concurring in part and dissenting in part:
T1 This appeal concerns the extent to which a workers' compensation carrier can recover benefits it paid for a job-related injury from a third party with some fault in causing the injury. The workers' compensation carrier in this case has contended that it can recover all of the benefits from a third-party tortfeasor that was only 20% negligent in causing the job-related injury. The workers' compensation carrier herein has argued that 85 0.S$.2001 § 44(c) grants workers' compensation carriers "all of the common law rights" of the injured worker, including recovery of the entire loss from a single tort-feasor.
12 As the majority opinion points out, there is some authority for such a conclusion. Based on such authority, the majority has remanded this case for the trial court to determine whether the injured worker was negligent in causing her injury and, if so, whether such negligence was less than the 20% negligence of the third-party tortfeasor. Despite an analysis that is both logical and persuasive, I nonetheless dissent from this approach for determining the recovery of the workers' compensation carrier herein. I dissent because I do not believe the interpretation by the workers' compensation carrier and the majority is the only interpretation of § 44(c) that can be given based on the language and purpose of the statute.
13 The right that is given a workers' compensation carrier under § 44(c) is the right of subrogation. In the case of Smith v. Minter, 1947 OK 97, ¶ 0, 191 P.2d 929, 929-30 (syllabus 2), the Oklahoma Supreme Court stated:
The principle to be derived from the doctrine of subrogation is that it is born of equity, and results from the natural justice of placing the burden where it ought to rest. -It does not flow from any fixed rule of law, but rather from principles of justice, equity, and benevolence. It is a purely equitable result, depending, like other equitable doctrines, upon the facts and circumstances of each particular case to call it forth.
Allowing a workers' compensation carrier to recover all of the benefits paid to an injured worker from a party who is only 20% liable for the accident that injured the worker does not fairly place the burden where it ought to rest.
T4 Under the facts and circumstances of this case, and others like it, "principles of justice, equity and benevolence" dictate that the financial burden for the benefits paid an *939injured worker be shared by the workers' compensation carrier (who has been paid to insure injury to workers without regard to fault by anyone) and any third party who has contributed to the injury. Having been fairly paid to cover workplace risk of injury, a workers' compensation insurer should bear the burden of any portion of risk that is not attributable to the fault of other contributing causes.
¶5 Section 44 has always been interpreted in a way that prevents any type of double compensation in cases where workers' compensation applies and tort recovery is also possible. If section 44(c) is interpreted in the manner suggested by the workers' compensation carrier and the majority, (i.e., allowing the carrier to recover all of the benefits paid from a third party who is only partially responsible for the injury), the result is that the carrier would be compensated twice for covering the same risk-first from the employer in the form of premiums and secondly from the third party by way of full recovery. Applying the right of subrogation given by § 44(c) in its traditional equitable sense prevents such double compensation while at the same time allowing the workers' compensation carrier to recover a fair share of the benefits paid based on the proportional fault of any other party that caused the job-related injury.
T6 While I concur with the majority that the summary judgment must be reversed and the case remanded to district court for further proceedings, I dissent to the directions given the trial court for determining the liability of the third-party tortfeasor. I would direct the trial court to determine the liability of the third-party tortfeasor by applying subrogation in its equitable sense and limiting the liability of third-party tortfeasor to the proportion of fault of the third party in causing the job-related injury.