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Dunn v. Industrial Commission11/29/1991
App.1979). See A.R.S. § 23-1064(A)(3) (" natural, posthumous or adopted child under the age of eighteen years . . . and a stepchild as a natural child if dependent" are conclusively presumed dependent). For the same reason that the claim of the natural child was denied, the claims of the stepchildren must also be denied.
CONSTITUTIONALITY OF THE STATUTORY PROVISIONS
Art. 18, § 8 of the Arizona Constitution provides for workers' compensation benefits for "workman, their widows, children or dependents, as defined by law." Rose argues that her and her children's entitlements are constitutionally guaranteed and may not be interfered with by the dependency statute. Only dependents, she maintains, are subject to legislative definition. We disagree. The phrase "by law" is not limited to dependents and may address all categories of beneficiaries. Our courts have long held that " his phrase clearly stands for the proposition that the Legislature is free to define 'dependents' as it sees fit. Presumably this is what the Legislature has done in enacting A.R.S. § 23-1046 and A.R.S. § 23-1064." El Dorado Insurance Co. v. Industrial Commission, 25 Ariz. App. 617, 620, 545 P.2d 465, 468 (1976).
Rose and her children also argue that the workers' compensation statute as interpreted contravenes Article 18, § 6 of the Arizona Constitution which provides that the "right of action to recover damages for injuries shall never be abrogated . . . ." Petitioners claim that by denying them death benefits, they have lost their constitutional right to pursue other tort remedies. They cite to potential recovery for wrongful death, which they believe could be maintained but for the unconstitutional application of the statute.
In support of their position, Rose and her children rely on Alvarado v. Industrial Commission, 148 Ariz. 561, 716 P.2d 18 (1986), in which the supreme court struck down a compensation provision that purported to prohibit the widow's right to recover benefits where her right to sue had been eliminated by an election of remedies personal to her deceased spouse. However, for Alvarado to apply, the statute must operate to deprive a claimant of a cause of action before it accrues. Here, none of the petitioners has a right of action for damages. Therefore, Alvarado is simply inapplicable.
Initially we note that James's stepchildren are not eligible beneficiaries under the wrongful death statute. A.R.S. § 12-612 permits recovery for the surviving spouse, children, or parents. Stepchildren, unless adopted, are not included within the language of the statute. See A.R.S. § 14-1201. Therefore, James's stepchildren have lost nothing to which they would otherwise have been entitled.
Similarly, neither Rose nor her and James's natural child would be able to
maintain a cause of action for wrongful death. Our supreme court has ruled that a cause of action for wrongful death cannot be sustained in light of a workers' compensation election. Mariscal v. American Smelting and Refining Co., 113 Ariz. 148, 548 P.2d 412 (1976) (non-dependent parents of a deceased worker who were not entitled to death benefits were also prevented from seeking a remedy in tort). The court held that if the employee elects compensation, he thereby foregoes the right to use under employer's liability law. Id.
James voluntarily elected coverage under t
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