Workers Comp: No Need for Reassignment of Third Party Claim

Gonzalez v. Kiewit-Sundt, 678 Ariz. Adv. Rep. 9 (App. Div. I, January 23, 2014) (J. Howe)


Plaintiff was injured on the job working for a subcontractor of defendant. Plaintiff received workers compensation benefits. More than a year after the injury plaintiff attempted to obtain a reassignment of his claim from the state compensation fund but the fund refused. Plaintiff brought suit against the general contractor anyway and the defendant was granted summary judgment by the trial court which ruled absent a reassignment the plaintiff had no claim. The Arizona Court of Appeals reversed.

In arguing the case the parties relied upon a version of ARS §23-1023(B) that predated 2007 amendments. The earlier version of this statute stated any claim an injured worker receiving workers comp benefits had against a third party was "deemed assigned" to the fund a year after injury if the worker had not already filed suit. Under this version, after one year, an injured worker was required to obtain a reassignment from the fund in order to pursue the claim.

However, in 2007 the statute was amended. " The amended statute allows the carrier to file its own action if the statute of limitations on the claim is one year or if the employee's action has been dismissed for lack of prosecution. Additionally, amendments to §23-1023(C) require the employee to notify the carrier of any intention to sue a third party and to timely give the carrier notice of all pleadings and rulings in the case. The amended statute also allows the carrier to intervene in the case at any time." At the same time the language "deemed assigned" which assigned the claim to the comp carrier as a matter of law after one year was deleted by the amendment.

Accordingly, the court of appeals held that while the amended statute clearly expanded the rights of the comp carrier to pursue its own recovery, it eliminated the requirement that an injured worker obtain a reassignment after one year.

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