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Galloway v. Vanderpool6/3/2002
En Banc
ORDER REVERSED AND REMANDED TO SUPERIOR COURT WITH INSTRUCTIONS
Decision Order of the Court of Appeals, Division Two No. 2 CA-SA 02-0014
AFFIRMED
The question presented is whether the survivors of an employee who dies from a work-related injury can elect between accepting workers' compensation or pursuing a legal action when the employer failed to provide a statutorily required notice informing the employee of his or her option to reject workers' compensation. We adhere to the principle of stare decisis and hold that because Arizona's statutes make the right to elect personal, the right does not pass to a deceased employee's survivors.
I.
Frank and Cindy Castro ("the Castros") are the non dependent, surviving parents of Joshua Castro. Joshua died after a trench collapsed on him while he worked for the Galloway Construction Company, owned by Patrick and Lois Galloway ("the Galloways"). The Castros brought a wrongful death action against the Galloways for the death of their son.
The Galloways moved to dismiss the wrongful death action, arguing that under Arizona Revised Statutes (A.R.S.) section 23- 1022.A (1995), workers' compensation provided the exclusive remedy. The trial judge denied the motion to dismiss.
The Galloways filed a petition for a special action in the court of appeals. The court accepted jurisdiction and granted relief, relying on Corral v. Ocean Accident & Guarantee Corp., 42 Ariz. 213, 23 P.2d 934 (1933), and Jackson v. Northland Constr. Co., 111 Ariz. 387, 531 P.2d 144 (1975). Galloway v. Vanderpool, No. 2 CA-SA 2002-0014, at 7 11 (Ariz. Ct. App. June 3, 2002). In its concluding remarks, however, the court of appeals asked this court to revisit the holdings of Corral and Jackson. Id. We accepted review and exercise jurisdiction pursuant to Article VI, Section 5.3 of the Arizona Constitution.
II.
In most instances, Arizona's workers' compensation law provides the exclusive remedy for a worker injured or killed in a work-related accident, unless the worker rejected compensation prior to being injured. A.R.S. § 23-906.C (1995) (workers conclusively presumed to have elected compensation unless they reject compensation prior to injury ); id. § 23-1022.A (making workers' compensation the exclusive remedy). The compensation statutes, however, also include important exceptions to the general rule.
One exception applies when an employer fails to post a written notice, required by A.R.S. section 23-906.D, informing employees that they have the right to reject compensation. If an employer fails to provide the required notice, an employee is not deemed to have accepted compensation and retains the right to elect to pursue a statutory or common law remedy after his injury . Id. § 23-906.E.
The Galloways conceded, for purposes of the motion to dismiss, that they did not post the required notice. Thus, had Joshua Castro survived the trench collapse, he could have elected between accepting compensation and pursuing a legal action. Because he did not survive, his parents brought this wrongful death action, giving rise to the question whether the right to elect a remedy in the event of the employee's death passes to the employee's survivors or personal representative.
We have twice addressed this issue and twice held that the option of rejecting workers' compensation if an employer fails to post the required notice is personal to the employee and, therefore, does not pass to the employee's survivors or personal representative. Jackson, 111 Ariz. at 390, 531 P.2d at 147; Corral, 42 Ariz. at 220, 23 P.2d at 9
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