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SPECIAL FUND v. INDUSTRIAL COM'N OF ARIZONA

No. 1 CA-IC 09-0084.

250 P.3d 564 (2011)

SPECIAL FUND DIVISION/NO INSURANCE SECTION, Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Richard Bombara, Respondent Employee, J A R Inc. dba Jet Action Rental, Respondent Employer.

Court of Appeals of Arizona, Division 1, Department B.

March 8, 2011.

Attorney(s) appearing for the Case

Special Fund Division By Rachel C. Morgan, Phoenix, Attorney for Petitioner.

Robert E. Wisniewski, P.C. By Robert E. Wisniewski, Phoenix, Attorneys for Respondent Employee.

The Industrial Commission of Arizona By Andrew F. Wade, Chief Counsel, Phoenix, Attorney for Respondent.

Udall, Shumway & Lyons, P.L.C., By Clark R. Richter, Mesa, Attorneys for Respondent Employer.

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...

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