their injury or if the employer fails to post the notice advising an employee of the right to reject workers’ compensation, then the employee retains the right to pursue a civil lawsuit against the employer.
If an employee is injured via the “willful misconduct” of the employer or a co-worker, then the injured worker has the right to file a civil lawsuit against the employer and the co-worker who
Arizona statute defines willful misconduct as such: “If the injury is caused by the employer’s [or co-employee’s] willful misconduct,...
and the act causing the injury... indicates a willful disregard of the life, limb or bodily safety of employees...,” an employee may either seek workers’ compensation or bring an action against the employer for damages. (A.R.S. § 23-1022(A) (emphasis added). Article 18, Section 8 of the Arizona Constitution contains a similar exception: “. . . if the injury is the result of an act done by the employer or a person employed by the employer knowingly and purposely with the direct object of injuring another, and the act indicates a willful disregard of the life, limb or bodily safety of employees, then such employee may... retain the right to sue the person who injured him.”)
The statute defines “willful misconduct” as “an act done knowingly and purposely with the direct object of injuring another.” In finding “willful misconduct,” courts have required proof of “a deliberate intent to inflict injury upon the employee,” and have held this cannot be inferred from gross negligence.
An employee injured or killed on the job can find relief in two ways: (1) workers compensation or (2) directly sue the employer. In Arizona, relief comes in the form of money compensation. In each case the employee must have been injured during the daily activities of his or her work.
First, workers compensation is a type of insurance that allows employees to have their medical bills paid and receive compensation for lost wages. Compensation comes in the form of scheduled payments for a scheduled time period depending on the injury. In cases of death, the employer is required to make scheduled payments to the employee’s personal representative or children. If an employee chooses to receive workers compensation, he or she is generally no longer able to sue the employer. However, if the employer intentionally caused the injury or death, the employee maintains the right to sue the employer.
Second, the injured employee can sue the employer directly for the injury. In order to receive this relief the injured employee must inform the employer, in writing, that he or she will not be using workers compensation insurance. If the injured employee chooses to go to court, the employee will need to show the court that the employer either intentionally or negligently caused the personal injury. In order to show negligence the employee needs to show the employer had a duty to the employee and that the employer failed to meet that duty. Under an employer-employee relationship, the employer has a duty to maintain a safe working environment by providing proper training and exercising reasonable care. The employee must further show that the failure by the employer to meet that duty caused the employee’s injury.
Lastly, some injuries are more serious than others and keep the injured employee from returning to work later than expected. The more serious the injury, the greater likelihood of pain and suffering. Pain and suffering are often considered in personal injury cases. If an employee chooses to receive workers compensation, he or she typically gives up the right to receive compensation for pain and suffering.
For specific advise relative to your situation, please contact an attorney.
Andrews Law Firm handles workers compensation and personal injury matters and welcomes the opportunity to assist you in recovering what you are due if you have been in an accident.
Andrews Law, PLC can help you receive a monetary settlement after an accident based on damages you may have suffered due to the negligence of another. We handle personal injury and workers compensation matters. Contact us for a free consultation. 1-888-955-9111 or email@example.com.
by Halisi Tambuzi
Andrews Law-- Chandler Personal Injury, Workers Compensation, Real Estate and Contract Attorneys.
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At Andrews Law, PLC we help you recover what you are due whether it is an a car accident, slip and fall or another injury caused by someone's negligence. For a free consultation, contact us at 480.237.9756 or at andrewslawplc.com.
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