BAILEY, Judge.
Jimmie C. Smith (“Smith”) appeals the dismissal of his Application for Adjustment of Claim with the Indiana Worker’s Compensation Board (“Board”). We reverse and remand.
The sole issue presented is whether Smith’s worker’s compensation application was properly dismissed pursuant to the subrogation portion of the Indiana Worker’s Compensation Act (“the Act”), Indiana Code Section 22-3-2-13, after Smith settled his claim against a third-party tortfeasor.
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The parties disagree as to whether the “absolute bar” provisions of Indiana Code Section 22-3-2-13 are applicable here. This subrogation statute provides in relevant part . . . “if . . . settlement is made with the other person, either with or without suit, then . . . the liability of the employer or the employer’s compensation insurance carrier to pay further compensation or other expenses shall thereupon terminate.” . . . Smith contends that the foregoing is inapplicable to him because his circumstances present an issue that has not been squarely decided: “whether a third party settlement bars worker’s compensation benefits where the settlement is obtained before a worker’s compensation award has been resolved, and is in an amount less than the anticipated worker’s compensation benefit.” Appellant’s Brief at 8. He supports his argument by referencing Depuy, Inc., in which our Supreme Court observed that an employee who obtains a “final judgment” against a third party for less than the amount of the employer’s liability under the Act may nevertheless collect worker’s compensation benefits by collecting the judgment and repaying the employer (or employer’s insurer) for previous compensation or assigning all rights under the judgment to the employer. 847 N.E.2d at 166. . . . Smith correctly observes that there may be some potential, in furtherance of the humane purposes of the Act, for some supplemental payment from an employer after the injured employee has recovered from a third-party tortfeasor an amount less than the “apparent worker’s compensation benefits” before the worker’s compensation claim was resolved. See id.
Champion asserts that Smith forfeited any right to worker’s compensation when he settled without having already obtained the 19% impairment rating. Nevertheless, Smith had a pending Application for Adjustment of Claim when he settled with Bitnner and when he obtained his 19% impairment rating after settlement. Accordingly, his worker’s compensation claim was not resolved.
Champion further asserts that it was not a party to the settlement and, if Smith were permitted to settle a third-party claim and then make additional demands for benefits, based upon later-obtained information, Champion’s rights to lien satisfaction would not be protected. However, this is contrary to the plain language of our Indiana Supreme Court in DePuy: “if an employee settles without the approval of the employer (or its carrier) the employer (or its carrier) is free to challenge the amount received as inadequate.” 847 N.E.2d at 169-70. Under the current circumstances, Champion did not contest the adequacy of the settlement even though it was aware of the third-party claim, asserted its statutory lien and accepted payment from the settlement proceeds. Champion cannot now be heard to complain. Mindful that the Act should be liberally construed “so as to not negate the Act’s humane purposes” we conclude that Smith should be allowed to proceed with his worker’s compensation claim that was pending at the time of the settlement.
Reversed and remanded for further proceedings.
MATHIAS, J., and BARNES, J., concur.