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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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