Suing Over a Work Injury in Arizona

Suing the employer: Arizona workers' compensation is the exclusive remedy for a work injury or death against the employer, a co-employee acting within the scope of employment, and the employer's comp insurer or administrator. The exception is an injury caused by willful misconduct, meaning an act done knowingly and purposely with the direct object of injuring another, that is the personal act of the employer (a partner, or an elective officer of a corporation) or co-employee and shows willful disregard of employee safety; the employee may then either claim compensation or sue for damages. Separately, an employer that fails to secure required coverage can be sued and loses certain defenses (see uninsured_employer).

Suing someone else: an injured worker (or dependents) may sue a negligent or wrongful third party not in the same employ. The worker must give the insurer or self-insured employer written notice of intent to sue and keep it informed of pleadings and rulings; the insurer may intervene. If no suit is filed within one year after the claim accrues, the claim is deemed assigned to the insurer or self-insured employer, which may sue or reassign it. The insurer has a lien, without collection fee, on the amount actually collected (after reasonable expenses including attorney fees) up to the benefits paid, and any settlement for less than the benefits needs the insurer's written approval.

Employer without coverage: an employer required to carry workers' comp that fails to do so can be sued by the injured employee, cannot use the defenses of assumption of risk or contributory negligence, and proof of injury is prima facie evidence of the employer's negligence. Instead of suing, the employee may apply to the Industrial Commission for compensation, which is paid from the special fund; the employer must repay with a penalty of 10% or $1,000, whichever is greater, plus interest, enforceable as a lien. The Commission may also enjoin the employer from operating and assess civil penalties up to $1,000, rising to $5,000 and $10,000 for repeat failures within five years.