A. If an employee who is entitled to compensation under this chapter is injured or killed or further aggravates a previously accepted industrial injury by the negligence or wrong of another person not in the same employ, the injured employee, or in event of death the injured employee's dependents, may pursue the injured person's remedy against the other person.
B. If the employee who is entitled to compensation under this chapter or the employee's dependents do not pursue a remedy pursuant to this section against the other person by instituting an action within one year after the cause of action accrues, or if after instituting the action, the employee or the employee's dependents fail to fully prosecute the claim and the action is dismissed, the claim against the other person is deemed assigned to the insurance carrier or self-insured employer and all of the following apply:
1. The insurance carrier or self-insured employer may institute an action against the other person.
2. Any dismissal that is entered for lack of prosecution of an action instituted by the employee or the employee's dependents shall not prejudice the right of the insurance carrier or self-insured employer to recover the amount of benefits paid.
3. If the statute of limitations of the claim is one year after the cause of action accrues, the insurance carrier or self-insured employer may file the action prior to one year after the cause of action accrues.
4. The claim may be prosecuted or compromised by the insurance carrier or the person liable for the self-insured employer or may be reassigned in its entirety to the employee or the employee's dependents. After the reassignment, the employee who is entitled to compensation, or the employee's dependents, shall have the same rights to pursue the claim as if it had been filed within the first year.
C. The employee or the employee's dependents shall provide the insurance carrier or the self-insured employer written notice of the intention to bring an action against a third party and shall provide to the insurance carrier or self-insured employer timely and periodic notice of all pleadings and rulings concerning the status of the pending action. In any action instituted by the employee or the employee's dependents, the insurance carrier or the self-insured employer shall have the right to intervene at any time to protect the insurance carrier's or the self-insured employer's interests.
D. If the employee proceeds against the other person, compensation and medical, surgical and hospital benefits shall be paid as provided in this chapter and the insurance carrier or other person liable to pay the claim shall have a lien on the amount actually collectable from the other person to the extent of such compensation and medical, surgical and hospital benefits paid. This lien shall not be subject to a collection fee. The amount actually collectable shall be the total recovery less the reasonable and necessary expenses, including attorney fees, actually expended in securing the recovery. In any action arising out of an aggravation of a previously accepted industrial injury, the lien shall only apply to amounts expended for compensation and treatment of the aggravation. The insurance carrier or person shall contribute only the deficiency between the amount actually collected and the compensation and medical, surgical and hospital benefits provided or estimated by this chapter for the case. Compromise of any claim by the employee or the employee's dependents at an amount less than the compensation and medical, surgical and hospital benefits provided for shall be made only with written approval of the insurance carrier or self-insured employer liable to pay the claim.
E. For purposes of this section, the commission shall have the same rights as an insurance carrier or self-insured employer.
Notes of Decisions
Chevron Chem. Co. v. Superior Court, 641 P.2d 1275 (Ariz. 1982).
· cites it 25× “2176, which amends A.R.S. § 23-1023, unconstitutional in that it denies petitioners’ due process of law by reviving claims purportedly barred by our decision in Ross, supra? The facts necessary for a determination of these questions are as follows.”
Travelers Ins. v. Breese, 675 P.2d 1327 (Ariz. Ct. App. 1983).
· cites it 51× “Travelers’ complaint alleges that “[pjursuant to the [Election of Remedies] agreement and A.R.S. § 23-1023, Travelers acquired a lien for the amount of benefits paid, against any monies [the Breeses] might recover in an action against the responsible third parties.”
Hobson v. Mid-Century Ins., 19 P.3d 1241 (Ariz. Ct. App. 2001).
· cites it 22× “¶ 1 In these two cases, consolidated for appeal, the trial courts ruled as a matter of law that A.R.S. § 23-1023(0 does not permit an order compelling a workers’ compensation lienholder to pay, from the amount it is paid on account of its statutorily prescribed lien, an…”
Warner v. Sw. Desert Images, LLC, 180 P.3d 986 (Ariz. Ct. App. 2008).
· cites it 19× “Warner argues we should vacate the Rule 68 sanctions awarded to SDI because she lacked the authority to accept the offer in light of the fact that she had received workers’ compensation benefits and the carrier had a lien to that extent against any recovery pursuant to A.R.S. §…”
Rowland v. Great States Ins., 20 P.3d 1158 (Ariz. Ct. App. 2001).
· cites it 17× “When Rowland later settled the third-party claim, Great States claimed a lien, pursuant to A.R.S. § 23-1023(0, in the amount of $1,140.”
Lavello v. Wilson, 722 P.2d 962 (Ariz. Ct. App. 1985).
· cites it 50× “The court held this contractual waiver applied both to the carrier’s subrogation rights under A.R.S. § 23-1023(B) and to its lien rights under A.”
Bohn v. Indus. Com'n of Arizona, 984 P.2d 565 (Ariz. Ct. App. 1999).
· cites it 74× “Although the Special Fund had denied compensability, this determination was not final because Bohn sought special action review in this Court. The Special Fund's obligation to assert noncompliance with A.”
Aitken v. Indus. Comm'n, 904 P.2d 456 (Ariz. 1995).
· cites it 17× “A Constitutionality of AR.S. § 23-1023 [1-3] We “usually will not determine the constitutionality of a statute when the case can be decided without ruling upon such question.”
Mannel v. Indus. Com'n of Arizona, 688 P.2d 1045 (Ariz. Ct. App. 1984).
· cites it 25× “This is a special action review of an Industrial Commission award granting death benefits, but subjecting them to the compensation insurer’s credit from an A.R.S. § 23-1023 lien on specified proceeds from the employee’s settlement of his claim with the third party tortfeasor.”
Moretto v. Samaritan Health Sys., 947 P.2d 917 (Ariz. Ct. App. 1997).
· cites it 30× “The court also stated that “the applicability of § 23-1023 depends by its terms not on the nature of the injury-producing event, but rather on the employee’s entitlement to compensation,” and distinguished the consequences of a “separate, nonindustrial event,” to which…”
Grim v. Anheuser-Busch, Inc., 740 P.2d 487 (Ariz. Ct. App. 1987).
· cites it 64× “A.R.S. § 23-1023 designates the procedure whereby injured employees or their compensation providers can recover against third party tort-feasors.”
Stout v. State Comp. Fund, 3 P.3d 1158 (Ariz. Ct. App. 2000).
· cites it 26× “The Arizona Supreme Court in Aitken first explained that if an injured employee who has collected workers’ compensation benefits successfully recovers against a third party who caused or contributed to the injury, A.R.S. § 23-1023(0 allows the employer or its carrier to place a…”
— Ariz. Rev. Stat. § 23-1023(0) — 17 cases
Hobson v. Mid-Century Ins., 19 P.3d 1241 (Ariz. Ct. App. 2001).
“¶ 1 In these two cases, consolidated for appeal, the trial courts ruled as a matter of law that A.R.S. § 23-1023(0 does not permit an order compelling a workers’ compensation lienholder to pay, from the amount it is paid on account of its statutorily prescribed lien, an…”
Stout v. State Comp. Fund, 3 P.3d 1158 (Ariz. Ct. App. 2000).
“The Arizona Supreme Court in Aitken first explained that if an injured employee who has collected workers’ compensation benefits successfully recovers against a third party who caused or contributed to the injury, A.R.S. § 23-1023(0 allows the employer or its carrier to place a…”
Aitken v. Indus. Comm'n, 904 P.2d 456 (Ariz. 1995).
“A Constitutionality of AR.S. § 23-1023 [1-3] We “usually will not determine the constitutionality of a statute when the case can be decided without ruling upon such question.”
Travelers Ins. v. Breese, 675 P.2d 1327 (Ariz. Ct. App. 1983).
“Travelers’ complaint alleges that “[pjursuant to the [Election of Remedies] agreement and A.R.S. § 23-1023, Travelers acquired a lien for the amount of benefits paid, against any monies [the Breeses] might recover in an action against the responsible third parties.”
— Ariz. Rev. Stat. § 23-1023(A) — 32 cases
Travelers Ins. v. Breese, 675 P.2d 1327 (Ariz. Ct. App. 1983).
“Travelers’ complaint alleges that “[pjursuant to the [Election of Remedies] agreement and A.R.S. § 23-1023, Travelers acquired a lien for the amount of benefits paid, against any monies [the Breeses] might recover in an action against the responsible third parties.”
— Ariz. Rev. Stat. § 23-1023(B) — 37 cases
Chevron Chem. Co. v. Superior Court, 641 P.2d 1275 (Ariz. 1982).
“2176, which amends A.R.S. § 23-1023, unconstitutional in that it denies petitioners’ due process of law by reviving claims purportedly barred by our decision in Ross, supra? The facts necessary for a determination of these questions are as follows.”
Grim v. Anheuser-Busch, Inc., 740 P.2d 487 (Ariz. Ct. App. 1987).
“A.R.S. § 23-1023 designates the procedure whereby injured employees or their compensation providers can recover against third party tort-feasors.”
Moretto v. Samaritan Health Sys., 947 P.2d 917 (Ariz. Ct. App. 1997).
“The court also stated that “the applicability of § 23-1023 depends by its terms not on the nature of the injury-producing event, but rather on the employee’s entitlement to compensation,” and distinguished the consequences of a “separate, nonindustrial event,” to which…”
— Ariz. Rev. Stat. § 23-1023(C) — 52 cases
Rowland v. Great States Ins., 20 P.3d 1158 (Ariz. Ct. App. 2001).
“When Rowland later settled the third-party claim, Great States claimed a lien, pursuant to A.R.S. § 23-1023(0, in the amount of $1,140.”
Bohn v. Indus. Com'n of Arizona, 984 P.2d 565 (Ariz. Ct. App. 1999).
“Although the Special Fund had denied compensability, this determination was not final because Bohn sought special action review in this Court. The Special Fund's obligation to assert noncompliance with A.”
— Ariz. Rev. Stat. § 23-1023(C)(1981) — 1 case
— Ariz. Rev. Stat. § 23-1023(D) — 12 cases
Warner v. Sw. Desert Images, LLC, 180 P.3d 986 (Ariz. Ct. App. 2008).
“Warner argues we should vacate the Rule 68 sanctions awarded to SDI because she lacked the authority to accept the offer in light of the fact that she had received workers’ compensation benefits and the carrier had a lien to that extent against any recovery pursuant to A.R.S. §…”
— Ariz. Rev. Stat. § 23-1023(c) — 1 case
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