join, dissenting.
I do not agree that a trial court, in apportioning attorney’s fees and expenses pursuant to former Code § 65.1-43, properly may base the employer’s share on its total exposure for workers’ compensation benefits. Rather, I believe that the employer’s compensation carrier should contribute only in proportion to the actual *190benefit it derives from the recovery, that is, the satisfaction of its lien.
The majority’s ruling allows a trial court to speculate upon the amount of total benefits to be paid by the employer and forces the employer to pay attorney’s fees for the discharge of future contingent liabilities that may never materialize, both contrary to the statutory scheme. Former Code § 65.1-42 (now § 65.2-310) provided that in any action by an employee’s personal representative against a third party the trial court “shall, on petition or motion of the employer . . . ascertain the amount of compensation paid and expenses . . . incurred by the employer . . . and deduct therefrom a proportionate share of such amounts as are paid by the plaintiff for reasonable expenses and attorney’s fees as provided in § 65.1-43. . . .” (Emphasis added.) Former Code § 65.1-43 provided for apportionment of such fees and expenses to be shared between the parties “as their respective interests may appear.” This phrase obviously refers to the language in § 65.1-42 requiring the court to determine the amount of compensation “paid” and the expenses “incurred” by the employer, not to compensation “to be paid” and expenses “to be incurred.”
The view adopted by the majority gives no consideration to the provisions of the Workers’ Compensation Act which serve to limit an employer’s liability to the dependents of a deceased employee. The right to benefits can be terminated by a beneficiary’s death, remarriage, or attaining the age of 18 years. Former Code § 65.1-69 (now § 65.2-517). Thus, an employer’s exposure is limited; a compensation award is not a guaranteed sum, the right to which becomes vested in a beneficiary.
Upon the second issue, I understand the majority to approve the assessment of potential future cost of living supplements, if there is evidence to support the factors set forth in former Code § 65.1-99.1 (now § 65.1-709). If that is the ruling, I disagree for the reasons stated in the discussion of the first issue.