DAVID T. ADAMS, Employee/Appellant, v. DSR SALES, INC., and MILWAUKEE INS. GROUP/UNITRIN,  Employer-Insurer/Cross-Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 28, 2006

 

No. WC05-287

 

HEADNOTES

 

THIRD PARTY LIABILITY - CREDIT; THIRD PARTY LIABILITY - NOTICE TO EMPLOYER. The compensation judge properly determined that the employee had failed to give the workers= compensation insurer notice of settlement negotiations in the employee=s civil action against the third-party tortfeasor, that the presumption of prejudice had not been rebutted, and that, pursuant to Womack v. Fikes of Minn., 61 W.C.D. 574 (W.C.C.A. 2001), the entire net proceeds of the third-party settlement were available for purposes of a credit against workers= compensation liability, subject to the insurer=s ongoing responsibility for the costs of collection.

 

Affirmed as modified.

 

Determined by: Wilson, J., Stofferahn, J., and Pederson, J.

Compensation Judge: Jerome G. Arnold

 

Attorneys:  David R. Vail, Soderberg & Vail, Minneapolis, MN, for the Appellant.  Daniel A. Lively, Law Office of Daniel A. Lively, Bloomington, MN, for the Cross-Appellants.

 

 

MAJORITY OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s decision that the employee failed to give the workers= compensation insurer notice of settlement negotiations in a related third-party action, from the judge=s finding that the presumption of prejudice to the insurer had not been rebutted, and from the judge=s calculation and application of the resulting credit pursuant to Womack v. Fikes of Minn., 61 W.C.D. 574 (W.C.C.A. 2001).  The insurer appeals from the compensation judge=s finding and order concerning payment of contingent attorney fees.  We affirm as modified.

 

BACKGROUND

 

On June 23, 2002, the employee sustained serious injuries when the motorcycle he was riding collided with an automobile.  The employee eventually claimed that his injuries arose out of and in the course of his employment with DSR Sales, Inc., a corporation set up by the employee and a partner to conduct business.[1]  DSR Sales, Inc. [the employer], was insured for workers= compensation purposes by Milwaukee Insurance Group, or Unitrin [hereinafter Unitrin].

 

The employee retained Joseph Leoni, of the Trenti Law Firm, to represent him in a civil action against the driver of the other vehicle involved in the June 2002 collision.  Unitrin was aware of the third-party proceedings and took the employee=s statement in August of 2002, with Mr. Leoni present.  When Mr. Leoni sent Unitrin medical bills related to the accident, Unitrin apparently denied liability, contending that the employee=s injuries did not arise out of and in the course of his employment.

 

In November of 2002, the employee retained David Vail to represent him in his workers= compensation claim.  Following the filing of a claim petition, Unitrin again denied liability.

 

In June of 2003, while his workers= compensation claim was pending, the employee settled his third-party claim for $100,000.00, which, according to the employee, represented the limit of the insurance policy covering the other driver.  After subtraction of fees and costs, the employee recovered $62,667.00.[2]  In exchange for this payment, the employee signed a general release, relieving the third party of all further liability for the accident.  The related Asettlement sheet,@ signed by the employee, contains the following paragraph:

 

I understand that I am responsible for any and all outstanding bills as a result of this accident.  I assume full and total responsibility of all medical expenses and release the Trenti Law Firm from any responsibility for payment of said bills.  In addition, I release the Trenti Law Firm for any obligation for payment to a workers= compensation carrier or any negative impact upon a workers= compensation claim or settlement in this fashion.  This would include a Naig Release, Perringer Release or any other type of claim.

 

Unitrin, the workers= compensation insurer, was not notified of and did not take part in the third-party settlement negotiations.  The employee testified that Mr. Leoni had explained to him that his settlement in the third-party case might have an effect on his entitlement to workers= compensation benefits.

 

In September of 2003, the employee=s workers= compensation claim for medical expenses came on for hearing before Judge Gregory Bonovetz.  The primary issues were whether the employee=s injuries arose out of and in the course of his employment by DSR Sales and whether non-intervening medical providers were entitled to payment.  In his decision, filed September 5, 2003, Judge Bonovetz found in the employee=s favor on the issue of primary liability and ordered payment of the claimed expenses.  On appeal, the decision of the compensation judge was affirmed.[3]

 

The matter came before a compensation judge again, this time Judge Jerome Arnold, on August 16, 2005.  Issues at this hearing included claims reserved from the prior proceedings, specifically, wage loss claims and claims related to the employee=s thoracic spine, as well as Unitrin=s claim for a credit based on the proceeds from the employee=s third-party settlement.  The parties agreed that the employee was entitled to wage loss benefits in the amount of $20,550.00, representing 27.4 weeks of temporary total disability.  Unitrin further agreed that Mr. Vail was entitled to a contingent attorney fee in the amount of $4,310.00, based on these wage loss benefits, and that an award under Minn. Stat. ' 176.081, subd. 7, was payable.  The parties disagreed as to whether Unitrin had been given legally sufficient notice of the third-party settlement, the amount of the credit, if any, to which Unitrin was entitled based on the third-party settlement proceeds, and how the credit, if any, should be applied.

 

In a decision issued on October 13, 2005, the compensation judge determined that the employee had injured his thoracic spine in the June 23, 2002, accident, and he awarded certain medical expenses related to that condition.  The judge also determined that the employee had failed to give notice to the employer and insurer of third-party settlement negotiations, as required by case law, that the employee had failed to rebut the presumption of prejudice resulting from his failure to give the required notice, and that, pursuant to Womack v. Fikes of Minn., 61 W.C.D. 574 (W.C.C.A. 2001), the entire net proceeds of the third-party settlement - - $62,667.00 - - was available to Unitrin for purposes of a credit against its workers= compensation liability.  With regard to past benefits paid by Unitrin, including at least $32,584.38 in medical expenses paid pursuant to the order of Judge Bonovetz, as well as Aany payments made under [Judge Arnold=s] order,@ except interest payments, Judge Arnold ruled that Unitrin was entitled to Aa dollar for dollar set off to be taken against its subrogation interest of $62,667.00.@  As to future benefits payable to the employee, the judge ordered that the Acost of collection@ ratio be applied, meaning that Unitrin would be liable to pay 37.3 cents for every dollar in workers= compensation benefits otherwise owed, while reducing Unitrin=s remaining available subrogation credit by one dollar.  Unitrin was also ordered to pay $4,310.00 to Mr. Vail in contingent attorney fees.  Both parties appeal.

 

STANDARD OF REVIEW

 

On appeal, the Workers' Compensation Court of Appeals must determine whether "the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted."  Minn. Stat. ' 176.421, subd. 1 (2004).  Substantial evidence supports the findings if, in the context of the entire record, "they are supported by evidence that a reasonable mind might accept as adequate."  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

 

"[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers' Compensation Court of Appeals] may consider de novo."  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff=d (Minn. June 3, 1993).

 

DECISION

 

Minn. Stat. ' 176.061 generally governs the rights and liabilities of both employees and employers in cases in which third-party liability has been established.  As a general rule, employees may protect one-third of proceeds from a third-party action against any subrogation or credit claim by an employer or its workers= compensation insurer.  Minn. Stat. ' 176.061, subd. 6(b). The statute also specifies that notice of intention to settle a third-party action must be given to employers, providing as follows:

 

Notice to employer.  In every case arising under subdivision 5, a settlement between the third party and the employee is not valid unless prior notice of the intention to settle is given to the employer within a reasonable time.  If the employer or insurer pays compensation to the employee under the provisions of this chapter and becomes subrogated to the right of the employee or the employee=s dependents or has a right of indemnity, any settlement between the employee or the employee=s dependents and the third party is void as against the employer=s right of subrogation or indemnity.  When an action at law is instituted by an employee or the employee=s dependents against a third party for recovery of damages, a copy of the complaint and notice of trial or note of issue in the action shall be served on the employer or insurer.  Any judgment rendered in the action is subject to a lien of the employer for the amount to which it is entitled to be subrogated or indemnified under the provisions of subdivision 5.

 

Id. at subd. 8(a).

 

In Easterlin v. State, 330 N.W.2d 704, 35 W.C.D. 650 (Minn. 1983), the Minnesota Supreme Court determined, under a somewhat different version of Minn. Stat. ' 176.061, that an employee=s failure to give an employer notice of third-party settlement negotiations is presumptively prejudicial and that, because the presumption of prejudice had not been rebutted in that case, the employer and insurer were entitled to a credit, for future compensation payable, against the employee=s Naig settlement recovery.[4]  Subsequently, in McDonough v. Muska Elec. Co., 486 N.W.2d 768, 47 W.C.D. 93 (Minn. 1992), a case decided under the current version of Minn. Stat. ' 176.061, the supreme court reaffirmed the validity of the Easterlin holding as to notice, explaining that notice of settlement negotiations was required even though no workers= compensation claim had been filed and no benefits had been paid by the time the third-party case settled.[5]  Then, in Womack v. Fikes of Minn., 61 W.C.D. 574 (W.C.C.A. 2001), a panel of the Workers= Compensation Court of Appeals concluded that Easterlin was applicable where the employee had failed to notify the employer and insurer of the institution of a third-party suit and the trial of the third-party action.  Accordingly, the court concluded that the employee in that case had forfeited his statutory right to protect a one-third share of the third-party litigation proceeds.  The employer and the workers= compensation insurer were therefore allowed to take a credit against their workers= compensation liability, in the amount of the net third-party proceeds, including the employee=s statutory one-third share.  However, the court in Womack also concluded that the employer and insurer were liable for ongoing collection costs, based on the ratio outlined in Kealy v. St. Paul Housing & Redevelopment Auth., 303 N.W.2d 468, 33 W.C.D. 388 (Minn. 1981).  See also Minn. Stat. ' 176.061, subd. 6(c).

 

In the present case, the compensation judge concluded that the employee had not given the employer and insurer notice of settlement negotiations or the settlement of the third-party action, that the presumption of prejudice had not been rebutted, and that, pursuant to Womack, the net proceeds of the third-party settlement - - $62,667.00[6] - - were available to Unitrin as a credit against workers= compensation liability.

 

On appeal, the employee argues initially that, because Unitrin had notice of the third-party proceedings, Unitrin had adequate ability to protect its interests,[7] despite the employee=s failure to notify Unitrin of the settlement negotiations and resulting settlement.  However, a primary function of the Easterlin notice requirement is to allow an employer and workers= compensation insurer an opportunity to participate in settlement negotiations, McDonough, 486 N.W.2d at 771, 47 W.C.D. at 97, and it is not reasonable to expect an employer and insurer to maintain constant contact with the litigants in a third-party action in order to be assured the opportunity to join settlement talks, especially when the burden on the employee to give notice of settlement negotiations is so minimal.[8]  See Easterlin, 303 N.W.2d at 708, 35 WCD at 657.

 

The employee also contends that the compensation judge erred in concluding that the presumption of prejudice had not been rebutted.  We disagree.  The employee presented no evidence whatsoever that would tend to rebut the presumption; in fact, the employee=s testimony clearly establishes that he is frankly hostile to the workers= compensation carrier,[9] making it very unlikely that Unitrin could expect cooperation from the employee in any claim made by Unitrin against the third party or the third-party insurance carrier.[10]  We therefore conclude that the compensation judge properly determined that, because the employee failed to give notice to Unitrin of settlement negotiations and also failed to rebut the presumption of prejudice, the entire net proceeds of the third-party settlement are available as a credit against Unitrin=s workers= compensation liability.[11]

 

Having determined that the compensation judge correctly concluded that the entire $62,667.00 net settlement was available to Unitrin as a credit, we turn to the question of how the credit is to be applied.  Because the answer to this question is complex, and because the compensation judge=s decision is ambiguous in some respects, we conclude that the most efficient way to resolve the remaining issues is to simply describe the process, rather than addressing the judge=s decision point by point.

 

As previously indicated, Womack specifies that the workers= compensation insurer is responsible for ongoing costs of collection when applying its credit to workers= compensation benefits paid or awarded.  In this case, Unitrin=s cost of collection is 37.3 cents on the dollar.  In other words, for every dollar of workers= compensation benefits otherwise owed, Unitrin is responsible for 37.3 cents, while the available credit is reduced by one dollar.  See Womack, 61 W.C.D. at 588; see also Snyder v. Yellow Freight Sys., 683 N.W.2d 788, 64 W.C.D. 139 (Minn. 2004).

 

Following Judge Bonovetz=s decision and the resulting appeal, Unitrin paid at least $32,584.38 in medical expenses,[12] without the application of any credit.  In reality, given their entitlement to a credit, subject to collection costs, Unitrin was liable for only $12,153.97 of those expenses.  As such, Unitrin in effect made an overpayment in the amount of $20,430.41.  This is an ordinary overpayment, subject to offset on a dollar-for-dollar basis against the employer=s liability for the indemnity benefits awarded at the hearing before Judge Arnold,[13] with the total subrogation credit available to Unitrin reduced by the full $32,584.38.

 

However, the question of Mr. Vail=s entitlement to a contingent fee, calculated on the wage loss benefits stipulated by the parties and awarded by the judge, complicates the process.  First, it is clear that Mr. Vail is entitled to be paid a contingent fee in the amount of $4,310.00, based on the employee=s stipulated entitlement to $20,550.00 in temporary total disability benefits.  Public policy dictates that Mr. Vail be paid for his efforts, in that, at the very least, the temporary total disability award has in the end reduced the credit available to Unitrin pursuant to Womack.  We therefore agree with the compensation judge that Unitrin may not use its credit to avoid paying Mr. Vail=s fee.  See also Gruber v. Independent Sch. Distr. #625, 57 W.C.D. 284 (W.C.C.A. 1997).[14]  However, because Unitrin is liable to pay this $4,310.00 to Mr. Vail, only the balance of the temporary total disability award, $16,240.00, is to be credited on a dollar-for-dollar basis against Unitrin=s overpayment of medical expenses.  That is, the medical expense overpayment of $20,430.41 is reduced by the $16,240.00 net temporary total disability award, leaving an overpayment of $4,190.41, which is further reduced by the compensation judge=s award under Minn. Stat. ' 176.081, subd. 7, of $1,218.00, resulting in a net overpayment of $2,972.41.  Unitrin may apply this overpayment against future liability pursuant to Minn. Stat. ' 176.179.[15]  Furthermore, Unitrin may apply the $4,310.00 paid to Mr. Vail as an additional credit on the same basis.  The medical expenses awarded by Judge Arnold are payable by Unitrin to the extent of its collection cost responsibility, 37.3 cents on the dollar.

 

After extinguishment of its remaining Minn. Stat. ' 176.179 overpayment credit, previously described, Unitrin is entitled to reduce other future benefit payments by 62.7 cents for every dollar otherwise owed, while reducing its remaining credit by one dollar, under Womack, until the entire $62,667.00 third-party settlement credit has been exhausted.  To the extent that our decision here is inconsistent with any of the compensation judge=s determinations, the judge=s decision is modified accordingly.

 

 

DISSENTING OPINION

 

DAVID A. STOFFERAHN, Judge

 

Subrogation and Credit

 

I dissent.  I would reverse the compensation judge and order the distribution of the third-party settlement pursuant to Minn. Stat.  ' 176.061, subd. 6, as requested by the parties.

 

Minn. Stat. ' 176.061, subd. 6, provides for the following distribution of a third-party settlement:

 

a.  Costs of collection, including attorney fees, are first deducted from the settlement.

 

b.  From the remainder, one-third is paid to the employee.

 

c.  The employer and insurer are reimbursed from the resulting balance with a  reduction for their share of the costs of collection.

 

d.  The balance, if any, is paid to the employee and serves as a credit for the employer=s future workers= compensation obligations.[16]

 

The majority refuses to apply the statute because the employee failed to give notice of the pending settlement to the insurer as required by Minn. Stat. ' 176.061, subd. 8a.  It is the majority=s positions that the failure to give notice triggers the punitive provisions set out in Womack v. Fikes of Minn., 61 W.C.D. 574 (W.C.C.A. 2001).  I disagree.

 

It should be emphasized at the outset that the failure of the employee to give notice was not raised as an issue at the hearing by the insurer.  Both parties agreed at hearing that the settlement proceeds would be distributed in accordance with Minn. Stat. ' 176.061, subd. 6, and the insurer prepared an exhibit with its calculations which followed the statutory distribution.  The compensation judge, and now the majority, have provided a Aremedy@ for this case not sought by any party.  I am also convinced that Womack should not be relied upon and should be specifically overruled by this court.

 

The premise of Womack is that there should be a consequence to the employee for a failure to give notice of a pending settlement. The key holding of Womack is to punish the employee for the failure to give notice by taking away the employee=s statutory one-third share of  proceeds under Minn. Stat. ' 176.061, subd. 6(b). No authority is given for the imposition of this penalty other than it would be Aappropriate.@  This court does not have authority to create law. Our jurisdiction is to apply the workers= compensation law as written by the legislature. The court in Womack ignored the language in Minn. Stat. ' 176.061, subd. 6(b), that this amount Ashall in any event be paid to the injured employee or the employee=s dependents, without being subject to any right of subrogation.@  (Emphasis added.)  The majority=s misplaced reliance on Womack in the present case takes away $20,889.00 from Mr. Adams.

 

Womack was decided on an assumption that no consequence for the employee=s failure to provide notice of a third party settlement is provided in the statute.  In this assumption, the Womack court erred.  In 1983, the legislature enacted Minn. Stat. ' 176.061, subd 8a, which codified the employee=s obligation to give notice and which also provided that Aa settlement between the third party and the employee is not valid unless prior notice of the intention to settle is given to the employer in a reasonable time.@  No other consequence is set out in the statute.

 

It is not clear why the Womack court ignored the statutory language, but it did so.  The present majority, because of a concern that the statute is not Aadequate@ suggests that the Womack penalty should be considered as another possible consequence.  It is not this court=s role to consider the adequacy of the provisions of the Workers= Compensation Act as established by the legislature.  There is also no language in the statute which would suggest that the provisions to be found in Minn. Stat. ' 176.061, subd. 8a allow for other results.  The statutory language creates a situation in which all parties in the third party action are placed back in the negotiation stage as though there had never been an agreement.  At that point, the employer and insurer are able to intervene and protect their interest through negotiation.  No party is punished.  That result is completely inconsistent with the approach followed by Womack in which the employee is punished and the employer receives a windfall.  Simple statutory construction would indicate that the Womack approach is not an option to be applied in place of the statute.

 

It is also disturbing that the majority=s result is applied in a case in which the insurer would have had no right to intervene in the third-party action even if it had received notice of the pending settlement.  The insurer in the present case denied liability for any workers= compensation benefits, and as of the time of the third-party settlement, had paid no benefits of any kind.  This court has held previously, in a result affirmed by the supreme court, that the presumption of prejudice was rebutted in these circumstances and a full credit against the settlement would not be allowed to the insurer.  McDonough v. Muska Electric Co., 47 W.C.D. 71 (W.C.C.A. 1992); McDonough v. Muska Electric Co., 486 N.W.2d 768, 47 W.C.D. 93 (Minn. 1992).

 

The result reached by the majority in relying on Womack is contrary to statute, it considers issues not raised by any party at the hearing, it is  grossly unfair to the employee, and it provides a remedy not sought by any party.

 

Attorney Fees

 

I also dissent on the question of attorney fees awarded to the employee=s attorney under Minn. Stat. ' 176.081.  I would vacate the compensation judge=s award and not award any contingent fees.  Contingent fees are awarded from the benefits paid to the employee.  At this time, we simply have no idea what that amount might be.  Application of Minn. Stat. ' 176.061, subd. 6, in the present case would result in a reimbursement to the insurer.  As the majority points out, we do not know whether the employee is able to or willing to make that payment.  In the Appendix, I indicate how that factor would affect the question of fees.  After the parties have finally determined the amounts of payment, of reimbursement, of credit, and of payment to the employee, contingent fees could then be requested by the employee=s attorney.  I would also vacate the denial of the award to the employee under Minn. Stat. ' 176.081, subd. 7.  There is no basis for that denial.

 

 

APPENDIX

 

A.  These figures assume reimbursement by the employee to the insurer for past benefits.

 

Gross Settlement                                              $100,000.00

 

Attorney fees & Costs                                      $  37,333.00

(37.33% of settlement)

Balance                                                            $  62,667.00

 

Employee=s Statutory 1/3 Share                        $  20,889.00

 

Balance Subject to Subrogation & Credit          $  41,778.00

 

Past benefitsl Paid by Insurer as of 8/16/05       $  32,584.38

 

Balance Subject to Credit for

Payments after 8/16/05                         $   9,193.62

 

Notes

1.  Employer=s subrogation amount is reduced by costs of collection. $32,584.38 less 37.33% of that amount is $20,420.63 -  payable to insurer from employee

 

2.  The parties stipulated the employee was entitled to $20,550.00 in wage loss benefits. The employer=s credit is reduced by this amount but the credit is reduced by the costs of collection and the employee is paid the costs.

 

a. Credit reduced by costs of collection

$9,193.62 less 37.33% = $5,761.84

 

b. Payable to employee (not including meds after 8/16/05)

$20,550 - $5,761.84 = $14,788.96

 

c. Contingent fees on $14,788.96 = $3,157.79

sub. 7 fees = $872.34

 

3.  The credit is exhausted and any additional benefits paid after 8/16/05 are not subject to credit.

 

B. These figures assume no reimbursement to the insurer by the employee.

 

Gross Settlement                                              $100,000.00

 

Attorney Fees and Costs                                  $ 37,333.00

 

Balance                                                            $ 62,667.00

 

Employee=s Statutory Share                              $ 20,889.00

 

Balance Subject to Credit                                 $41,778.00

 

Notes

 

1. While the entire amount of the stipulated wage loss benefits reduces the credit, the insurer pays the employee the costs of collection.

 

a. Credit

$41,778.00 - $20,550.00 = $21,228.00 for future credit

 

b. Paid to employee

$20,550.00 X .3733 = $7,671.31

 

2. Contingent fees

$7,671.31 X 25/20 formula = $1,734.26

Subd. 7 fees = $ 445.28

 

 


[1] In a statement given to the workers= compensation insurer, the employee indicated that DSR Sales owned a resort and also manufactured and marketed off-road amphibious vehicles.

[2] The employee testified that he also received $65,000.00 from his own insurance company, for underinsured coverage.

[3] Adams v. DSR Sales, Inc., 64 W.C.D. 396 (W.C.C.A. 2004).  In this decision, the Workers= Compensation Court of Appeals concluded that the employee was entitled to pursue medical expense claims even though his medical providers had not intervened in the case.

[4] A Naig settlement is one in which the employee settles claims against a third party for damages not recoverable under the workers= compensation act.  Naig v. Bloomington Sanitation, 258 N.W.2d 891, 30 W.C.D. 12 (Minn. 1977).

[5] However, in McDonough, the supreme court affirmed the Workers= Compensation Court of Appeal=s conclusion that the presumption of prejudice had been rebutted.  Accordingly, no credit was allowed.

[6] $100,000.00 minus attorney fees and costs.

[7] The employee also quotes Womack as holding that A[a]ctual notice of >institution of suit or trial should be the same as . . . notice of intention to settle.=@  The employee=s quotation is flagrantly misleading.  What the court in Womack actually said is that Athe consequences for failure to give notice of institution of suit or trial should be the same as for a failure to give notice of intention to settle.@  Womack, 61 W.C.D. at 583 (emphasis added).

[8] The employee also appears to suggest that the fact that he was essentially self-employed has some relevance to the notice question.  However, the workers= compensation insurer was the real party in interest with respect to third-party settlement negotiations here, and we do not believe that the employee=s knowledge of settlement in the third-party case may be inputed to Unitrin.  Cf. Wirrer v. Bostrom Sheet Metal Works, slip op. (W.C.C.A. Apr. 20, 2001) (a foreman=s knowledge of his own work injury may not be inputed to the employer for purposes of satisfying the notice requirement of Minn. Stat. ' 176.141).

[9] When asked at hearing whether he had reimbursed Unitrin for workers= compensation benefits paid due to the accident, the employee responded, AI=d file bankruptcy before I do that.@  AWork comp is useless.@

[10] The circumstances of this case clearly illustrate why allowing the workers= compensation insurer to treat the third-party settlement as void, and to pursue its subrogation interest, is not adequate to remedy the harm done by leaving the workers= compensation carrier out of settlement negotiations.  As the supreme court noted in Easterlin, an employer presenting a subrogation claim against a third party will require the assistance of the employee to prove both the third party=s liability and the nature and extent of the employee=s disability.

[11] The employee also argues that the compensation judge erred by allowing a larger credit than Unitrin was seeking at hearing.  There is some merit to this argument.  However, the effect of the employee=s failure to give Unitrin notice of settlement negotiations was clearly at issue at the hearing, and the employee himself made arguments concerning the applicability of Womack.  Under these circumstances, we cannot fault the compensation judge for following applicable law.

[12] As noted by Judge Arnold, it appears that Unitrin paid something more than $32,584.38, but the precise amount was not established by the evidence submitted at hearing.  We see no evidence that Unitrin reimbursed the no-fault carrier for these expenses; rather, it appears that Unitrin paid the providers.

[13] See Minn. Stat. ' 176.179; Cassem v. Crenlo, Inc., 470 N.W.2d 102, 44 W.C.D. 484 (Minn. 1991).

[14] In addition, Unitrin agreed at hearing that Mr. Vail was entitled to payment.

[15] A credit under Minn. Stat. ' 176.179 may not be taken against medical expenses.

[16] The Appendix sets out calculations under the statute for the present case.  As the majority points out, the parties were not completely clear as to what benefits were paid by the insurer.  The Appendix is meant as a guide.