¶ 54. {dissenting). As we celebrate the sesquicentennial of the statehood of Wisconsin and reflect upon the history of this state, I am reminded of the significant role that Wisconsin played in the development of worker's compensation law. Wisconsin pioneered the development of that law and was one of the first states in the nation to enact such legislation. This unique legislation represented a compromise between the worker and the employer. Because the majority's opinion changes the terms of that initial compromise, misinterprets case law and related statutory language, and arrives at an inequitable result, I respectfully dissent.
¶ 55. As the twentieth century began and industrial expansion accelerated, participants in the American workplace faced an ongoing question: who should bear the financial burden attendant upon the injury or death suffered by a worker in the course of employment? At that time the status quo answer was that the worker generally bore the burden. While the employer might occasionally be exposed to liability, it could often escape, or at least significantly delay, financial responsibility through the use of common law doctrines such as assumption of risk and contributory negligence.
¶ 56. However, starting in 1910, the allocation of responsibility for industrial accidents began to change as Wisconsin and other states began passing worker's compensation legislation. See, e.g., ch. 50, Laws of *4831911, codified at Wis. Stat. § 2394 (1911). As this court noted in 1911:
The legislature, in response to a public sentiment which cannot be mistaken, has passed a law which attempts to solve certain very pressing problems which have arisen out of the changed industrial conditions of our time. It has endeavored by this law to provide. . .a system by which every employee. . .may receive at once a reasonable recompense for injuries accidentally received in his employment under certain fixed rules, without a lawsuit and without friction.... [The employer] can never be mulcted in heavy damages, and will know whenever an employee is injured practically just what must be paid for the injury."
Borgnis v. Falk Co., 147 Wis. 327, 337, 354, 133 N.W. 209 (1911). See also Anderson v. Miller Scrap Iron Co., 169 Wis. 106, 110, 114-15, 171 N.W. 935 (1919). Thus, the legislature imposed a compromise between the interests of the employer and those of the employee. See Manitowoc Co. v. Industrial Comm'n, 273 Wis. 293, 77 N.W.2d 693 (1956); Nelson v. Rothering, 174 Wis. 2d 296, 302, 496 N.W.2d 87 (1993).
¶ 57. As part of the compromise, the worker's compensation law created a no-fault liability system in which injured employees are guaranteed "certain and speedy financial assistance," for economic loss and disability, even where the employer is not at fault. Nelson, 174 Wis. 2d at 302. In exchange for this guarantee, employers are exempted from the exposure to "heavy damages" and are subject only to the exclusive remedy requirements of the worker's compensation laws. See Guse v. A.O. Smith Corp., 260 Wis. 403, 51 N.W.2d 24 (1952); Wis. Stat. §2394-4 (1911); Wis. Stat. § 102.03(2) (1995-96).
*484¶ 58. Pain and suffering is one form of damages not included in the statutory financial responsibility placed upon the employers of injured workers. See Wis. Stat. § 2394-9 (1911); Wis. Stat. § 102.42 (1995-96). Accordingly, the worker's compensation law bars employees from asserting general claims for pain and suffering against their employers. See Shymanski v. Industrial Comm'n, 274 Wis. 307, 314, 79 N.W.2d 640 (1956) ("No allowance can be made in a compensation award for physical or mental suffering, however acute, which does not interfere with earning capacity."); Kosak v. Boyce, 185 Wis. 513, 522, 201 N.W. 757 (1925) (general pain and suffering "not compensable under the workmen's compensation act"); Jean Macchiaroli Eggen, Toxic Reproductive and Genetic Hazards in the Workplace: Challenging the Myths of the Tort and Workers' Compensation Systems, 60 Fordham L. Rev. 843, 865 (1992) ("By the very nature of the workers' compensation compromise, compensation is not available for pain and suffering.").
¶ 59. The majority opinion changes the terms of that initial compromise. By citing to Shymanski, the majority states that pain and suffering which interferes with earning capacity is compensable under the Act. Majority op. at 469 n.7. However, it does not, because it cannot, cite to any authority which asserts that the general pain and suffering normally recoverable in a tort action is compensable under the Act. Pain and suffering recoverable in this tort action includes "mental anguish, apprehension, discomfort or sorrow." Wis. JI-Civil 1855. Compensating for suffering which includes apprehension and sorrow is a concept foreign to worker's compensation law. Indeed, limiting the exposure of the employer for such tort recoveries was part of the initial compromise which was the very foun*485dation of worker's compensation law. It is that part of this history and foundation which the majority opinion today negates.
¶ 60. It is against this historical background that I conclude that the majority misinterprets our prior decisions and related statutory language. If viewed in the absence of historical context, I acknowledge that the majority's interpretations maybe reasonable. However, given the ambiguities of the language of the cases and the statute, there is an alternative interpretation that is more reasonable because it is consistent with the underpinnings of Wisconsin worker's compensation law.
¶ 61. The majority concedes that Kottka v. PPG Industries, 130 Wis. 2d 499, 388 N.W.2d 160 (1986), the primary case upon which it relies in arriving at its conclusion, contains "some potentially confusing language." Majority op. at 466. It is in the interpretation of that "potentially confusing language" where I part from the majority.
¶ 62. In Kottka an injured worker brought a tort action, including a demand for pain and suffering, against a third-party tortfeasor. His wife joined the suit alleging loss of consortium. After the worker's death, his widow settled the claims. In approving the settlement, the circuit court allocated the award between the wife and the employer contrary to the formula required by Wis. Stat. § 102.29(1). Instead, the court distributed the loss of consortium award to the widow, but credited the remainder of the settlement, including the monies for pain and suffering, against the employer's liability for future payments under the worker's compensation law. See id. at 502.
¶ 63. The widow appealed the inclusion of the pain and suffering award in the employer's credit. *486After reversing the circuit court's failure to follow the statutory formula, this court applied Wis. Stat. § 102.29(1) and stated that Wis. Stat. § 102.29(1):
does not define a category of employe claims which is beyond the scope of this section... .Our construction gives full effect to the legislative scheme of the Worker's Compensation Act because it permits all parties with an interest in employe tort claims related to workplace injury or death to prosecute these claims against third parties and to share in the proceeds, but does not permit employers or their insurers to invade claims which belong to the employe only.
Kottka, 130 Wis. 2d at 514 (emphasis added).
¶ 64. In interpreting Kottka, the majority concludes that this language:
can only mean that the insurer is not permitted to recover pain and suffering damages awarded against a third party when that recovery would result in a reimbursement of more than the insurer paid or is liable to pay the injured employee as compensation under the Act.
Majority op. at 466-67. This part of the majority's interpretation is simply incorrect. There is no potential for windfall to an insurer under Wis. Stat. § 102.29. After the insurer is reimbursed for actual amounts paid, the employee receives the balance and it is from that balance that the employer is given a "cushion" or credit for future payments for which it may be liable.1
*487¶ 65. I submit that the conflict inherent in the language oí Kottka is resolved by reading the language of the case in the context of the case. The court in Kottka addressed the circumvention of the required Wis. Stat. § 102.29 statutory distribution formula. It was not a case where an employer filed an independent action. Instead, the employer benefited from the lawsuit filed by the injured worker. Thus, while Kottka states that the employer could receive a portion of the worker's pain and suffering award, Kottka and its statutory interpretation have a different starting point than the inquiry facing the court here.
¶ 66. Viewing Kottka in this light, it is apparent that where injured employees are successful in suits against third-party tortfeasors, there is no "category of employe claim which is beyond the scope" of the allocation formula. However, where injured employees do not voluntarily bring suit asserting their pain and suffering, the statute will not allow employers "to invade claims which belong to the employe only." Pain and suffering is a claim personal to the injured worker. It is a claim for which the employer has no liability under the worker's compensation law. The employer here should be barred from pursuing it absent the voluntary *488participation of the injured worker. This proposition is apparent from the language of the statute.
¶ 67. The majority begins its statutory analysis with the incorrect assumption that the language of Wis. Stat. § 102.29 is unambiguous for the purposes of this case, based on Berna-Mork v. Jones, 174 Wis. 2d 645, 651, 498 N.W.2d 221 (1993). While Berna-Mork did declare Wis. Stat. § 102.29(1) unambiguous, it did so in the context of evaluating whether the statute allowed contract claims by employers against third parties. See Berna-Mork, 174 Wis. 2d at 651. Pointing to the language "an action in tort" in the statute, the Berna-Mork court correctly found Wis. Stat. § 102.29 unambiguous in its disallowance of contract actions. See id.
¶ 68. However, this case presents the court with a different question of statutory interpretation. The court must consider whether the statute allows employers to bring pain and suffering actions against third-party tortfeasors on their own initiative when the employer has not been, and under the terms of the worker's compensation law cannot be, held responsible for the injured worker's pain and suffering. Having reviewed the statute, I find it ambiguous in this regard and reach a result at odds with that of the majority.
¶ 69. Wis. Stat. § 102.29(1) indicates in pertinent part:
The making of a claim for compensation against an employer or compensation insurer for the injury or death of an employe shall not affect the right of the employe.. .to make a claim or maintain an action in tort against any other party for such injury or death. . . . The employer or compensation insurer who shall have paid or is obligated to pay a lawful claim under this chapter shall have the same right *489to make claim or maintain an action in tort against any other party for such injury or death....
¶ 70. I part company with the majority in interpreting the word "claim" in the phrase "[t]he employer or compensation insurer who shall have paid or is obligated to pay a lawful claim under this chapter. . . ." In essence, the difference is that I interpret the word "claim" more narrowly than does the majority. In contrast, the majority implicitly, but without discussion, defines the word "claim" as used in this phrase to mean a general claim.
¶ 71. A "lawful claim" under this chapter cannot be a claim for general pain and suffering. The purpose of the statute is to allow the employer or compensation insurer to pursue reimbursement for claims which they were "obligated to pay." As noted above, in worker's compensation law there is no claim for pain and suffering which includes mental anguish, apprehension, discomfort or sorrow that the employer or compensation insurer is "obligated to pay."
¶ 72. Again, I acknowledge that if viewed in the absence of the historical context, the majority's interpretation may be reasonable. However, both the language indicated above and the underpinnings of the Worker's Compensation Act convince me that the legislature did not intend to grant employers the right to sue third-party tortfeasors for pain and suffering absent voluntary participation of the injured worker.
¶ 73. My conclusion that the majority misinterprets our prior decisions and related statutory language is buttressed by equitable principles. If worker's compensation benefits are paid for permanent disability and a third party is held liable, it is equitable for the insurance company to be reimbursed for those benefits. If worker's compensation benefits are paid for *490temporary disability and a third party is held liable, it is equitable that the insurance company be reimbursed for those benefits. Likewise, if the insurer pays medical expenses or funeral expenses, it is equitable that it be reimbursed. All of those benefits are claims "for which the employer or its insurer has or may have liability" under the Worker's Compensation Act. Johnson v. ABC Ins. Co., 193 Wis. 2d 35, 45, 532 N.W.2d 130 (1995).
¶ 74. In Kottka the court concluded that where an injured party brings an action against a third party and receives a pain and suffering award, an employer may be reimbursed out of the pain and suffering recovery. See Kottka, 130 Wis. 2d at 514. Such a conclusion may be equitable. But here, where the injured party declines to bring a third-party action and is forced to join an action and parade her pain and suffering so that the insurance company can be reimbursed from that pain and suffering award, it is not equitable.
¶ 75. Even without the injured party, under the current law the insurance company is free to still maintain an action to seek reimbursement for benefits for which it had actual liability to pay under the Worker's Compensation Act. However, under current law, the insurance company could not get dollar-for-dollar reimbursement unless it was able to get reimbursement out of the plaintiffs pain and suffering award. This result is the consequence of the Wis. Stat. § 102.29 formula which provides that the injured party receives one-third of the proceeds prior to any reimbursement to the insurer. Perhaps what needs to be done is to enact legislation so that the insurance company has the ability to seek dollar-for-dollar reimbursement when the injured party declines to pursue a third-party action. That route is preferable to the avenue chosen by the majority.
*491¶ 76. There are reasons why injured persons may not want to start a lawsuit. Perhaps they do not want to sue the person who may be held liable. Likewise, it may be undesirable for them to have to tell the details of their personal suffering to others. Two examples illustrate the inequity of forced participation.
¶ 77. Consider the logger who borrows a chain saw from his father, who is not his employer. The father modified safety features on the saw for ease of use and then fails to warn his son. In the course of his employment the son injures himself because of the lack of safeguards on the saw and subsequently dies. His wife receives death benefits. She has no desire to sue her father-in-law for causing the death of his son. Yet, she can be forced to participate in such an action so that the insurer can claim reimbursement out of the pain and suffering award.
¶ 78. An injured worker may also lack the desire to bring a suit because he does not want to display the details of his personal suffering. He sustains a work-related injury and as a result experiences severe depression. As a consequence of that depression he receives in-patient psychiatric treatment and subsequently divorces his wife and is estranged from his children. While the injured worker can be required to be a witness on liability issues, he may have little desire to parade the details of the most personal events of his life in front of a jury in the form of his pain and suffering claim. Yet, under the majority's interpretation he can be forced to participate so that the insurer can receive reimbursement out of his pain and suffering.
¶ 79. The majority forces surviving spouses to participate in lawsuits and compels injured workers to display pain and suffering so that the insurance corn-*492pany has the potential to obtain a hundred cents on the dollar reimbursement. Such forced participation is inequitable. It has the potential to revictimize the victim.
¶ 80. In sum, two reasonable interpretations of case law and statutory authority are available in this case. The majority's interpretation is inconsistent with the historical underpinnings of worker's compensation law, the second is not. The majority's interpretation has the potential of revictimizing the victim, the other does not.
¶ 81. I opt for the interpretation that continues the terms of that initial bargain reached in 1911. That interpretation does not force unwilling parties into displaying pain and suffering in order to have the insurer get reimbursed out of an item of damages that it did not pay and was not legally obligated to pay. Accordingly, I dissent.
Moreover, the majority's attempts to incorporate pain and suffering into a worker's actual disability award are unpersuasive. It is true that when physicians are evaluating the degree of disability of an injured worker they consider the degree of physical pain and suffering sustained by the worker. See Wisconsin *487Worker's Compensation Division, Dep't of Workforce Development Publication WKC-7761-P (R.01/96), How to Evaluate Permanent Disability, 1. The degree of disability of a worker is established by determining the level of physical impairment of function based on the physical injury as well as consideration of the extent pain prevents the full use of the damaged body part. Thus, while pain and suffering is considered in the context of determining the degree of functional disability, the injured worker's actual pain and suffering is not compensated in the ultimate disability award.