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Dunn v. Industrial Commission11/29/1991
he Arizona workers' compensation statute. A.R.S. § 23-906. Unless a worker rejects compensation, the benefits are "the exclusive remedy against the employer." A.R.S. § 23-1022(A); Bonner v. Minico, Inc., 159 Ariz. 246, 766 P.2d 598 (1988). The exclusive remedy provision immunizes the employer from wrongful death actions by a deceased worker's survivors or personal representative. Mariscal, supra. James was free to reject the workers' compensation system, but chose not to. Rose and her children are bound by his decision. Just as the compensation statutes require an employer to take the worker as he finds him, so too must a future spouse and child take the injured party as they find him, even in this situation where settlement of workers' compensation claims have released the employer from further liability. Ezell, 23 Ariz. App. at 450, 533 P.2d at 1187.
Conclusion
We affirm the ALJ's decision to dismiss for lack of jurisdiction.
HATHAWAY, Judge, dissenting:
The Arizona Constitution, Art. 18, § 8 provides that:
The Legislature shall enact a Workmen's Compensation Law . . . by which compensation shall be required to be paid to any such workman, in case of his injury and to his dependents, as defined by law, in case of his death . . . arising out of and in the course of, such employment . . . .
I cannot agree with the majority's position that James, having voluntarily elected coverage under the Arizona worker's compensation law has thereby precluded any remedy to his dependents at the time of his death. Assuming that the injuries sustained in his employment culminated in his death, a substantial period of time after the initial injury , a factor which petitioners were precluded from developing, it would appear that a definition of dependents which, at the time of death, abrogates the remedial purpose of Art. 18, § 8 of the Arizona Constitution must fail. See Alvarado v. Industrial Comm'n, 148 Ariz. 561, 716 P.2d 18 (1986). Although Arizona case law has resolved the issue against petitioners on the basis of the statutory definition of dependents, I believe Alvarado has addressed the constitutionality question. I would follow its lead to effectuate the remedial purpose of worker's compensation.
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