Hacker v. Industrial Commission

758 P.2d 662, 157 Ariz. 391, 13 Ariz. Adv. Rep. 75, 1988 Ariz. App. LEXIS 266
CourtCourt of Appeals of Arizona
DecidedJuly 26, 1988
DocketNo. 1 CA-IC 3850
StatusPublished

This text of 758 P.2d 662 (Hacker v. Industrial Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hacker v. Industrial Commission, 758 P.2d 662, 157 Ariz. 391, 13 Ariz. Adv. Rep. 75, 1988 Ariz. App. LEXIS 266 (Ark. Ct. App. 1988).

Opinion

OPINION

HAIRE, Judge.

In this review of an Industrial Commission award denying a surviving spouse’s claim for death benefits, we must determine whether her deceased husband [392]*392effectively rejected workers’ compensation coverage before the occurrence of his industrial injury and subsequent death. Specifically, we must decide whether the deceased corporate employee, who was also the owner and president of the corporate employer, was required to give a notice in writing in compliance with A.R.S. § 23-906 (Supp.1987), in order to effectively reject coverage under the workers’ compensation act. We conclude that compliance with the statute is mandatory, and, accordingly, set aside the award denying the surviving spouse’s claim.

In January 1987, the petitioner (surviving spouse) filed a surviving spouse’s workers’ compensation claim for the work-related death of her husband. The respondent carrier (carrier) denied this claim on the basis that the husband, as president of the insured employer, had elected to reject coverage of corporate officers when the corporation purchased its workers’ compensation insurance policy. The surviving spouse protested the denial of this claim and, thereafter, a hearing was conducted before an administrative law judge to determine the correctness of the carrier’s denial.

There was sharply conflicting testimony concerning the transaction between the corporation and the insurance carrier. The administrative law judge rejected the surviving spouse’s version of these transactions, and accepted the carrier’s version, which we summarize as follows.

For several years, the husband operated a sole proprietorship repairing trailers. During that time, he did not have workers’ compensation coverage for himself.1 In July 1985, the business was incorporated as M & R Trailer Services, Inc., (the corporation). The husband and his surviving spouse were the sole owners of the corporation and they elected him president. The husband continued to do repair work as before, and the officers authorized the corporation to pay him a salary. The corporation also had other employees.

Testimony was presented by the carrier to the effect that in November 1985, the surviving spouse called her insurance broker concerning the incorporation of the business and the necessity of obtaining workers’ compensation insurance. This inquiry was referred to the managing agent, who met with the husband and his surviving spouse on November 6, 1985. At that time, the surviving spouse and her husband elected to exclude themselves from coverage under the workers’ compensation policy, and the agent prepared an application reflecting this intent. The surviving spouse and the agent met again on November 26, 1985. At that meeting, the surviving spouse reaffirmed the exclusion, and other minor changes were incorporated in a new application. On December 3,1985, the surviving spouse tendered a check for one-quarter of the estimated premium, and the broker issued an insurance binder. By mid-December 1985, a standard form insurance policy and endorsements had been delivered to the insured. The policy provided that the carrier would “pay promptly when due the benefits required of ... [the corporation] by the workers’ compensation law.” It also provided that “[t]erms of this insurance that conflict with the workers’ compensation law are changed by this statement to conform to that law.” One of the endorsements expressly excluded coverage for all corporate officers and further provided that the corporation would “reimburse us for any payment we must make because of bodily injury to such [excluded] persons.”

The husband never signed a notice formally rejecting workers’ compensation benefits before his fatal accident, which occurred on February 19, 1986. Approximately ten months after his death, the corporation changed its insurance carrier to the State Compensation Fund. The corporation again requested coverage which would exclude the surviving spouse. At that time, the State Compensation Fund advised her that in order to reject coverage, she would have to sign a written no[393]*393tice in the form required by A.R.S. § 23-906(B). After learning of this statutory requirement, she filed the claim that is the subject of these proceedings..

Based on the evidence presented, the administrative law judge denied compensation. He concluded that compliance with the statutory requirements was unnecessary in this particular case because the employer had adequate notice of the employee’s intention to reject the act due to the practical identity of the corporate employer and the president-employee. After he affirmed his decision on administrative review, the surviving spouse sought review by this court.

On review, the surviving spouse asserts that A.R.S. § 23-906 prescribes an exclusive procedure for the rejection by an employee of workers’ compensation coverage. She therefore contends that her husband could not have effectively rejected workers’ compensation coverage by procuring, in his capacity as the corporation’s president, a workers’ compensation policy that expressly excluded corporate officers. Since the deceased was an employee as well as an owner and officer of the corporation, she argues that he was entitled to workers’ compensation benefits because it is undisputed that he did not sign a notice rejecting coverage as required by the statute. Accordingly, she urges that her claim for survivor’s benefits should have been accepted.

The statutory language strongly supports her argument. In relevant part, A.R. S. § 23-906 (Supp.1987) provides:

“A. Employers who comply with the provisions of § 23-961 or 23-962 as to securing compensation, and the employers’ workers’ compensation insurance carriers or administrative service representatives, shall not be liable for damages at common law or by statute, except as provided in this section, for injury or death of an employee wherever occurring, but it shall be optional with employees to accept compensation as provided by this chapter or to reject the provisions of this chapter and retain the right to sue the employer as provided by law.
“B. The employee’s election to reject the provisions of this chapter shall be made by a notice in writing, signed and dated by him and given to his employer, in duplicate in substantially the following form:
“To (name of employer):
“You are hereby notified that the undersigned elects to reject the terms, conditions and provisions of the law for the payment of compensation, as provided by the compulsory compensation law of the state of Arizona, and acts amendatory thereto.
“C. The notice shall be filed with the employer prior to injuries sustained by the employee, and within five days the employer shall file with his insurance carrier the notice so served by the employee. All employees shall be conclusively presumed to have elected to take compensation in accordance with the terms, conditions and provisions of this chapter unless the notice in writing has been served by the employee upon his employer prior to injury.” (Emphasis added.)

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Cite This Page — Counsel Stack

Bluebook (online)
758 P.2d 662, 157 Ariz. 391, 13 Ariz. Adv. Rep. 75, 1988 Ariz. App. LEXIS 266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hacker-v-industrial-commission-arizctapp-1988.