joined by RABINO WITZ, C.J., dissenting in part.
I agree that the forfeiture provision of AS 23.30.015(h) should only apply to the extent that the third-party medical mal*783practice claim and the workers’ compensation claim overlap. However, I do not believe that the claimant should be allowed to escape application of the forfeiture clause to an overlapping claim on the grounds that the third-party defendant was not negligent. Under AS 23.30.015(h) a claimant who has compromised with a third-party defendant without the written approval of the employer cannot escape forfeiture of the claim against the employer on the grounds that the third-party defendant was not negligent. It seems inconsistent, therefore, to permit Forest to avoid a forfeiture of that portion of his claim against the employer which overlaps his third-party claim on the grounds that Dr. Joosse, the third-party defendant, was not negligent.
Under the majority opinion there are two issues on remand: (1) what is the value of that portion of Forest’s total claim against Safeway which was aggravated by Dr. Joosse’s treatment; and (2) was Dr. Joosse’s treatment negligent? Forest can win the case on remand in two ways under the majority opinion. He may establish that Dr. Joosse’s treatment did not aggravate his injuries, or he may establish that Dr. Joosse’s treatment was not negligent, although it may have aggravated his injuries. In the typical third-party claim where a claimant’s injuries are concurrently caused by a third-party defendant and the claim is compromised without the written approval of the employer, it is never a defense to forfeiture that the third-party defendant was not negligent. Thus, I think the majority has gone too far by allowing Forest to escape liability on the ground that Dr. Joosse’s treatment was not negligent. I would limit the inquiry on remand solely to the first issue noted above, the extent to which Dr. Joosse’s treatment aggravated Forest’s condition.