JANINE P. GESKE, J.
¶ 1. We are faced with one question in this review: Whether the Worker's Compensation Act permits a worker's compensation insurer to assert a claim for an injured worker's pain and suffering in an action against a third party, when the employee has specifically declined to participate in the action? The court of appeals reversed a circuit court order barring the compensation insurer from presenting evidence of the injured worker's pain and suffering.1 We conclude that the Worker's Compensation Act, specifically Wis. Stat. § 102.29(1) (1993-94),2 [456]*456does not prohibit a worker's compensation insurer from seeking reimbursement from an alleged third-party tortfeasor for the payments it has or will make to the employee by claiming all of the worker's damages flowing from the work-related injury including pain and suffering. We therefore affirm the order of the court of appeals.
FACTS AND PROCEDURAL HISTORY
¶ 2. On January 22, 1993, Dorothy Gross fell in her employer's parking lot and sustained injuries. The parties do not dispute that Gross was injured in the course and scope of her employment and that Threshermens Mutual Insurance Company (Threshermens), the worker's compensation insurer, made payments to Gross for her injuries resulting from the fall. On October 21,1994, Threshermens sued Robert Page, National Building Service, and CNA Insurance Companies (collectively Page) claiming that Page was negligent and seeking to recover the amount [457]*457of the payments Threshermens made or will make to Gross as a result of her injury.
¶ 3. Gross was notified of Threshermens' lawsuit against Page but declined to actively participate in it. She did not file an independent action against Page. Consequently, Threshermens joined Gross as an involuntary plaintiff in its complaint, pursuant to Wis. Stat. § 102.29. In the course of pre-trial preparation, Threshermens included Gross on its witness list filed with the circuit court on June 21,1995.
¶ 4. On September 25,1995, Threshermens filed a motion to amend its pleadings. Page opposed the motion, viewing it as Threshermens' attempt to assert a cause of action on behalf of the involuntary plaintiff Gross for recovery of pain and suffering and other damages. The circuit court denied Threshermens' motion to amend its complaint, and precluded Threshermens from offering any argument or evidence regarding Gross's pain and suffering. Threshermens appealed this non-final order.
¶ 5. The court of appeals reversed. The court of appeals concluded that because it is undisputed that an employee can recover pain and suffering from a third party, the worker's compensation insurer must also be permitted to seek this amount even if the insurer did not pay those damages to the employee. We accepted Page's petition for review of the court of appeals' determination.3
[458]*458STANDARD OF REVIEW
¶ 6. This case requires us to interpret and apply Wis. Stat. § 102.29(1), a provision of the Wisconsin Worker's Compensation Act, to a set of undisputed facts. Interpretation of a statute is a question of law which appellate courts review independently, aided by the analysis of the circuit court. See Johnson v. ABC Ins. Co., 193 Wis. 2d 35, 43, 532 N.W.2d 130 (1995). "Where the statutory language is clear, no judicial rule of construction is permitted, and we must arrive at the intent of the legislature by giving the language its ordinary and accepted meaning." Guyette v. West Bend Mut. Ins. Co., 102 Wis. 2d 496, 501, 307 N.W.2d 311 (Ct. App. 1981) (citing City of West Allis v. Rainey, 36 Wis. 2d 489, 496, 153 N.W.2d 514 (1967)). In Berna-Mork v. Jones, 174 Wis. 2d 645, 651, 498 N.W.2d 221 (1993), this court held that the language of Wis. Stat. § 102.29(1) is clear and unambiguous. The statute clearly grants an insurer the same right as an injured employee to make a claim or to maintain an action in tort. See id.
¶ 7. A compensation insurer must establish three elements to recover damages under Wis. Stat. § 102.29(1). As this court set forth in Johnson, 193 Wis. 2d at 45, (1) the action must be grounded in tort; (2) the action must be one for the employee's injury or death; and (3) the injury or death must be one for which the employer or its insurer has or may have liability. The [459]*459court of appeals determined that Threshermens had satisfied all three elements. See Threshermens, 212 Wis. 2d at 7.
¶ 8. The court of appeals dispensed with the first two elements briefly. There was no dispute that Threshermens has satisfied the first element. Threshermens' claim for reimbursement under the compensation statute is an action grounded "in tort." Threshermens' complaint alleges that Page negligently maintained the parking lot at Gross's workplace. Second, Threshermens' claim is a claim "for the employee's injury." The compensation insurer's suit is predicated on Gross's underlying claim for the injuries she received when she fell in her employer's parking lot, and is not apart from that claim. See id.
¶ 9. Addressing the third element, the court of appeals relied on Kottka v. PPG Indus., 130 Wis. 2d 499, 511—15, 388 N.W.2d 160 (1986), to conclude that pain and suffering damages fall within the category of claims to which Wis. Stat. § 102.29(1) applies. See Threshermens, 212 Wis. 2d at 7. The court of appeals observed that Threshermens had complied with the notice provisions of ch. 102, and because the statute specifically provided that "the liability of the tortfeasor shall be determined as to all parties having a right to make a claim, and irrespective of whether or not all parties join in prosecuting such claim," Threshermens was entitled to seek recovery of Gross's pain and suffering. Id.
hH
¶ 10. To adequately interpret and apply the statute at issue here, some background is helpful. Under Wisconsin's Worker's Compensation Act, the benefit to [460]*460an injured employee, like the benefit for the work-related death of an employee, does not compensate only for lost earnings.
Instead, the. . .benefit [for injury] is part of an all-pervasive legislative scheme which attempts to effect a compromise between the employer and the employee's competing interests by granting the worker a certain award in lieu of all common law remedies he may otherwise have had against the employer in exchange for abrogation of the employer's defenses. (Emphasis added.)
Johnson, 193 Wis. 2d at 48. Likewise, the compromise abrogates any common law defenses, such as contributory negligence, that the employer or its insurer might raise.
¶ 11. Under the compromise reached by the legislature, the sole liability of the employer or its insurer to the employee is liability under the Compensation Act. Because the employer's liability is solely statutory, there is no common liability of the employer and a third-party tortfeasor to the injured employee, even though their concurring negligence may have caused the injury. See Wisconsin Power and Light Co. v. Dean, 275 Wis. 236, 241, 81 N.W.2d 486 (1957).
¶ 12. The statute also provides for claims against third parties when a person suffers a work-related injury. The employee, the employer, the compensation insurer and/or any other representative of the injured employee can seek recovery against a third party.
[T]he 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.. .The employer or compensation insurer who [461]*461shall 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.
Wisconsin Stat. § 102.29(1). Once recovery is obtained from the third party, whether by settlement or court judgment, the statute dictates how the recovery is distributed.4
¶ 13. The legislature enacted a distribution scheme that effects the original compromise underlying the Act. See Nelson v. Rothering, 174 Wis. 2d 296, 303, 496 N.W.2d 87 (1993). The scheme of Wis. Stat. § 102.29(1) specifies a reasonable apportionment of proceeds between the parties involved. Specifically, the statutory formula ensures that the employee receives at least one-third of any third-party proceeds after costs of collection, and that "the compensation insurer be reimbursed as fully as possible from the remainder of the sum collected, with any balance going to the employee." Id.
¶ 14. Although the employer's or compensation insurer's recovery rights under the statute are often referred to as rights of subrogation, they are not. We [462]*462recognized in Nelson, 174 Wis. 2d at 306, that reimbursement under the Act was not a matter of equity. The court of appeals has commented on the differences between common law subrogation principles and the reimbursement avenues available to employers and insurers under the Act on several occasions. See, e.g., Campion v. Montgomery Elevator Co., 172 Wis. 2d 405, 493 N.W.2d 244 (Ct. App. 1992), and Martinez v. Ashland Oil, Inc., 132 Wis. 2d 11, 390 N.W.2d 72 (Ct. App. 1986). In Campion, the court of appeals concluded that the rights granted by Wis. Stat. § 102.29(1) are distinct from subrogation, and even though the employee must be given notice and opportunity to join the action, he or she is not a necessary party. See 172 Wis. 2d at 412-13. Accordingly, the joinder rules under Wis. Stat. § 803.03(2) apply to common law subrogation, but not to the statutory reimbursement under § 102.29(1). In Martinez, the court of appeals held that the common law rules of subrogation do not apply to worker's compensation. See 132 Wis. 2d at 16. In particular, the insurer's right of reimbursement under § 102.29(1) supersedes the employee's right to be "made whole" and is not contingent upon the size of the third-party settlement agreement. See id. at 15-16.
¶ 15. Page raises four arguments as to why Threshermens ought not be permitted to make a claim for Gross's pain and suffering in this third-party action, when Gross has declined to participate. Those arguments can be summarized as follows: 1) Threshermens can only raise claims for damages for which it has legal liability under the Act; 2) Threshermens can only claim Gross's pain and suffering if Gross voluntarily participates in the lawsuit; 3) pain and suffering damages are personal to the injured employee and cannot be claimed in her absence; and 4) [463]*463because the statute of limitations has run on any claim against Page that Gross might make, a claim for her pain and suffering is extinguished.5 We will address each argument in turn.
¶ 16. Page first argues that Threshermens cannot bring a claim for Gross's pain and suffering because a compensation insurer may only seek reimbursement for those amounts it has or had legal liability to pay. Page contends that our statutory interpretations in Kottka and Johnson dictate this result. Page asks us to limit Kottka, which allowed the surviving spouse to recover the employee's pain and suffering damages, to cases where pain and suffering claims are brought directly by the employee or his or her estate. Page also asserts that Johnson explicitly restricted a compensation insurer's cause of action to reimbursement for payments it made or will make because of the liability imposed upon it by the Worker's Compensation Act.
[464]*464¶ 17. More specifically, Page argues that the statutory scheme for worker's compensation does not impose liability upon the employer or compensation insurer for the employee's pain and suffering. Awards under the Act, according to Page, only compensate for medical bills and lost wages. Page contends that there is no authority to suggest that the legislature intended to make payment for pain and suffering an element of the employer's or worker's compensation insurer's liability.
¶ 18. Threshermens, however, asserts that an insurer is entitled to share in all claims flowing from the employee's compensable injury. Because Gross's pain and suffering clearly flowed from her work-related injury, according to Threshermens, the worker's compensation insurer can also share in that claim. Threshermens relies on Kottka and Nelson to support this assertion.
¶ 19. Threshermens regards as mere "semantics" Page's contention that recovery for pain and suffering is not contemplated by the worker's compensation statutory scheme. Threshermens points out that in a jury trial, the jury is not asked to award temporary total disability or permanent partial disability. Those terms are particular to the worker's compensation system. Instead, Threshermens asserts that the injured worker's loss for pain and suffering is encompassed within the worker's compensation indemnity award.
¶ 20. To resolve this question, we look first to the language of the statute itself. The language of Wis. Stat. § 102.29(1) does not segregate claims against a third party which may only be asserted by the injured employee, and those which may be asserted by the employer or compensation insurer. "The employer or compensation insurer who shall have paid or is obli[465]*465gated 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." Wis. Stat. § 102.29(1) (emphasis added). The right to "make a claim or maintain an action in tort. . .for such injury or death" under this statute is afforded to both the employer or compensation insurer as well as to the "employe, the employe's personal representative or other person entitled to bring action." Id. This particular provision, titled "Third party liability," affords rights to proceed in tort against a third party. This subsection does not address the employer's or insurer's responsibility for compensation to the employee under ch. 102.
¶ 21. Further, we disagree with Page's attempt to partition out pain and suffering from Gross's other damages. Wisconsin Stat. § 102.29(1) not only allows the insurer to seek reimbursement for what it has paid the injured employee, but is also designed to be the single opportunity to present claims arising from the employee's injury. Although insurer reimbursement under this statute is not subrogation in the common law sense, the principle that the tortfeasor should not escape liability for the damage he or she has caused still applies. If we were to uphold Page's position, the alleged tortfeasor would benefit by avoiding any liability for Gross's pain and suffering simply because the compensation insurer, and not Gross, filed the lawsuit.
¶ 22. One commentator agrees that this section of the Act "preserves to an employer or compensation insurer, the same right possessed by an employee to bring suit against a third-party whose negligence caused injuries to the employee. The employer and compensation insurer therefore, have the right to maintain an action where the employee fails or refuses [466]*466to bring it." Suel O. Arnold, Third Party Actions and Products Liability, 46 Marq. L. Rev. 135,136 (1962).
¶ 23. Case law is consistent with this plain language interpretation. In Kottka, the wife of an employee who later died from his work-related injuries sought to exclude payment of her husband's pain and suffering damages from the allocable settlement amount. The wife asserted that her husband's claim for pain and suffering "was not a 'claim' within the meaning of Wis. Stat. § 102.29(1) because it was not a 'claim for compensation against an employer' or a claim 'for injury or death.'" Kottka, 130 Wis. 2d at 512.
¶ 24. In Kottka, we did not read the language of Wis. Stat. § 102.29(1) to define a category of employee claims beyond the scope of that section. See 130 Wis. 2d at 514. In other words, that section does not segregate certain claims which the employee may make from those which the employer or its insurer may make against the third-party tortfeasor. Some potentially confusing language in Kottka follows: "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." Id. Page asserts that the italicized language from Kottka demands that an insurer such as Threshermens cannot bring a claim for the injured employee's pain and suffering. We disagree with this interpretation.
¶ 25. That language from Kottka, when viewed in context with the language preceding and immediately following it, can only mean that the insurer is not permitted to recover pain and suffering damages awarded [467]*467against 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. There is no doubt of this interpretation by the Kottka court, because it continued, "[Construing sec. 102.29(1), Stats., in this manner comports with '. . . the prevailing rule in the United States [which] refuses to place an employee's third-party recovery outside the reach of the employer's lien on the ground that some or all of it was accounted for by damages for pain and suffering,'" citing 2A Larson, Workmen's Compensation Law, sec. 74.35, p.14-476. Id.
¶ 26. Our interpretation of the statute in Kottka is compatible with our holding in Nelson. In Nelson we concentrated on the types of damages which flow from the injury. There, even though the insurer had originally denied coverage for the particular injury, the court determined that damages flowing from the com-pensable injury were recoverable against the tortfeasor, and subject to distribution under the Wis. Stat. § 102.29(1). See Nelson, 174 Wis. 2d at 305.
¶ 27. The rationale of Nelson can be applied to damages for pain and suffering. Pain and suffering as a result of a work-related injury clearly flow from that injury. Page does not dispute that Gross herself would be entitled to claim pain and suffering as damages. Nowhere does the language of Wis. Stat. § 102.29(1) distinguish between claims the injured employee can bring and claims that the employer or compensation insurer can bring. Further, while the Act's scheme for payment of benefits following a work-related injury does not include "pain and suffering" as a specific item of compensation to the injured employee, the degree of physical pain sustained by the injured worker is cer[468]*468tainly a factor in the determination of the level of disability and thus disability payments accorded the worker:
EVALUATION OF PERMANENT DISABILITY The evaluation of disability in an injured or ill worker is a necessary part of the patient's treatment, and as such is a combination of both art and science. The final rating of the patient's disability should be the personal opinion of the doctor. . . .Some elements of disability, such as range of motion, can be measured with some degree of objectivity. . . .Other elements of disability are more subjective and less capable of being measured precisely. Pain is a good example. There is no question that pain can be disabling. Pain is not easily measured, and judgement (sic) is required....
Wisconsin Worker's Compensation Division, Dept, of Workforce Development Publication WKC-7761-P (R.01/96), How to Evaluate Permanent Disability, l.6 The handbook goes on to cite guidelines in the evaluation of pain, at p.2:
Grading of Pain as a Subjective Symptom. . .Moderate: When the examination reveals the definite evidence of a pathological state of the involved structures that would reasonably produce the degree of pain indicated to be present. This degree of pain might require treatment and could be expected to contribute in a minor degree to permanent physical impairment.
The Wisconsin Administrative Code also refers to the place of pain in overall rating and compensation for workplace-derived disabilities:
[469]*4691. The disabilities set forth in this section are the mínimums for the described conditions. However, findings of additional disabling elements shall result in an estimate higher than the minimum. The minimum also assumes that the member, the back, etc., was previously without disability. Appropriate reduction shall be made for any preexisting disability. Note: An example would be where in addition to a described loss of motion, pain and circulatory disturbance further limits the use of an arm or a leg. A meniscectomy in a knee with less than a good result would call for an estimate higher than 5% loss of use of the leg at the knee. The same principle would apply to surgical procedures on the back.
Wis. Admin. Code DWD 80-32 (ILHR 180.32) (Dec. 1997).7
¶ 28. Page also relies on Smith v. Long, 178 Wis. 2d 797, 505 N.W.2d 429 (Ct. App. 1993) for his assertion that Threshermens has no liability to Gross for her pain and suffering, and therefore cannot include those damages in its suit against Page. Smith considered whether a compensation insurer could seek reimbursement from a settlement reached between the injured employee and a lawyer sued by the injured employee for legal malpractice for failure to bring a third-party tort action in a timely manner.
¶ 29. Smith actually lends support to our conclusion that Threshermens has met all three elements [470]*470necessary to seek reimbursement from Page. In Smith, the injured employee sought to recover from his lawyer not for the work-related injury, but for the lawyer's failure to protect Smith's legal rights. Accordingly, the compensation insurer had no liability for legal malpractice claims. What the compensation insurer must have, to satisfy the third element, is "liability for the injury." Smith, 178 Wis. 2d at 806. There is no dispute that Threshermens has liability to Gross as a result of her work-related injury. Indeed, Threshermens has already made some payment to Gross based on the injuries she sustained in her employer's parking lot.
¶ 30. Finally, just three years ago this court decided a case applying the three elements identified in Kottka. A spouse of a decedent worker brought a wrongful death action against several third parties after recovering death benefits from her husband's worker's compensation insurer. See Johnson, 193 Wis. 2d 35. The circuit court approved distribution of that portion of the settlement proceeds paid to the estate for pain and suffering, and burial expense, but did not approve distribution of those proceeds paid to the spouse for loss of consortium or pecuniary damages. See id. at 40-41. The insurer appealed, asserting that pecuniary damages recovered by a surviving spouse from a third-party settlement are subject to distribution. See id.
¶ 31. This court rejected the surviving spouse's theory that her pecuniary damage claim against the third parties was not subject to allocation under Wis. Stat. § 102.29(1). See 193 Wis. 2d at 46-47. We held that all three Kottka elements were satisfied, because the compensation insurer paid a death benefit based upon the decedent employee's wages and the statutory [471]*471payment formula under the Act. This payment satisfied the third element, namely, that the insurer had liability for the employee's death. See id. at 47. We reached this conclusion, despite the surviving spouse's argument that the compensation insurer did not have liability for a "wrongful death" claim. See id. In order to receive reimbursement from a third-party tortfeasor, the employer or compensation insurer need only have liability under the Act. Specific liability under another statute, or common law claim, is not necessary for reimbursement. See id. at 47-48, explaining Kottka, 130 Wis. 2d at 515.
¶ 32. The plaintiff spouse in Johnson tried to parse the elements of recovery under the Act as distinct from elements of recovery available in a civil suit for personal injury or wrongful death. See Johnson, 193 Wis. 2d at 48-49. Mrs. Johnson argued that the statutory death benefit used only the deceased employee's earnings as a factor, and thus the insurer only had liability for those lost earnings, and similarly could only be reimbursed from amounts she recovered from the third party for lost earnings. We disagreed, concluding that the statutory death benefit does not compensate only for lost earnings, but is part of an overall scheme, effecting "a compromise between the employer and the employee's competing interests by granting the worker a certain award in lieu of all common law remedies he may otherwise have had against the employer in exchange for abrogation of the employer's defenses Id. at 48 (citations omitted).
¶ 33. Similarly, Threshermens had liability under the Act for Gross's injuries. Even though amounts awarded under the Act are labeled "total temporary disability" or "permanent partial disability," those awards do not only compensate for lost earnings. [472]*472Instead, those awards are part of the scheme by which the injured worker receives an award "in lieu of all common law remedies." Id. at 48.
¶ 34. The rationale behind Kottka, Nelson, and Johnson convinces us that despite the historical musings of the dissent, our opinion today in no way undermines the original policy decisions reached in enacting the Worker's Compensation Act. Our conclusion does not recognize any new category of liability of the employer or insurer under the Act. We simply recognize that an injured employee's physical pain has always been a factor in calculating the rating level of disability, upon which impairment of earning capacity is established.
HH HH I — I
¶ 35. Page asserts that it makes a difference whether or not Gross, the injured employee, participates in the suit against Page. Page points to Nelson, Holmgren v. Strebig, 54 Wis. 2d 590, 196 N.W.2d 655 (1972), and Johannsen v. Peter P. Woboril, Inc., 260 Wis. 341, 51 N.W.2d 53 (1952), as supporting recovery for pain and suffering only where the injured worker directly participates in the third-party lawsuit. Because Gross has declined active participation in Threshermens' suit, Page argues that Threshermens is precluded from claiming as damages Gross's pain and suffering. Page admits that had Gross filed the suit, or agreed to participate in Threshermens' suit, a claim for her pain and suffering would be proper.
¶ 36. Threshermens reads both Kottka and Johnson to mean simply that if the worker has or at one time had a claim against a third-party tortfeasor, the compensation insurer can share in any award or settlement resulting from the worker's claim. If there [473]*473are claims for which the compensation insurer has no liability because they are outside the worker's compensation statutory context, such as a spouse's claim for loss of consortium, the insurer may not recover. See Kottka, 130 Wis. 2d at 521; Johnson, 193 Wis. 2d at 46. Threshermens also contends that both parties share in the damages recovered from a third party, regardless of their joinder. See Employers Mut. Liability Ins. Co. v. Icke, 225 Wis. 304, 309, 274 N.W. 283 (1937).
¶ 37. The court of appeals has answered the question presented here, though without lengthy analysis. In Employers Mut. Liab. Ins. Co. v. Liberty Mut. Ins. Co., 131 Wis. 2d 540, 541, 388 N.W.2d 658 (Ct. App. 1986), the question presented was whether the employer's compensation carrier had standing to bring an action on behalf of injured employees in a third-party suit under Wis. Stat. § 102.29(1). Based on a plain reading of the statute, the court held that the compensation insurer had the same right as the employees to make a claim against the third party for the employees' injury or death. See id. at 542. The court of appeals was not dissuaded by the fact that the employees did not join in the prosecution of the action, or declare an intent to share in the proceeds before the statute of limitations would have expired. See id. at 543. Because the insurer had authority to file the claim on behalf of the employees and the action was timely filed, the court concluded that the other eligible parties could share in the recovery according to the statutory formula.8
[474]*474¶ 38. The statute allows the employer, or its compensation insurer, to seek reimbursement from the third-party tortfeasor when either the injured employee or his or her representative files suit against the tortfeasor, or when the employer or insurer commences such an action. See Wis. Stat. § 102.29(1).9
IV.
¶ 39. Next, Page asserts that a claim for pain and suffering is personal to the employee. Because such damages are personal, Page asserts that no one but the employee can claim them. Citing Kottka, Page contends that there are some damages for which the insurer or employer cannot seek reimbursement, because the statute "does not permit employers or their [475]*475insurers to invade claims which belong to the employee only." 130 Wis. 2d at 514. As discussed earlier, we do not read Kottka to prevent an employer or its insurer from making a claim for the injured employee's pain and suffering. Kottka only prevents the employer or insurer from recovering any more than its statutory compensation liability, even when there is recovery against the third party for pain and suffering.10
V.
¶ 40. During the course of this appeal, the statute of limitations11 ran on any claim Gross herself could have made to recover her pain and suffering damages from Page. Page thus asserts that only Gross could have made a claim for her pain and suffering, and because the statute of limitations has expired, Gross's cause of action for pain and suffering is completely extinguished. Page cites Heifetz v. Johnson, 61 Wis. 2d 111, 211 N.W.2d 834 (1973) as support for this restriction. The Heifetz court stated that "[i]n Wisconsin the running of the statute of limitations not only bars recovery but it completely extinguishes the party's cause of action." 61 Wis. 2d at 124. Page contends that the term "full amount of the employe's damages" as [476]*476used in Nelson, refers only to those causes of action the employee actually owns and has asserted. Here, Gross has not only not asserted a claim for her pain and suffering, but she is now foreclosed from doing so by her own inaction and by declining to join Threshermens' suit. According to Page, Gross's only remaining right is the statutory right under Wis. Stat. § 102.29(1), to share in the proceeds of the money recovered by Threshermens for claims for which Threshermens has or may have liability under the Act.
¶ 41. As part of this argument, Page contends that to allow Threshermens to subvert the statute of limitations on Gross's claim for pain and. suffering would be unfair to alleged third-party tortfeasors. Such subjective damages are harder to prove, and defending parties need formal and seasonable notice of the claims against them. Page also asserts that the employee, who waived her opportunity to sue for these damages, would be unjustly enriched if the insurer could obtain those damages for her.
¶ 42. A similar argument was rejected by the court of appeals in Guyette, 102 Wis. 2d 496. In Guyette, the court of appeals held that an injured employee's filing of suit tolled the statute of limitations on the compensation insurer's claim. See id. at 501. The compensation insurer had already provided the employee with notice of its intent to participate in any proceeds the employee recovered from the tortfeasor. The Guyette court, interpreting the plain meaning of Wis. Stat. § 102.29(1), held that the statute required that an employer or compensation insurer be reimbursed from proceeds obtained from a third party, even when the employer or insurer has not joined the action or filed their own lawsuit. See id. To hold otherwise would eviscerate that part of the statute because employers and [477]*477compensation insurers would be forced to file or join a lawsuit to protect their statutory right to reimbursement. See id,12
¶ 43. Threshermens asserts that the liability of a third-party tortfeasor should not be reduced merely because the injured worker has chosen not to participate in the suit, when the alleged tortfeasor has received adequate notice of the claim. No language in the statute evinces a legislative intent to preclude such liability of the alleged tortfeasor, based upon the worker's refusal to participate. In fact, the statutory language providing that "liability of the tortfeasor shall be determined as to all persons having a right to bring a claim, irrespective of whether they joined suit" on its own, imposes no timeliness restriction on any person "having a right to bring a claim" other than the named plaintiff. Wis. Stat. § 102.29(1).
¶ 44. Further, the statutory notice "is the only condition precedent to participation in the distribution" of proceeds in an action under Wis. Stat. § 102.29(1). Employers Mut., 131 Wis. 2d at 540 n.1. As the Employers Mut. court observed, the required notice did not have to be provided prior to the running of any statute of limitations. See id. at 544. Some commentators have read Employers Mut. to mean that "[b]y the express terms of section 102.29(1), when the requisite [478]*478notice is timely given, the entire cause of action against the third party is considered and resolved." Donald H. Piper and David M. Victor, Problems in Third-Party Action Procedure Under the Wisconsin Worker's Compensation Act — An Update, 77 Marq. L. Rev. 489, 498 (1994).
¶ 45. We agree that such a rationale naturally includes presentation of the claim for pain and suffering. There is no dispute that Gross received notice of Threshermens' lawsuit against Page. Therefore, she may participate in the distribution, including recovery of an amount for pain and suffering, if proven.
¶ 46. We are not persuaded by Page's argument that because Gross is an involuntary plaintiff, her claim for her pain and suffering is "extinguished." Wisconsin Stat. § 102.29(1) directs that Gross, as the injured employee, must receive a portion, and perhaps the majority, of any recovery Threshermens obtains from Page. If Gross's claim were extinguished merely by her own inaction, Threshermens would have no obligation to share its recovery from Page with Gross. Such a circumstance would clearly contravene the statutory language. Further, we see nó meaningful lapse of the statute of limitations. Threshermens filed its original complaint, and moved to amend its complaint, within the limitations period for personal injury actions. Even though Gross herself did not initiate suit, her claim for pain and suffering flowing from the work-related accident is not extinguished. See Employers Mut., 131 Wis. 2d at 543-44:
[T]he fact that the employees did not join in the prosecution of the action, or state their intent to share in the proceeds, within the period of the stat[479]*479ute of limitations is inconsequential. There is no question that the action was commenced within the limitation period, and. . .sec. 102.29(1), Stats, is silent on time limits for the employees to take action to join the action or lay claim to a share of the proceeds. . .The employees' damage claims were advanced in an action which was properly and timely commenced by a party with the authority to do so. As long as the action is filed within the appropriate limitation period, the other eligible parties may share in the recovery according to the statutory formula.. .as long as they give notice of their intention to do so prior to trial. It is immaterial that the statute of limitations may have run before they announce that intention.
¶ 47. Page's claims of lack of notice and unfairness are unwarranted and contrary to the plain language of the statute. Threshermens timely filed its motion to amend the pleadings to include pain and suffering. The Nelson court, 174 Wis. 2d at 306, reaffirmed the mandatory nature of the legislative formula for apportioning proceeds of a third-party settlement in a claim for reimbursement for worker's compensation payments:
Accordingly, we conclude that applying sec. 102.29(1), Stats., does not require a determination of the equities involved but rather a mathematical application of the legislative formula for apportioning the settlement proceeds. The legislature could have mandated a different result here had it so desired. Absent such legislation, however, the courts of this state are not free to select a method they might consider to be the most equitable for allocating the proceeds of a particular third-party settlement.
[480]*480¶ 48. Our statements in Nelson, consistent with the court of appeals' discussions in Campion and Martinez, demonstrate that common law rules for equitable subrogation do not apply to third-party tort actions arising from worker's compensation claims.
¶49. Page's arguments all seem to ignore the fact that under the distribution formula of Wis. Stat. § 102.29(1), even if a worker's compensation insurer makes a claim for the injured employee's pain and suffering, the insurer will never be reimbursed an amount above the amount it paid to the injured employee. The ability to assert a claim for the injured employee's pain and suffering only means that the insurer may come closer to receiving a full reimbursement for the amount it paid. Any recovery by the insurer will not surpass its liability. What the compensation insurer claims, and what it may recover under the statute are two different things.
¶ 50. In light of our conclusion that Wis. Stat. § 102.29(1) permits the employer or compensation insurer to claim the injured employee's pain and suffering in an action against the third-party tortfeasor, we need not address Threshermens' last argument. Threshermens argues that it may claim Gross's pain and suffering because such damages are part of the "cushion" to which the worker's compensation insurer is entitled, particularly in cases where the insurer is liable for potential future medical expenditures of the injured worker. Any need for a cushion, according to Page, is taken care of by the insurer's opportunity to prove such need at trial and to seek reimbursement for any such anticipated expenses from the third-party tortfeasor. See Kottka, 130 Wis. 2d at 515; Sutton v. Kaarakka, 168 Wis. 2d 160, 165-66, 483 N.W.2d 259 (Ct. App. 1992).
[481]*481¶ 51. While Page asserted at oral argument that the complaint contains no allegation of Gross's "personal claims," amending the complaint to permit Threshermens to seek pain and suffering is not the same as proving those damages. That burden will continue to rest on Threshermens. A claim for pain and suffering will not necessarily result in a "runaway" verdict, as Page asserted at oral argument. Even if Threshermens alleges and proves that Gross endured a substantial amount of pain and suffering, Threshermens will never recover more than it has paid or will be liable to pay Gross under the statute. After costs and reimbursement of Threshermens' outlay, Gross herself will be the recipient of any supposed "runaway" amount of damages.
¶ 52. Page suggested that if Threshermens is entitled to claim Gross's pain and suffering, that there will be no logical stopping point. We disagree. Under the statute, the employer or compensation insurer is entitled to assert those claims that the injured employee would be able to assert against the third-party tortfeasor. The employer or compensation insurer cannot assert claims belonging to someone else. See, e.g., Kottka, 130 Wis. 2d at 521 (holding that claim for loss of consortium is "personal" to the injured employee's spouse). Thus, Wis. Stat. § 102.29(1) mandates that the "stopping point" is what the injured employee or his or her estate can claim.
¶ 53. Based on the foregoing, we conclude that the Worker's Compensation Act does not prohibit a worker's compensation insurer from seeking reimbursement from an alleged third-party tortfeasor for the payments it has or will make to the employee by [482]*482claiming all of the worker's damages flowing from the work-related injury including pain and suffering.
By the Court. — The decision of the court of appeals is affirmed.