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Failure to Post Exception

Let's say you were injured at work. Your first thought is: my injury is my boss' fault, can I sue my boss? Most often, the answer to that question is "probably not." As we mentioned last week, the Arizona Workers' Compensation Act is designed to protect employers from lawsuits arising from workplace injuries with few exceptions. Last week's post was about the "willful misconduct" exception.

Another exception concerns the failure to post appropriate notices in the workplace. All employers who have workers' compensation insurance are required to post -printed notices in obvious places stating that they have complied with the workers' compensation laws. The notices also have to disclose that you have a right to reject worker's compensation BEFORE an injury. If the employer has failed to post the notice and you have an industrial injury, you have the option to either collect through workers' compensation or to sue your employer in tort. Similarly, if the employer does not have opt-out forms readily available allowing you to reject the Workers' Compensation Act prior to an injury, you have the option to collect through compensation or file a civil suit.

Please be aware that by accepting workers' compensation benefits, you waive your right to sue in tort under this exception. So if there was no posting and you think you might want to sue in tort, check with an attorney before accepting compensation. In addition, it can be difficult to prove that there was no posting because often the only proof that it wasn't posted is your testimony that it wasn't posted. Sometimes the Court thinks that is enough and sometimes it doesn't. Finally, the right to recover under this exception is limited only to the injured worker. It cannot be extended to personal representatives or family members in the event of a worker's death.

There are some exceptions and nuances to this concept. If you have any questions about this subject or any other Arizona workers' compensation issues, please contact Fendon Law Firm for a free consultation.

Categories: Workers' Compensation