), (5).

K.R.S. 342.320 provides:

“... The entire attorney’s fee in a lump sum shall be paid directly to the attorney of record, and the board in allowing or approving an attorney’s fee, as provided in this section, shall order the payment of same directly to the attorney, commuting sufficient of the final payments of compensation payable under the award to a lump sum for that purpose. phasis added.) (Em-

The final payments under the award in this case are the payments to be made by the Special Fund. The plain direction of the statute is that a sufficient number of these final payments be commuted in order to pay the attorney’s fee in a lump sum.

The fee is not paid by either the employer or the Special Fund but out of funds that would otherwise go to the claimant. Since the fee is to be paid by reducing the number of weekly payments the claimant will receive, it would seem to matter little whether the commuted payments come from those to be paid by the employer or the Special Fund.

I see no reason, therefore, not to pay the attorney’s fee by commuting the final payments of the award as the statute prescribes.

GANT and STEPHENSON, JJ., join in this dissent.