dissenting.
Simply stated, the issue in this case is whether “the subrogation claim of the Workers’ Compensation Insurance Carrier” includes benefits “to be paid by the employer under award of the Industrial Commission” for purposes of determining, pursuant to N.C.G.S. § 97-10.2(j), whether the judgment obtained by the employee against a third-party tort-feasor is “insufficient” to compensate that claim. As I read the majority opinion, which reverses the superior court and the Court of Appeals, it holds that the subrogation claim includes only benefits already paid at the time of the judgment obtained by the employee against the tort-feasor and does not include any amounts *539“to be paid” by the employer under an award by the Industrial Commission.
Under N.C.G.S. § 97-10.2(j), if an employee obtains a judgment against a third-party tort-feasor “which is insufficient to compensate the subrogation claim” of the workers’ compensation carrier, the presiding superior court judge, upon application of either party, may determine the amount, if any, of the employer’s lien. What this means is that, notwithstanding the fact that the subrogation claim exceeds the amount of the judgment, the superior court may, in its discretion, set the lien at an amount that is less than the subrogation claim.
In the instant case, the presiding superior court judge determined, pursuant to his authority under N.C.G.S. § 97-10.2(j), that the judgment obtained by plaintiff was insufficient to compensate the subrogation claim and, in his discretion, reduced the subrogation amount, that is, “determine [d] . . . the amount... of the employer’s lien.” N.C.G.S. § 97-10.2Q) (1991). This comports with the purpose of subsection (j) which is to allow the injured employee to receive a portion of the recovery obtained in his lawsuit against the negligent third party. The Court of Appeals agreed that the superior court proceeded correctly under N.C.G.S. § 97-10.2(j), but remanded the case for further hearing and specific findings of fact. The majority now reverses the Court of Appeals, holding “that the trial court may not by this means assert its jurisdiction over the jurisdiction of the Industrial Commission.”
The majority relies on Hieb v. Lowery, 344 N.C. 403, 474 S.E.2d 323 (1996), to support the conclusion that plaintiff’s future benefits may not be included when ascertaining the amount of the workers’ compensation carrier’s claim for purposes of triggering N.C.G.S. § 97-10.2(j). Although I dissented in Hieb, I am bound by the decision of the Court in that case. However, I do not believe Hieb is controlling in the instant case. The relevant issue in Hieb was whether the word “judgment” in N.C.G.S. § 97-10.2(j) referred to the amount awarded by the trial court or to the proceeds actually available to satisfy the judgment. This Court settled the question by according judgment its “plain meaning,” holding that the jury verdict of over $1.2 million, as modified, constituted the judgment rather than the $475,000 in insurance proceeds that were actually available to satisfy the judgment.
In this case there is no dispute as to the amount of the judgment. Rather, we are called upon to determine what constitutes the work*540ers’ compensation carrier’s “subrogation claim.” The Workers’ Compensation Act, chapter 97 of the North Carolina General Statutes, does not define the term “subrogation claim.” However, where the employer has filed a written admission of liability for benefits or a final award has been entered by the Industrial Commission, the insurance carrier’s right to subrogation, authorized by N.C.G.S. § 97-10.2(g), is determined by the employer’s right, under N.C.G.S. § 97-10.2(f)(l)(c), to reimbursement “for all benefits ... paid or to be paid by the employer under award of the Industrial Commission.” N.C.G.S. § -97-10.2(f)(l)(c) (emphasis added). Therefore, to the extent that the workers’ compensation insurance carrier will pay benefits in the future, the carrier will have a “subrogation claim” for those payments against any amount obtained by settlement, judgment, or otherwise from a third-party tort-feasor. This claim entitles the insurance carrier to pursue its right to a lien “[i]n any proceeding against or settlement with the third party.” N.C.G.S. § 97-10.2(h).
The carrier’s right to subrogation does not cease to accrue at the precise moment that the judgment is obtained. Rather, it continues as to all benefits to be paid in the future by the employer under award of the Industrial Commission. It is therefore inequitable to deny the existence of that component of the subrogation claim when comparing it with the judgment for purposes of determining the judgment’s sufficiency under N.C.G.S. § 97-10.2(j). Because I conclude that the meaning of “subrogation claim” under N.C.G.S. § 97-10.2Q) includes amounts “to be paid” by the workers’ compensation carrier as well as those which have already been paid at the time the judgment is obtained, I must agree with the Court of Appeals that the trial court properly considered benefits “to be paid” in determining the insufficiency of the third-party judgment to compensate the subrogation claim. For this reason, I cannot join the majority opinion.
Justice Webb joins in this dissenting opinion.