12.2.4.1 Acceptance of Benefits

• Jurisdiction: Arizona

. Much of the law considering what conduct constitutes an “election’’ has arisen in earlier cases in the context of suits against third parties. The statutes originally required an election between suing negligent third parties or receiving workers’ compensation benefits.^[71] In those cases, the courts required a “reasonable’’ or “knowing’’ election. Courts were protective of an employee’s ability to bring a tort action against a party other than the employer because of the right of action provision in Arizona Constitution article XVIII, § 6.^[72]

Such an election required the employee’s knowledge of the alternative remedy and understanding that acceptance of one waives the right to the other. Under that standard, acceptance of medical benefits alone did not constitute acceptance of “compensation’’ so as to work a waiver of the common-law right to sue the negligent third party.^[73]

However, courts have drawn a sharp distinction between the right to sue a negligent third party and the right to sue an employer given immunity from suit by virtue of the constitutional provision (Ariz. Const. art. XVIII, § 8). As a result, the courts refused to adopt a requirement of “knowing’’ or “reasonable’’ waiver into A.R.S. § 23-1024 or its predecessor.^[74] This is in accord with the legislative designation of particular conduct––the “acceptance’’ of compensation––as effecting a “statutory’’ waiver of the right to sue the employer. In the...