§ 1.1.8 THE WORKERS' COMPENSATION CONSTITUTIONAL AMENDMENT.

JurisdictionArizona

§ 1.1.8 The Workers' Compensation Constitutional Amendment. Prior to statehood, the common-law rules of contributory negligence, assumption of risk, and the fellow servant doctrine were applicable to employment injuries, with the result that injured workers were frequently left without compensation for work-related injuries.154 Although a workers' compensation provision was approved by the Constitutional Convention, the constitutionality of the Act was not without question. The Arizona provision was patterned after the New York compensation act passed in 1910. The New York act had been declared unconstitutional in Ives v. South Buffalo Railway Co.155 while the convention was in progress. Undeterred, Labor was able to secure passage of a workers' compensation act in spite of its potential infirmities.156

Under the initial compensation act, an employee had three options that could be exercised after an injury occurred: (1) sue the employer under the common law stripped of the common-law defenses of the fellow servant rule, with the right to have the defenses of assumption of risk and contributory negligence left to the jury; (2) in hazardous occupations, sue under the Employer's Liability Law with employee negligence as the only employer defense; or (3) elect to enforce compulsory compensation without fault.157 The public was dissatisfied with this system because "in cases where the employer did not settle the matter voluntarily, [it] left the determination of liability and the amount of compensation to the ordinary judicial proceedings with their well known formality, delay and costs."158

In 1917, the United States Supreme Court gave its approval to compulsory and elective workers' compensation acts.159 The Arizona Legislature enacted a new Workmen's Compensation Law160 in 1921, which required the worker to elect before an injury occurred whether to accept workers' compensation or to retain the right to sue. If a worker did not make an election prior to the injury, it was "conclusively presumed" that the worker elected to take compensation under the Workmen's Compensation Law. The Act was declared unconstitutional in Industrial Commission v. Crisman161 on the basis that it violated article XVIII, section 8 of the Arizona Constitution and the Supreme Court's prior holding in Ujack, which permitted the worker to elect after he was injured. Justice Baker, although concurring with the result in Crisman, suggested that a constitutional amendment should be enacted to cure what were perceived to be the evils of the system in place. He cited a decision of the Montana Supreme Court:162

Whatever may be the reason therefor, actions for damages for personal injury and death have increased enormously in the past few years. It is notorious that but a small proportion of the moneys forced from the employer in these cases finds its way into the pockets of the plaintiff. The remainder is frittered away in payment of counsel fees, witness fees, court costs, and other necessary expenses of litigation. . . . These cases are prolific of perjury and subornation of false swearing. . . . Personal injury cases breed class hatred, as between capital and labor, in its most virulent form.

In 1925, the legislature enacted the Workmen's Compensation Act,163 as a prospective act. As suggested in Crisman, a constitutional amendment was successfully...

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