This is one of the most common questions asked by someone who was hurt while on the job. If the injury was caused by your employer or a co-worker then in most cases, the answer is no. The very limited exceptions to the general rule that workers’ compensation is your “exclusive remedy” are discussed below.
One exception applies if your employer did not have workers’ compensation insurance at the time of your injury. In this situation you may elect to receive workers’ compensation benefits through the Special Fund Division/No Insurance section of the Industrial Commission of Arizona or you may elect to file a civil suit against your employer under Arizona common law. But you can not elect to do both. For example, if you receive compensation through the Special Fund then you will not be permitted to also sue your employer for “negligence”. The decision to reject workers’ compensation benefits through the Special Fund and elect to file a civil law suit has benefits but it also has significant risks. This decision should not be made before consulting with a qualified attorney.
You have the right to reject coverage under the Arizona workers’ compensation system but you must do so in writing and before the occurrence of your injury. If you rejected coverage before your injury then you do have the right to sue your employer or co-worker for negligence. This is a very risky choice to make and should be done only after careful consideration and consultation with an attorney.
You retain the right to sue your employer or co-worker if they did something “knowingly and purposely with the direct object of injuring (you)”. But you can’t sue your employer/co-worker simply because they intentionally performed some act that ended up causing your injury. Rather, the employer/co-worked had to perform the act with the specific intent that the result would be you getting hurt. This exception applies only in very rare situations.
As discussed above, you have the right to reject workers’ compensation coverage and your employer is supposed to post notices informing you of this right and make rejection forms available. If your employer violated this requirement you may have the right to elect a civil law suit. Again, this is an election that should be made only after careful consideration of the pros/cons and consultation with an attorney.
Please note that the general rule prohibiting a civil suit and these examples do not apply to a “third party” claim. In other words, if your on-the job injury was caused by the negligence of someone other than your employer/co-worker you retain to the right to seek both workers’ compensation benefits and pursue a civil law suit.
In any event you should seek out competent legal counsel to determine if workers’ compensation is your exclusive remedy or whether you have the option to pursue a civil suit in the alternative to or in addition to receiving benefits under the workers’ compensation system in Arizona.
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