dissenting in part.
I agree with the majority opinion except for its determination of when Bohle’s future benefit entitlements “will exceed the net amount received by [Bohle] from the third party.” Contrary to the majority’s assertion, I believe that reinstating the Commission’s order will result in a substantial windfall to Bohle.
If Bohle continues to be entitled to compensation and payment of medical expenses and those sums exceed the gross sum of $585,455 (Bohle’s share of the gross settlement), the employer Board should receive a credit of $820,089 from Bohle. This sum represents 74.55% of the gross settlement of $1.1 million, or $279,911 less than the total settlement. The total amount of attorney’s fees and litigation costs incurred in obtaining the settlement was $279,911. However, since the employer has thus far received $383,601, and will receive only an additional $318,399 under the majority’s ruling, the employer’s credit from Bohle will be only $702,000, a shortfall of $106,133 after Bohle’s child care payment has been deducted.
The following is a computation of the distribution of the settlement rounded off to the nearest dollar. I agree that the employer waived its objection to the distribution of $11,956 for child care. Recognizing that this amount must be added to the trial court’s *38computation of Bohle’s net settlement, and cannot be charged as a part thereof, I treat Bohle’s net recovery as $436,488 ($11,956 plus the net settlement as stated in the trial court, $424,532) in the following computation:
Gross Settlement $1,100,000
Employer’s, gross reimbursement for amounts paid for Bohle’s benefit $514,545
Employer’s proportionate cost of collection $130,944
Employer’s net collection $383,601
Bohle’s share of the settlement $585,455
Bohle’s proportionate cost of collection $148,967
Bohle’s net recovery $436,488
Totals $1,100,000 $1,100,000 $1,100,000
One objective in distributing a settlement from a third party tort-feasor between an injured worker and the employer is to fairly allocate the costs of collecting the settlement between the worker and the employer, prorated between them on the gross recoveries each receives from the settlement. However, in deciding when the employer resumes liability for payment of further compensation and medical expenses to Bohle, the majority makes what I think is a mathematical error.
The majority states correctly that
once the employee’s net third-party recovery is determined, the employee will be entitled to payment of no further compensation or medical expenses subsequent to the date fixed in the suspension order until the employee can establish that further benefit entitlements exceed the net amount réceived by the employee from the third party recovery.
(Emphasis added.)
*39As the burden of the financial responsibility for Bohle’s continued disability shifts between Bohle and her employer, the majority recognizes that the employer should bear the costs of collecting the gross amounts Bohle received in settlement; in effect, the burden of the costs of collection shifts between the two of them because Bohle assumed what would have been the employer’s burden of paying had it not been for the settlement. However, in deciding the amount of Bohle’s net recovery, the majority, following the Commission, has made the error of netting Bohle’s net recovery again, thereby reducing Bohle’s net recovery from $424,532 to $318,399. The difference between Bohle’s net recovery of $424,532 and her net-net recovery of $318,399 is $106,133. This amount is 25% of $424,532, Bohle’s net recovery. Thus, the majority has in effect credited Bohle twice for her share of the amount paid for attorney’s fees.
This additional credit will result in a $106,133 windfall to Bohle, assuming that she continues to be disabled, because the employer will be required to resume payment of compensation and medical expenses before Bohle discharges her burden of assuming those payments from her net recovery. This windfall is shown in the following computation:
Gross settlement $1,100,000
Employer’s cost of collection $279,911
Employer’s net recovery* $702,000
Child care $11,956
Bohle’s windfall $106,133
Bohle’s net recovery $424,532
Less: Bohle’s net net recovery $318,399
Totals $106,133 $1,100,000 $1,100,000
*40Had the employer expended exactly $1.1 million on Bohle’s behalf at the date of the settlement, it unquestionably would have been entitled to Bohle’s entire net recovery of $820,089 at that time. The end result should be no different simply because those funds will be expended in the future.
Using the “pay-as-you-go” approach adopted by the Court of Appeals, the employer Board should continue to pay its pro rata share of expenses until Bohle’s whole net recovery is exhausted. The employer would then begin making payments in full again.
Accordingly, I would hold that Bohle will not be entitled to payment of further compensation and medical expenses until she has expended the sum of $424,532.41 by assuming the burden of approximately 75% of those amounts the employer would have paid on her behalf, had there been no settlement, with the employer paying the other 25% of those amounts.
This amount is the sum of the amount already paid to the employer, $383,601, and the maximum amount it will collect from Bohle’s net settlement under the Commission’s order, $318,399.