Relying upon subdivision 1 of section 29 of the Workers’ Compensation Law, Special Term ruled that where an injured employee (plaintiff William Castleberry) agrees to accept a certain sum by settlement of his personal injury action, the court could properly require the compensation insurance carrier (appellant here) to pay not only that portion of the attorneys’ fee (incurred in the pursuit of the tort action) attributable to the recovery of its lien, but in addition the amount of its potential compensation liability which was extinguished by the settlement. The court further determined that in doing so it was proper for it to estimate the value of the future liability of which the compensation carrier, Utica Mutual, was relieved. Contrary to the views of the majority, I agree with the conclusion of Special Term. However, for the reasons hereafter stated, I believe that it did not properly determine the present value of appellant’s future liability. Hence, while I agree that there should be a reversal, I would remit the matter to have that value properly fixed.
THE FACTS
On November 15, 1973 William Castleberry (hereafter plaintiff), who was then employed by the Howard Rice Trucking Company, slipped and fell from defendant Hudson Valley Asphalt Corporation’s (Hudson) platform. Appellant, Utica Mutual Insurance Company, provided compensation coverage for plaintiff’s employer. Pursuant to a Workers’ Compensation Board finding that plaintiff was injured in the course of his employment, Utica Mutual made compensation payments to plaintiff of $95 per week from November 15, 1973 to April 8, 1974, and $80 per week thereafter. Plaintiff commenced an action against defendant Hudson on April 17, 1974 to recover damages for his personal injuries.1 After a trial, the jury *240returned a verdict in favor of plaintiff William Castleberry for $54,415.30, and in favor of plaintiff Carol Castleberry for $5,000. On appeal, this court found reversible error and granted defendant a new trial (Castleberry v Hudson Val. Asphalt Co., 60 AD2d 878). Subsequent negotiations resulted in a contingent settlement of the action for $75,000.2 Plaintiff alleges that Utica Mutual refused to accede to his request to waive its statutory lien in order to facilitate settlement negotiations.3 In this connection it should be noted that Utica does not contend that the offer of $75,000 is inadequate so that is not an issue in this case.
THE DECISION OF SPECIAL TERM
Special Term in pertinent part said (97 Mise 2d 578, 579-581):
"This is an application pursuant to the provisions of subdivision 1 of section 29 of the Workers’ Compensation Law for an order apportioning 'the reasonable and necessary expenditures, including attorney’s fees,’ incurred by the plaintiff in effecting a recovery in this third-party action. * * *
"The only issue between this employee and the compensation carrier is the apportionment of the $25,000 attorney’s fees.
"Plaintiff suggests that Utica Mutual’s entire $20,402 lien be set aside as its portion of attorney’s fees and expenses incurred procuring this $75,000 settlement. Utica Mutual, which came close to obstructing plaintiff’s ability to recover a substantial verdict, acknowledges its obligation to pay one-third attorney’s fees based only on the amount of its lien for past compensation payments. * * *
*241"It is conceded by the carrier that based on plaintiffs life expectancy, the 'probable total amount’ of its compensation obligation calculated on weekly payments of $80 would exceed the amount of this settlement. If Utica Mutual had been forced to exercise its subrogation rights under subdivision 2 of section 29 after payment of attorney’s fees, it would have been entitled to estimate and deduct from the settlement, as a benefit to itself, the total amount of future periodic payments it owed to plaintiff. Subdivision 1 also provides that the estimated future compensation shall be 'deemed for the benefit of such * * * carrier.’
"As a practical matter in this case, the carrier’s future obligation to the plaintiff has been diminished, if not completely satisfied by this settlement agreement (Workers’ Compensation Law, § 29, subd 4). By virtue of the wording of the enactment itself, the respondent carrier is deemed benefited in an amount at least equal to the amount of the full settlement. Therefore, since the full amount of this settlement inures to the benefit of the carrier, it should bear the attorney’s fees for the full amount of the settlement.
"The carrier protests that such a result creates a windfall for the plaintiff, who it alleges will pay no attorney’s fees. However, it does not appear to this court that the plaintiff is receiving anything more than what he would have been entitled to in the future from the carrier if he had not commenced this action. The suggestion that an injured employee should pay attorney’s fees on a settlement which he had procured and which is deemed by statute totally for the benefit of the compensation carrier is rejected by the court.
"It would be an inequitable anomaly if subdivision 1 of section 29 is interpreted so as to place the burden on an employee for attorney’s fees due on amounts deemed recovered by him for the benefit of a compensation carrier when subdivision 2 of the enactment explicitly authorizes a one-third deduction (presumably for attorney’s fees incurred by the compensation carrier) from any excess recovery obtained by the carrier for the benefit of the employee.
"Therefore, plaintiffs motion is granted to the extent that the court apportions all attorney’s fees against the respondent and accordingly vacates the entire amount of its lien.” (Emphasis supplied.)
*242THE LAW
I
Utica Mutual argues that the "proper and sole relief’ authorized by subdivision 1 of section 29 of the Workers’ Compensation Law on an application to apportion the legal expenses of plaintiffs third-party action is to charge it with a portion of the fee in the same ratio that its lien bears to the total recovery. Plaintiff responds that Utica Mutual’s portion of the fee may, in the court’s discretion, be based on a ratio made up of the lien plus estimated future compensation payments which would necessarily have been paid by it but for the settlement.
Subdivision 1 of section 29 provides, in pertinent part: "[In an action brought by an injured employee against another not in the same employ (a 'third-party’ action) the] insurance carrier liable for the payment of such compensation * * * shall have a lien on the proceeds of any recovery from such other, whether by judgment, settlement or otherwise, after the deduction of the reasonable and necessary expenditures, including attorney’s fees, incurred in effecting such recovery, to the extent of the total amount of compensation awarded under or provided or estimated by this chapter for such case and the expenses for medical treatment paid or to be paid by it and to such extent such recovery shall be deemed for the benefit of such fund, person, association, corporation or carrier. Should the employee or his dependents secure a recovery from such other, whether by judgment, settlement or otherwise, such employee or dependents may apply on notice to such lienor to the court in which the third party action was instituted, or to a court of competent jurisdiction if no action was instituted, for an order apportioning the reasonable and necessary expenditures, including attorneys’ fees, incurred in effecting such recovery. Such expenditures shall be equitably apportioned by the court between the employee or his dependents and the lienor.” The last two sentences quoted above were added by amendment effective June 10, 1975 (L 1975, ch 190). Becker v Huss Co. (43 NY2d 527), decided in February, 1978, provides a review of the history of section 29. The opinion, in pertinent part, reads (pp 537-539, 543, 544):
"Section 29 of the Workmen’s Compensation Law governs the rights and liabilities of employee-claimants and their employers where injury is caused by a third party. Prior to *2431937, the employee or his dependents were forced to elect between compensation benefits and a third-party action (see L 1913, ch 816, § 29; Matter of Curtin v City of New York, 287 NY 338, 340). If compensation were chosen, the cause of action against the third party was assigned, by operation of law, to the compensation carrier (see L 1913, ch 816, § 29). If, on the other hand, a third-party action was pursued by the employee, unless the recovery was less than the compensation benefits, the claim to compensation was lost (id.).
"With a 1937 amendment, however, the Legislature abolished the forced election, giving the employee or his dependents the right to collect compensation benefits without relinquishing the right to a third-party action (§ 29, subd 1, as amd by L 1937, ch 684). But to avoid a double satisfaction, and continuing the concept that the carrier’s obligation should be diminished when damages are recovered from a third party, the carrier’s lien was introduced (id., Matter of Curtin v City of New York, 287 NY 338, 342-343, supra). Subject only to 'deduction of the reasonable and necessary expenditures, including attorney’s fees, incurred in effecting [the third-party] recovery’, the carrier has a 'lien on the proceeds of any recovery’, from a third party 'to the extent of the total amount of compensation awarded’ (§ 29, subd 1). If, however, after a prescribed time period the employee or his dependents fail to pursue the remedy against the third party the employer or his carrier is, as under the earlier statute, subrogated to the claim (id., subd 2). Should the carrier then recover more than the compensation paid plus the expenses incurred, two thirds of that excess must be turned over to the employee or his dependents (id.).
"Despite its liberalizing changes the 1937 amendment still proved unsatisfactory. Where an employee recovered from a third party, once the attorney’s lien was satisfied the carrier received the full amount of its lien without contributing to the litigation expenses, including the lawyer’s fees. In short, the carrier benefited from a fund without having shared the burden of creating it. Yet, when the third-party action was brought by the carrier, not only did the carrier’s and attorney’s liens again receive priority over the employee, but the employee received only two thirds of the excess. Also problematic were modest third-party recoveries. Discharge of the lien of the attorney and carrier meant that little of the fund, if any, was left for the employee. (See Recommendation of the *244Law Revision Commission, McKinney’s 1975 Session Laws of NY, p 1552.)
"These inequities prompted widespread criticism, some litigation, and ultimately, legislative correction (see Koutrakos v Long Is. Coll. Hosp., 47 AD2d 500, 506, affd 39 NY2d 1026; Kussack v Ring Constr. Corp., 1 AD2d 634, 635, affd 4 NY2d 1011). The Law Revision Commission had repeatedly recommended that the carrier share responsibility for the litigation expenses, including lawyer’s fees, incurred by the employee (see, e.g., Recommendation of the Law Revision Commission, McKinney’s 1975 Session Laws of NY, pp 1551-1554, NY Legis Doc, 1975, No. 65[F]; McKinney’s 1974 Session Laws of NY, vol 2, pp 1904-1907, NY Legis Doc, 1974, No. 65[F]; McKinney’s 1971 Session Laws of NY, vol 2, pp 2333-2335, NY Legis Doc, 1971, No. 65[B]). Eventually, the 1975 statute was enacted * * * Thus, New York joined the increasing number of States favoring apportionment (see Recommendation of the Law Revision Commission, McKinney’s 1975 Session Laws of NY, p 1553; 2A Larson, Workmen’s Compensation Law, § 74.32, esp pp 14-232—14-233, and n 56 [1976 & 1977 Supp]; Workmen’s Compensation—Tort Suit Expenses, Ann., 74 ALR3d 854, pp 863-866). * * *
"As to how the lienor’s share of the expenses should be calculated, extended discussion is not required. The statute is explicit: 'expenditures shall be equitably apportioned’ (§ 29, subd 1). If that were not enough, the Law Revision Commission concluded that an equitable apportionment was more practical and flexible than a rigid statutory formula (see Report of the Law Revision Commission, McKinney’s 1975 Session Laws of NY, p 1553). It does not follow, however, that standardized fees in personal injury cases should be ignored or that, except in the rare case, the lawyer’s fees should be determined on quantum meruit. That would be unrealistic. Instead, so long as the court weighs variable and distinguishing factors, which might suggest departure from the retainer or standardized fees set by local custom or court rule, standardized fees may be used. Such factors might include the reasonableness of the lawyer’s retainer and whether it was improperly influenced by the expectation that the lienor would be sharing in the burden of that fee, the fact that recovery was unusually simple or liability especially clear, and any other equitable circumstances. The practical advan*245tage in limiting or even eliminating hearings on the application is evident. * * *
"The ultimate determination of the equitable apportionment of legal expenses, both for jurisdictional and practical reasons, resides in the courts vested with the powers of fact finding and the exercise of a sound discretion. Only principles involving questions of law would remain subject to review as questions of law. Hence, it will be the unusual case in which review beyond the Appellate Division would be useful or available. (Cohen and Karger, Powers of the New York Court of Appeals [rev ed], §§ 145, 148.)”
Appellant, Utica Mutual, contends that the "rule” followed in New York since the 1975 amendment has been to require the compensation carrier to pay only that portion of fees and expenses attributable to the recovery of its lien amount. Appellant cites Sysler v Helms Express (NYLJ, Feb. 19, 1976, p 7, col 2), Rice v Bankers Trust Co. (83 MisC 2d 797), Greenough v Deblinger (84 Misc 2d 463), Wargo v Longo (85 Misc 2d 898), Cardillo v Long Is. Coll. Hosp. (86 Misc 2d 438) and Cohen v Grant (87 Misc 2d 780, affd 93 Misc 2d 824). While it is true that in those cases the court applied the formula advocated by appellant the main issue involved in most of those cases was whether to apply the 1975 amendment retroactively (the principal issue decided in Becker v Huss Co., 43 NY2d 527, supra). Moreover, the cases do not provide any reasoning or explication for the conclusion reached. Apparently, the ratio decidendi for their conclusion is that the injured employee, by his recovery in the third-party suit, has "collected” the lien of the compensation carrier and that, therefore, the carrier should be required to pay the attorney’s fee for that service. (See Koutrakos v Long Is. Coll. Hosp., 78 Misc 2d 39, 40, mod 47 AD2d 500, affd 39 NY2d 1026.)4
*246Utica Mutual also argues that the language of the amendment itself supports the view that its share of the attorney’s fees should be based solely on the existing lien without regard to the benefit it is obtaining by having its liability for future compensation payments entirely extinguished. It points to the words of the statute that the fee should be "apportioned” between the employee and the carrier. That language, appellant argues, is inconsistent with assessing the entire fee against it as Special Term did here.5 Appellant’s contention lacks merit for it fails to realize that the method used by Special Term will not inevitably result in an allocation of the entire legal expense to the carrier. Thus, if the employee’s recovery exceeds the sum of the lien plus the estimated liability of the carrier extinguished by the recovery, then, under the procedure employed by Special Term, the employee must pay the attorney’s fees on the excess. Here, because there was no such excess, it assessed Utica Mutual with the entire legal fee to the extent of canceling its lien.
*247I believe that the 1975 amendment sanctions the method used by the Special Term. However, neither the plaintiff employee nor Special Term clearly articulated the strongest argument in favor of an apportionment based on the lien plus the estimated potential liability of the carrier; to wit, that the employee’s recovery, which takes the place of his compensation award, should not be diluted by the extra expense of legal fees. If the plaintiff had failed to bring a third-party action, but instead had simply continued collecting his weekly compensation check, he could not be required to pay attorney’s fees in order to receive that money. The Legislature therefore could not have intended that where an employee effects a recovery in a third-party action which essentially replaces his right to collect weekly benefits, that the employee should pay attorney’s fees on the recovered amount. Rather, the employee should have the right to that amount without paying attorney’s fees, insofar as the recovery does not exceed the benefits paid to the employee to date plus the estimated future liability of the carrier. To hold otherwise would mean that the employee’s statutorily guaranteed compensation is reduced in the amount of the fees he is required to pay to effect his recovery.
The legislative history of the 1975 amendment, so far as it can be ascertained, does not settle the issue. The Recommendation of the Law Revision Commission (McKinney’s 1975 Session Laws of NY, pp 1551, 1554, NY Legis Doc, 1975, No. 65[F]), points to the unfairness of the unamended statute under which the employee was required to pay all the fees incurred by his recovery (by virtue of the prior compensation lien). The language of the recommendation indicates that the chief inequity which the commission wanted corrected was the carrier’s recovery of its lien without paying fees: "It was [the employee’s] lawyer’s efforts that brought about the recovery out of which the carrier’s subrogation lien is being paid in full, and yet the carrier is not making any contribution toward the legal expenses” (McKinney’s 1975 Session Laws of NY, p 1552). However, the commission was apparently aware that some States require the carrier to pay attorney’s fees based on the amount of compensation actually paid out by the carrier plus its estimated potential liability (see McKinney’s 1975 Session Laws of NY, p 1553, recognizing that, at that time, 12 States by statute allowed apportionment of fees and that the courts in some of those States have reached the issue *248here presented and decided it in favor of the employee, as will be discussed infra; Atleson, Workmen’s Compensation: Third Party Actions and the Apportionment of Attorney’s Fees, 19 Buffalo L Rev 515, written by the author of a study on the subject made for the Law Revision Commission). The latter article recognizes that some States allocate fees to the insurer based on its lien and estimated potential liability and states that "it seems equitable for the employer to bear part of the cost of securing this benefit” (id., at p 533). To me it seems clear that at the very least, the commission intended that the courts be empowered to go beyond charging a fee based solely upon the lien because the amendment it recommended (which was subsequently adopted) refrains from using the existing lien as the maximum base for fees.
Becker v Huss Co. (43 NY2d 527, supra) also does not directly address the issue posed by our case. The Court of Appeals’ discussion of apportionment mainly reflects its concern over the dangers inherent in requiring the carrier to pay for the services of a lawyer it did not hire. Because appellant does not contest the reasonableness of the $25,000 fee, that is not an issue on this appeal.
Almost all States which have considered the question before us have resolved it by charging the insurer for the expenses incurred in the recovery of its lien and the extinguishment of its estimated future liability. (See Workmen’s Compensation— Tort Suit Expenses, Ann. 74 ALR3d 854, § 8, pp 886-893 ["Measure of employer’s (Insurer’s) pro-rata share”]; 2A Larson, Workmen’s Compensation Law, § 74.32, and the cases and statutes collected at n 56.) A brief review of some of those cases follows. Indiana: Indiana State Highway Comm. v White (259 Ind 690; statute read "Out of any reimbursement received by the * * * compensation insurance carrier * * * they shall pay their pro rata share of all costs and reasonably necessary expenses in connection with such third party claim”). Kentucky: Security Ins. Co. of Hartford v Norris (439 SW2d 68; worker’s compensation statute did not provide for sharing of costs of third-party recovery; decision to require sharing to extent that carrier benefits from recovery based on "principles of equity, fairness and justice”). Michigan: Crawley v Schick (48 Mich App 728) and Schalk v Michigan Sewer Constr. Co. (62 Mich App 658; statute read: "Expenses of recovery shall be apportioned by the court between the parties as their interests appear at the time of the recovery”). Minne*249sota: Quarberg v Laundry Store Sales (269 Minn 213; statute read: "the employer [insurer] shall bear that proportion of the * * * attorney’s fees * * * incurred in making collection from and enforcing liability against the [third] party * * * which the amount claimed by the employer for deduction from, or to be retained against, compensation payable bears to the whole amount recovered from such other party”). Nebraska: Gillotte v Omaha Public Power Dist. (189 Neb 444; statute read: "attorney’s fees shall be apportioned by the court between the parties as their interests appear at the time of such recovery”). New Jersey: Caputo v Best Foods (17 NJ 259; statute made insurer liable for the employee’s attorney’s fees which was defined as including those fees not in excess of one third of the sum paid in release or in judgment to the injured employee by such third person to which the insurance carrier shall be entitled in reimbursement. "Reimbursement” included the potential liability of the insurer ended by the recovery). Pennsylvania: Wall v Conn Welding & Mach. Co. (197 Pa Super Ct 360; statute read: "the [insurer] shall pay that proportion of the attorney’s fees and other proper disbursements that the amount of compensation paid or payable at the time of recovery or settlement bears to the total recovery or settlement”). Utah: Prettyman v Utah State Dept. of Finance (27 Utah 2d 333; statute read: "the reasonable expense of the action, including attorneys’ fees, shall be paid and charged proportionately against the parties as their interests may appear”). Virginia: Sheris v Travelers Ins. Co. (491 F2d 603, cert den 419 US 831; statute read: "attorney’s fees * * * shall be apportioned pro rata between the [insurer] and the employee * * * as their respective interests may appear”). Contra: Missouri: Ruediger v Kallmeyer Bros. Serv. (501 SW2d 56; statute required apportionment of expenses "in the same ratio that the amount due the employer bears to the total amount recovered”. However, the court urged the Legislature to re-examine the statute because it was inequitable to the employee).
The cases above cited generally give the following reasons in support of their conclusions that the compensation carrier should pay attorney’s fees not only on its present lien but also on the future liability of which it has been relieved: (1) if the insurer need pay fees only on the lien, it has an incentive to delay the payment of compensation to the employee; public policy should not encourage delay in compensation payments; *250(2) if the insurer need only pay fees on the lien, the injured employee has an incentive (a) to unnecessarily prolong his lawsuit against the third party, thus accumulating more compensation payments, and (b) to petition the Workers’ Compensation Board for commutation of the periodical payments into a lump-sum payment pursuant to section 25 (subd 5, par [b]), prior to settlement or judgment in the third-party action; and (3) workers’ compensation laws are remedial legislation, and therefore, borderline interpretations of the law should be resolved in favor of those whom the legislation was intended to benefit.
I thus have come to the conclusion that Special Term was correct in holding that in a third-party action brought by an employee, an insurer may be required to pay attorney’s fees on its actual lien and on its potential liability which is extinguished by the settlement. The question nevertheless remains whether Special Term, by failing to adjust for the number or present value of the future payments which Utica Mutual need not pay, failed to equitably estimate the present value of the settlement to Utica Mutual.
Special Term stated (97 Misc 2d 578, 580, supra) that "[i]t is conceded by the carrier that based on plaintiff’s life expectancy, the 'probable total amount’ of its compensation obligation calculated on weekly payments of $80 would exceed the amount of this settlement.” That statement apparently refers to a stipulation between the parties made at trial that, since on May 27, 1977, plaintiff employee’s life expectancy was 20 years and his payments $80 per week, Utica Mutual’s liability would be more than $80,000. Because this sum alone (without regard to the amount of the lien as of May 27, 1977) exceeded the settlement total of $75,000, Special Term held Utica Mutual solely responsible for the entire attorney’s fee incurred in the third-party action.6 However, it seems clear that Utica Mutual does not obtain a present benefit of $80,000 from the settlement, but only the present value of the periodic payments which the settlement relieves it from making.
CONCLUSION
Special Term was correct in concluding that an equitable *251apportionment of fees must account for the fact that the employee’s recovery has diminished or ended the carrier’s liability for compensation payments. However, the court failed to calculate the number or present value of such payments, and instead simply added up all periodic payments over the assumed lifespan of the employee, thus overestimating the benefit of the settlement to the insurer.7
Section 25 (subd 5, par [b]) of the Workers’ Compensation Law contains the statutory device for such a calculation, for it permits the board to commute periodical payments into a lump-sum payment "in the interests of justice” in accordance with section 27 of the Workers’ Compensation Law, which provides for the calculation of present value.
The order appealed from should be therefore reversed and the matter remitted to Special Term for a determination of the number and present value of the future compensation payments which Utica Mutual is no longer obligated to pay by virtue of the settlement of the third-party action and to fix its fee liability accordingly.
Cohalan and Martuscello, JJ., concur with Margett, J.; Shapiro, J. P., concurs insofar as the majority has reversed the order, but otherwise dissents and votes to remit the matter to Special Term for a new determination as to the present value of appellant’s future liability, with an opinion.
Order of the Supreme Court, Orange County, dated January 15, 1979, reversed insofar as apealed from, on the law, with $50 costs and disbursements, appellant’s equitable share of attorneys’ fees is fixed at $6,801, and its lien shall be set off by that amount.
. Subdivision 1 of section 29 of the Workers’ Compensation Law states that an employee who is entitled to compensation need not elect whether to take compensation or pursue his remedy against a third-party tort-feasor, but may do both.
. Although the record on appeal is sparse, both parties seem to agree that the settlement was dependent upon the outcome of the instant motion. Plaintiffs’ attorneys say that the $75,000 settlement is "subject to the making of this application for equitable apportionment by the Court”. Appellant admits that now "[a]s it stands the plaintiff can choose to refuse the $75,000.00 settlement offer, from which a counsel fee would be deducted, and try his cause of action.” In footnote 1 of the majority opinion, Mr. Justice Margett states that "this court has ascertained for plaintiffs attorney that the third-party settlement has been finalized.” I can only assume that that means that the third party (Hudson) has paid over the proceeds of the settlement in escrow subject to the determination of this appeal. Hence, that fact would seem to have no bearing on the issue involved in this case.
. Section 29 of the Workers’ Compensation Law gives the compensation carrier a lien on the third-party judgment or settlement proceeds in the amount of the compensation actually paid to the injured employee.
. Appellant’s cases actually apply two different, but mathematically equivalent, formulas for calculating the carrier’s portion of the attorney’s fee. The first method is to multiply the total attorney’s fee by the ratio of the lien to the total recovery. The second method is to multiply the lien by the attorney’s contingent fee percentage. These methods are equivalent:
Let A = Lien
B = Recovery
C = Attorney’s fee
D = Attorney’s contingent fee percentage
X = Carrier’s portion of attorney’s fee
(N.B. D = C/B).
*246First method:
C. A = X B
Second method:
D . A = X
Substituting for D,
(C/b).A = X
Thus,
C . A = X B
. The insurer could also point to subdivision 2 of section 29 to support its argument that it should pay fees only on the lien. Subdivision 2 provides that if the employee fails to commence a suit against the third party within a certain period of time, this failure operates to assign the cause of action to the insurer. All costs of the action (i.e., attorney’s fees) are paid from any recovery. The insurer then receives a sum equal to the compensation awarded (which, when the award requires periodical payments, is estimated based on a mortality table and "such facts as [the board] may deem pertinent”). Any excess over the compensation amount is split two thirds to the employee and one third to the insurer. The contention could be made that subdivision 2 indicates a legislative intent to insulate insurers from the payment of attorney’s fees since payment of the costs of the third-party action from the recovery directly reduces the excess available to the employee while allowing the insurer an amount equal to the compensation it will have to pay without requiring any contribution for attorney’s fees. However, it is still true that the employee will not pay attorney’s fees on his periodical compensation payments, which he continues to receive whatever the disposition of the insurer’s third-party action. Looked at differently, the legal fees incurred in the insurer’s third-party action are not deducted from the compensation payments still owed to the employee.
. The fee amounted to $25,000. Special Term canceled the lien of $20,402, but did not assess Utica Mutual an additional $4,598 apparently because plaintiff requested cancellation and nothing more.
. It could be argued, as does the majority, that a further refinement of the measure of the benefit of recovery to the compensation carrier is possible by taking into account the possibility of future modification of the compensation award (see Workers’ Compensation Law, § 22, "Modification of awards, decisions or orders”). This would only be true, of course, if, historically, more awards were modified in one direction than in the other. I do not know whether such information is readily available, or whether it could be particularized, for instance, by type of injury. In any event, modification data would surely be less standardized and reliable than the present value or mortality tables. In the case at bar, there is no contention that the employee’s award would have been modified in the future.