dissenting.
I must respectfully dissent because I believe my colleagues have misconstrued Martinez v. Bucyrus-Erie Co., 113 Ariz. 119, 547 P.2d 473 (1976), and have erroneously vacated the trial court’s order thereby depriving respondent of a valuable right, which, if well founded, my brethren have given to the third party tortfeasor.
In Martinez, the Arizona Supreme Court held that the injured workman could not maintain an action against the third party tortfeasor because the claim had been statutorily assigned to the carrier. The court very clearly specified that “all of Martinez’ interest passed to the insurance carrier by *17operation of law . . The court stated that A.R.S. Sec. 23-1023(B),
“simply provides who has the right to pursue the claim.” (Emphasis in original)
The claim, of course, includes all items of damages sustained by the injured workman — even damages above and beyond the compensation benefits which the carrier is entitled to recoup. The cause of action thus remains intact; and splitting is avoided.
Legal title to the claim, i.e., the right to pursue the claim, passes by operation of law, but the beneficial interest in damages above the amount necessary to repay the carrier remains with the injured workman because the carrier cannot be permitted to profit from the workman’s injuries.1 Nor is the tortfeasor entitled to a gratuity in the form of a diminution of the claim or a shortened statute of limitations. The Act is primarily for the benefit of the injured worker and secondarily for the benefit of the employer. The Act “confers no rights on such third parties.” State ex rel. Industrial Commission v. Pressley, 74 Ariz. 412, 418, 250 P.2d 992 (1952). Also see Henshaw v. Mayes, 20 Ariz.App. 300, 512 P.2d 604 (1973), cited in Martinez, supra, recognizing the validity of a reassignment to the workman and noting that the reason most generally given for disallowing assignment of tort actions for personal injuries did not exist when the reassignment was to the “very party who experienced the pain and suffering.”
In Martinez v. Bucyrus-Erie, supra, the workman brought the suit solely in his own name and did not sue on behalf of the carrier. In the situation before us the respondent-plaintiff in bringing the action for the benefit of the carrier has fully protected the carrier who will recover any amount of benefits paid to the injured workman before he receives any share of the recovery. The workman is also protected in that he will receive any excess not paid to the carrier. The third party tortfeasor is subjected to the same amount of liability for the same length of time to which any other tortfeasor would be exposed. He defends only one lawsuit and is not prejudiced.
In Martinez, our Supreme Court looked to Kansas, noting similarities with our statutes, citing Erb v. Atchison, Topeka & Santa Fe Railway Co., 180 Kan. 60, 299 P.2d 35 (1956), where the Kansas Supreme Court held that an injured workman could not maintain an action solely in his own name after the cause of action had been statutorily assigned to the employer. I find the Kansas cases persuasive and see the procedure followed by the plaintiff in the case before us has been approved in that jurisdiction. Houk v. Arrow Drilling Co., 201 Kan. 81, 439 P.2d 146 (1968); Lady v. Ketchum, 186 Kan. 614, 352 P.2d 21 (1960). Also see Klein v. Wells, 194 Kan. 528, 400 P.2d 1002 (1965).
Respondent would seem to come within the language of Rule 19(a), Arizona Rules of Civil Procedure, as an indispensable party to this action. In any event, he would surely qualify as a permissive party under Rule 20(a). I believe the procedure followed by respondent was proper and that the trial court was correct in permitting it.
. Industrial Commission v. Nevelle, 58 Ariz. 325, 119 P.2d 934 (1941), held the statutes made no provision for the carrier collecting such excess and remitting it to the injured workman. It follows the workman must intervene if his interest is to be preserved.