(dissenting). I dissent from the majority opinion because I conclude that sec. 102.29(1), Stats., does not require Nelson to share her recovery for gastrointestinal injuries with Travelers.
Section 102.29(1) governs the allocation of the proceeds of actions against third parties in the worker's compensation context. It provides, inter alia: "After deducting the reasonable cost of collection, one third of the remainder shall in any event be paid to the injured employee .... Out of the balance remaining, the employer or insurance carrier shall be reimbursed for all payments made by it, or which it may be obligated to make in the future, under this [worker's compensationJ chapter." Section 102.29(1), Stats, (emphasis added).1
*310The law of worker's compensation is wholly statutory. Jaeger Baking Co. v. Kretschmann, 96 Wis. 2d 590, 597, 292 N.W.2d 622 (1980). If Travelers is to be reimbursed under the sec. 102.29(1), it must show (1) that it made payments for the gastrointestinal injuries under the worker's compensation statute or (2) that it may be obligated to make payments for the gastrointestinal injuries under the worker's compensation statute in the future.
The circuit court found, and the majority admits, that Travelers paid no compensation to Nelson under the worker's compensation statute for the gastrointestinal injuries. Trial court transcript at 7. The record is replete with Travelers' admissions that it did not pay compensation for Nelson's gastrointestinal injuries. R.84:19; R.84:22. Travelers also admits, and the majority concedes, that no portion of the settlement with Nelson *311related to her gastrointestinal injuries. Majority Op. at 299-300. See also Respondent's Court of Appeals Brief at 7.
Nor will Travelers be obligated, under the worker's compensation statute, to compensate Nelson in the future for her gastrointestinal injury. Travelers' settlement with Nelson on the soft tissue injuries claim precluded all future claims for her gastrointestinal injuries. R.71:8-9; R. 84:19. Thus Travelers has not satisfied the requirements of sec. 102.29(1).
The worker's compensation act is intended to ensure that an injured employee secure payment for compensable injuries. Maryland Casualty Co. v. Industrial Comm., 198 Wis. 202, 211, 223 N.W.2d 834 (1929). The purpose of sec. 102.29(1) is to preserve an injured employee's cause of action against a third party tort-feasor while avoiding double recovery by the employee. Kottka v. PPG Industries, 130 Wis. 2d 499, 508-09, 388 N.W.2d 160 (1986). The worker's compensation act is to be construed liberally in order to effectuate its purposes. Nigbor v. DILHR, 120 Wis. 2d 375, 382, 355 N.W.2d 532 (1984). I conclude, as did the circuit court, that, "if the injury was not recognized by Travelers as a claim for worker's compensation, then it could not later be held a claim for purposes of reimbursement." Majority Op. at 300.
For the reasons stated above, I dissent.
I am authorized to state that Justice LOUIS J. CECI joins in this dissent.
Similar language appears earlier in sec. 102.29(1), Stats.:
(1) 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, the employe's personal representative, or other person entitled to bring action, to make claim or maintain an action in tort against any other party for such injury or death, hereinafter referred to as a 3rd party; nor shall the making of a claim by any such person against a 3rd party for damages by reason of an injury to which ss. 102.03 to 102.64 are applicable, or the adjustment of any such claim, affect the right of the inured *310employe or the employe's dependents to recover compensation. 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 to make claim or maintain an action in tort against any other party for such injury or death. However, each shall give to the other reasonable notice and opportunity to join in the making of such claim or the instituting of any action and to be represented by counsel . . .. Each shall have an equal voice in the prosecution of said claim, and any dispute arising shall be passed upon by the court before whom the case is pending, and if no action is pending, then by a court of record or by the department. If notice is given as provided in this subsection, the liability of the tort-feasor shall be determined as to all parties having a right to make claim, and irrespective of whether or not all parties join in prosecuting such claim, the proceeds of such claim shall be divided as follows: After deducting the reasonable cost of collection, one-third of the remainder shall in any event be paid to the injured employe or the employe's personal representative or other person entitled to bring action. Out of the balance remaining, the employer or insurance carrier shall be reimbursed for all payments made by it, or which it may be obligated to make in the future, under this chapter. . . . (Emphasis added.)