Either the employee or the worker's compensation insurer may initiate a third-party recovery under § 15 (the insurer must wait until seven months after the date of injury); therefore, there is no requirement under that particular statute that the settlement be in the best interest of one party or the other. However, when there is a lump sum under § 48 that is heard simultaneously with the § 15 petition, the statutory mandate under § 48 (that the lump sum settlement must be in the employee's best interest) predominates.
It is dangerous to present an approval of a § 15 petition in court when the overall agreement includes a lump sum. Most often in these cases, the workers' compensation insurer is waiving a portion or all of its prior right to recovery for third party. A problem arises where the court approves a third-party petition and the DIA judge does not think the lump sum is in the best interests of the plaintiff/employee. Better practice is to do both simultaneously at the department.