Don A. Fendon 2012-12-12 01:13:52
The issue of the election of remedies can be troublesome for an attorney. When I speak about the election of remedies I am referring to whether an injured worker should file for and accept workers’ compensation benefits or pursue a tort claim civilly in Superior Court against his employer. Even if an injured employee does not formally reject workers’ compensation coverage prior to sustaining an on the job injury, the rule of exclusivity is not absolute. Generally however, if one is injured on the job and his employer has insurance coverage, it is automatic that such an individual would fall under the purview of the workers’ compensation act (“the Act”). However, there are three circumstances in which an injured worker has the right to choose between workers’ compensation coverage and a tort claim. One of those exceptions concerns the non-posting of notices in obvious, visible places in the employer’s premises that the employee can reject “the Act.” This rejection would need to be done in a timely fashion in writing after he was hired and of course before he suffered an on the job injury. This is discussed somewhat in the statutes and in the historical notes and Notes of Discussion within the statutes (see A.R.S. §23-1022(A); A.R.S. §23-906(D) and A.R.S. §23-907). It is important to note that the acceptance of compensation benefits by the injured worker despite the non-posting of notices waives his right to sue the employer. See A.R.S. §23-1024(A) [Supp. 1991]); also see Southwest Coop Wholesale v. Superior Court 13 Ariz. App. 453, 477 P.2d 572 (1970). In addition, an election to sue the employer civilly usually waives the injured worker’s right to compensation benefits. (See A.R.S. §23-1024(B) [Supp. 1991]) Of course there are exceptions to this concept and they will be dealt with subsequently. A second circumstance where an injured worker can choose to sue his employer instead of utilizing “the Act” would come into play if his employer did not have compensation insurance when he was injured. Actually, it is the easiest circumstance to use the avenue of filing a civil claim because otherwise the injured worker would have to have the Industrial Commission Special Fund pay and administer the claim if he chose workers’ compensation coverage and then subrogate against the uninsured employer. This usually takes a long time and is tedious, even though the worker has nothing to do with the subrogation of the claim. Generally, in these cases, the employer usually argues that his employee was an independent contractor or was employed by some other employer when he was injured. Hence in these cases, an injured worker usually has to go through multiple hearings over an extended period of time to obtain a favorable award. Therefore, utilizing the tort route against the uninsured employer may be the best way to go except the employer still has all the common law defenses to use against such a claim in Superior Court. The third exception is based on an employer’s willful misconduct and has been a fertile ground for litigation. The history of the willful misconduct exception with regard to the exclusivity of “the Act” applying to an on the job injury is usually strictly interpreted. Moreover, the Appellate Courts in Arizona have rejected most attempts to establish willful misconduct by an employer. (See Serna v. Statewide Contractors, Inc., 6 Ariz. App. 12, 429 P.2d 504 ). In order to meet the deliberate intent requirement to injure a worker there must be clear and convincing proof that the employer or co-employee intended the injury itself. However, that is extremely difficult to prove. In many instances an injured worker will contend that his employer or supervisor made him work with a dangerous machine or with a machine with no guards on it or on a ladder that is unsafe. That is not enough in most cases. A civil suit against an employer was successfully tried with appropriate damages being awarded to a plaintiff for intentional infliction of emotional distress because the employer’s actions were not “accidents” within the contemplation of A.R.S. §23- 1021(A). (Also see Larson on Workers’ Compensation: §65.30). A different result was reached in Irwin Investors, Inc. v. Superior Court 166 Ariz 113, 800 P.2d 979 (Ct. App. 1990) where a young female employee of a fast food restaurant was molested by an older male co-employee. The employer was sued based upon the fact that she incurred psychological problems that required active medical treatment. However, the employer was excused because he had no prior notice of his male employee having a propensity to do what he did. In Ford v. Revlon, Inc. 153 Ariz 38, 734 P.2d 580 (1987) the State Supreme Court stripped the employer in that case of the exclusive remedy of utilizing “the Act” against it without a finding of willful misconduct based upon the intentional infliction of emotional distress. The Supreme Court came to this conclusion because the employer, himself, sexually harassed his female employee. In general, the strict interpretation of “the Act” is consistent with the philosophy which is to shield employers from tort liability on all “accidental” injuries and to leave employers exposed to tort liability for most deliberate injures. In the next issue of the Attorney at Law, I will discuss instances concerning what constitutes the actual election of remedies between an injured worker applying for workers’ compensation benefits and pursuing a tort claim against his employer.
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