Special Fund Division/No Insurance Section v. Industrial Commission

OPINION

GEMMILL, Judge.

¶ 1 Is the election of remedies defense created by Arizona Revised Statutes (“A.R.S.”) section 23-1024(B) (1995) waived if not asserted before a determination of compensability has become final? We answer this question in the affirmative.

¶ 2 The injured worker, Richard Bombara, instituted an action for damages in superior court against his employer. The superior court action was dismissed without prejudice as to the employer, and Bombara initiated a workers’ compensation claim. The Special Fund Division/No Insurance Section of the Industrial Commission of Arizona…