concurring:
Respectfully, I concur with the decision embodied in the principal opinion in this case.
The workmen’s compensation laws of this State are purely a creature of our Legislature. The majority opinion in Makarenko v. Scott, supra, committed fundamental error in grafting onto those laws a principle of common law alien to the Legislature’s purpose in enacting the workmen’s compensation legislation.
In reaching its final conclusion in the Makarenko case, the Court reviewed a large area of the law of negligence, but reduced to its basic reasoning the plaintiff there was denied the right to sue a negligent doctor on two legal principles. The plaintiff, as here, was a statutory recipient under the workmen’s compensation laws whose original injury was aggravated by the treatment of a negligent doctor. Both the basic legal principles considered by Makarenko, however, are rooted deeply and solely in the common law.
The first principle was that a person who negligently causes personal injuries is liable for increased damages due to the negligence of a physician who treats and aggravates the original injury when the injured person exercises reasonable care in selecting the physician. This is almost a universal rule and is certainly the rule in West Virginia. Mier v. Yoho, 114 W.Va. 248, 171 S.E. 535; Annot., 100 A.L.R.2d 808.
Actions by the injured party against a malpractitioner were not barred by this doctrine, rather it was only when the injured party totally released the original tort-feasor that a subsequent action against the malpractitioner was barred. Mier v. Yoho, supra; 22 Am. Jur. 2d, Damages, *488Sections 112-13, pages 163-65; Annot., 100 A.L.R.2d 808; Annot., 40 A.L.R.2d 1075. Many courts have in recent years even reversed this position. 61 Am. Jur. 2d, Physicians, Surgeons, and Other Healers, Section 221, pages 365-68; Annot., 39 A.L.R.3d 260. Even assuming, however, Mier v. Yoho, supra, still to be the law in West Virginia, this does not equate a release in a common-law action for negligence with the receipt of payments by a workmen’s compensation claimant.
Early in American jurisprudence this rule was developed into, the law of common-law damages not to protect a negligent doctor, but primarily to make it simpler to prove total damages in a personal injury case. 22 Am. Jur. 2d, Damages, Section 111, page 162; Annot., 100 A.L.R.2d 808 and the cases cited therein.
The view that an original tort-feasor is liable for the subsequent damage caused by the mistake or lack of skill of a physician or surgeon whose treatment aggravated the original injury has been generally based upon the reasoning that the additional harm is either (1) a part of the original injury; (2) a natural and probable consequence of the tort-feasor’s original negligence; or (3) the normal incidence of medical care necessitated by the tort-feasor’s original negligence. The cases speak in terms of “proximate cause”, and “foreseeable intervening cause”. 22 Am. Jur. 2d, Damages, Sections 112-13, pages 163-65.
Once the courts developed the theory that the original tort-feasor was liable not only for the damage caused by his negligence but for the additional damage caused by a treating physician, it was a logical extension of these decisions to bar an action against a negligent doctor after a release of the original tort-feasor. “Proximate cause”, “foreseeability” and similar common-law conceptional terms merged the damages for this purpose. Conversely, negligence and the related concepts of “proximate cause” and “foreseeability”, the very essential factors in the “release” doctrine, play no role *489at all in the law of workmen’s compensation. This is the major reason why a release of common-law liability cannot be equated with acceptance of payment under workmen’s compensation.
The very purpose of the workmen’s compensation laws is to release both employer and employee from the often burdensome common-law rules of liability and damages. Its policy is to protect the employer from expensive and unpredictable litigation and to provide compensation for injuries to employees without the burdensome requirements of proving common-law negligence. The sharp departure of the workmen’s compensation laws from common-law principles is apparent throughout its various provisions.
Chapter 23, Article 2, Section 6, Code, 1931, as amended, expressly provides that an employer in good standing:
“ * * * shall not be liable to respond in damages at common law or by statute for the injury or death of any employee however occurring, * * * .”
The award to the employee is not based on the negligence of the employer or on any other wrong. It is simply compensation for his being injured in promoting the industrial causes of the State. It permits the employee to receive payments for injury through administrative procedures but severely restricts the type of damages he could receive. He receives nothing for disfigurement, mental suffering, pain, and his recovery for future loss of earning power is severely restricted, as is for that matter in some cases, his right for future medical expenses. All of the injured worker’s rights and obligations are contained in the workmen’s compensation laws.
Chapter 23, Article 2, Section 6a of the Code of West Virginia, 1931, as amended, extends the employer’s immunity defined in 23-2-6, Code, 1931, as amended, to officers, managers, agents, representatives or employees of the employer and to none other. If the Legislature had intended the worker’s receipt of compensation payments *490to serve as a release or immunity to negligent physicians, strangers to the act, it would have so provided.
It is true under any common-law negligence action that there can be only one full recovery and satisfaction from any tort-feasor is satisfaction of the total damages. New River & Pocahontas Consolidated Coal Company v. Eary, 115 W.Va. 46, 174 S.E. 573; Annot., 112 A.L.R. 553. This is a common-law principle. The West Virginia Legislature either by accident or design, however, permits double recovery in a limited area. Such double recovery is allowed a worker injured in covered employment where the injury is caused by a third party tort-feasor. The injured party receives compensation and is allowed to sue the third party. Merrill v. Marietta Torpedo Co., supra; Mercer v. Ott, 78 W.Va. 629, 89 S.E. 952. This rule of law permitting a workmen’s compensation recipient to bring an action against a third party tort-feasor on the same injury for which he was compensated is by far the majority rule in the United States. “When compensable injury is the result of a third person’s tortious conduct, all statutes but two preserve a right of action against the tort-feasor, since the compensation system was not designed to extend immunity to strangers.” 2 Larson, Workmen’s Compensation Law, Section 71:00, page 165.
“ * * * Almost every jurisdiction dealing with the question has recognized in some form that a suit will lie against a physician who has aggravated a compensable injury by malpractice.” 2 Larson, Workmen’s Compensation Law, Section 72:61, page 226.4, citing numerous cases; see 61 Am. Jur. 2d, Physicians, Surgeons, and Other Healers, Section 220, page 364. Only one state (West Virginia under the Makarenko doctrine) relieved the malpractitioner from all tort liability. 2 Larson, Workmen’s Compensation Law, Section 72:61, page 226.7.
There may be serious doubt about the desirability of permitting double recovery even in this limited area of the law. This, however, is strictly a matter within the prerogative of the Legislature. The vast majority of our *491states prevent double recovery by their statutes — not by permitting a tort-feasor physician to go free perhaps at the expense of an innocent employer who contributes to the fund but by apportioning the damages. This is accomplished principally by requiring election, subro-gation or a similar device. 2 Larson, Workmen’s Compensation Law, Sections 72-74, pages 174-226.138.
New York, for example, permits the employee to recover the entire malpractice damage from the doctor, but limits the compensation from the employer solely to the damages for the original injury. Parchefsky v. Kroll Bros., 267 N.Y. 410, 196 N.E. 308. West Virginia is apparently one of only two states which has no provision for election or subrogation in its workmen’s compensation laws. Annot., 28 A.L.R.3d 1066, 1124-25. Again, this is a legislative question, but, until the Legislature has balanced the equities, it is not for this Court to compound the inequity by permitting the negligent physician the protection of a government umbrella with the employer footing the bill.
The cases of Tawney v. Kirkhart, supra, and Hinkelman v. Wheeling Steel Corporation, supra, discussed extensively in the principal decision relate to the question of the liability of a co-employee. The holdings were mooted by Chapter 23, Article 2, Section 6a exempting tort-feasor employees from suit by the injured workmen’s compensation recipient. The physician involved in the instant case is not a co-employee. For these reasons this discussion in the principal decision has no bearing on this case.
It is also felt that the discussions concerning “collateral source” and “joint” or “successive” tort-feasors, although containing some correct expressions of law, are inapplicable to this case.
All the members of the Court strongly agree that the majority opinion in Makarenko v. Scott, supra, was committed to an erroneous proposition of law. It has been a controversial decision, written by a great jurist *492and respected member of this Court, but we respectfully disagree with his conclusion.
My colleague assigned to write the principal decision in this case suggests that overruling Makarenko “in no way articulates a new principle of law”. I am certain he does not, nor do we, intend to announce any innovations in the doctrine of stare decisis. Makarenko, of course, has been the law from its decision until the decision in this case. There were many ancient principles of law discussed in the majority opinion of Makarenko. Some of these cases remain the ruling case law of the State. We would not as my colleague states, “expressly overrule its holding in its entirety”, but we would overrule Makarenko v. Scott, supra, to the extent that it is inconsistent with this concurring opinion.
Judges Berry, Caplan and Haden authorize me to state that they join me in this concurring opinion.