dissenting:
I dissent.
The plaintiffs contend that the insurer is not entitled to 100 percent subrogation because the insurer did not participate in the third-party action. I disagree and would hold under 39-71-414, MCA, that there was sufficient showing of participation on the part of the insurer to entitle him to the 100 percent subrogation. See Tuttle v. Morrison-Knudson Co., Inc. (1978), 177 Mont. 166, 580 P.2d 1379, where this Court approved such a subrogation. The formula set forth in that case requires the insurer pay its proportionate share of the costs and attorney’s fees and that amount could be computed after settlement or judgment. An inherent problem in the formula is that it is impossible to compute the proportionate share of attorney’s fees and costs prior to settlement or judgment because the amount of the third-party recovery is unknown. I conclude the claimant may request the insurer advance all costs, including attorney’s fees, as they are incurred.
The Workers’ Compensation Act must be liberally con*110strued in favor of the claimant, section 39-71-104, MCA. If the claimant requests the insurer to advance costs, “the insurer may elect not to participate in the cost of the action. If this election is made, the insurer waives 50 percent of its subrogation rights granted by this section.” Section 39-71-414(2)(c), MCA.
The claimant’s contention that the insured is not entitled to 100 percent subrogation because it failed to participate actively in a third-party action is, in my opinion, without merit. On January 4, 1980, the insurer wrote to the claimant’s counsel stating: “we do wish to actively participate in the third-party action and thus protect our subrogation rights as per workers’ compensation law.” The insurer consistently held to this position and later offered to advance costs on a pro-rata basis if claimant’s counsel would furnish it with receipts with the actual cost expenditures. The claimant’s counsel did not furnish the insurer with the receipts for actual cost expenditures until the third-party action was settled and the amount proved to be far less than what counsel for the insured originally suggested. Here the Workers’ Compensation Court found the insured agreed to participate and is entitled to 100 percent subrogation. There is, in my opinion, substantial evidence to support the Workers’ Compensation Court’s finding, and this Court should have upheld those findings. See Pinion v. H. C. Smith Construction Co. (1980), Mont., 619 P.2d 167, 37 St.Rep. 1355; Head v. Missoula Service Company (1979), 181 Mont. 129, 592 P.2d 507.
There being substantial evidence to support the findings of the Compensation Court, I would uphold the findings of that court.
MR. JUSTICES GULBRANDSON and WEBER concur.