(dissenting).
I respectfully dissent. Although I applaud the majority’s effort to construct a rule that will provide the injured employee with an opportunity to be made whole, that effort seems to contravene the holding in Tyroll v. Private Label Chemicals, Inc., 505 N.W.2d 54, 59 (Minn.1993), and to ignore the compromise nature of the workers’ compensation law.
Tyroll, a Naig-type settlement case, limited the employer’s subrogation recovery to past and future wage loss and loss of earning capacity because:
We conclude that common law tort damages for past and future wage loss and loss of earning capacity are the kind of damages that should be deemed recoverable under workers’ compensation. Common law damages of the kind not recoverable under workers’ compensation should, we think, be deemed to include pain and suffering, general disability, embarrassment, disfigurement, and mental anguish.
Id.
The majority’s approach shifts the focus from a substantive rule of damages to procedures and parties. Thus, the substantive rule of loss of earning capacity as established in Tyroll changes, at least in application, depending on whether the case involves a Naig or a reverse-Naig settlement. I can conceive of neither logical basis nor legal principle to support such an approach.
I think the federal court in Van Gordon v. Beaver, 928 F.Supp. 858, 862-63 (D.Minn.1996), properly applied Tyroll in a reverse-Naig situation, holding that a plaintiffs action against a third-party tortfeasor
[ejncompasses two separate claims. The first involves an action against the tortfea-sor for those damages that are “non-recoverable” under Minnesota’s workers’ compensation law — namely, damages for “pain and suffering, general disability, embarrassment, disfigurement, and mental anguish.
* * * *
As a second component of the plaintiffs action, she is statutorily authorized to prosecute a claim, which includes her employer/insurer’s subrogation interest against the tortfeasor * * *. Quite logically, this latter claim is limited to those damages which are “recoverable” under the workers’ compensation laws — such as those for past and future medical expenses, past and future wage loss, and loss of future earning capacity.
Van Gordon, 928 F.Supp. at 862-63.
When the employer/insurer settles its sub-rogation interest with the third-party tortfea-sor, however, the plaintiff loses that component of her action against the tortfeasor.
Finally, both the trial court and the majority express concern that an injured employee might not be made whole under the limitations of the workers’ compensation system. Perhaps that is correct, but the concern fails to reflect an acknowledgement of the compromise nature of the system. Lambertson v. Cincinnati Corp., 312 Minn. 114, 120, 257 N.W.2d 679, 684 (1977), explained that in “exchange for guaranteed compensation for injury regardless of * * * fault * * ⅜ the employee is limited to a fixed schedule of recovery * * * .”
I would affirm.