                                                                FILED BY CLERK
                          IN THE COURT OF APPEALS                  AUG 22 2006
                              STATE OF ARIZONA                     COURT OF APPEALS
                                DIVISION TWO                         DIVISION TWO




AAA CAB SERVICE, INC.,                    )
                                          )
                  Petitioner Employer,    )
                                          )
                 v.                       )         2 CA-IC 2006-0003
                                          )         DEPARTMENT B
THE INDUSTRIAL COMMISSION OF              )
ARIZONA,                                  )         OPINION
                                          )
                          Respondent,     )
                                          )
KERRI S. WAY, widow of RONALD             )
WAY, deceased employee,                   )
                                          )
               Respondent Employee,       )
                                          )
SPECIAL FUND DIVISION/NO                  )
INSURANCE SECTION,                        )
                                          )
          Respondent Party in Interest.   )
                                          )


               SPECIAL ACTION - INDUSTRIAL COMMISSION

                          ICA Claim No. 20040-750417

                      Layna Taylor, Administrative Law Judge

                              AWARD AFFIRMED
Toby Zimbalist                                                                     Phoenix

     and

Klein, Lundmark, Barberich & LaMont, P.C.
 By R. Todd Lundmark                                                              Phoenix
                                                        Attorneys for Petitioner Employer

The Industrial Commission of Arizona
 By Laura L. McGrory                                                              Phoenix
                                                                  Attorney for Respondent

Richard L. Keefe                                                                    Tucson

     and

Andrew J. Petersen                                                                  Tucson

     and

Ryan Scott Andrus                                                                Tucson
                                                      Attorneys for Respondent Employee

No Insurance Section/Special Fund Division
 By Ronald M. Andersen                                                          Phoenix
                                                         Attorney for Respondent Party in
                                                                                 Interest


E C K E R S T R O M, Presiding Judge.



¶1            Petitioner employer AAA Cab Service, Inc. challenges an industrial

commission award granting the employee’s widow, respondent Kerri Way, leave to withdraw

her claim for workers’ compensation benefits and pursue a civil cause of action against AAA.



                                             2
Because Way never accepted compensation from the industrial commission, as required to

waive her right to pursue a remedy in court, we find no error and affirm the award.

¶2            Way’s husband died while working as a taxicab driver for AAA. She filed a

wrongful death action in superior court and, a month later, filed a claim in the industrial

commission for workers’ compensation benefits. After the commission issued an award

granting Way’s claim, she sought to withdraw her claim and proceed solely with the case in

superior court. The industrial commission determined Way had elected to pursue the claim

in superior court and therefore deemed the claim withdrawn. AAA requested a hearing to

challenge the determination, arguing Way had elected to accept workers’ compensation

when the previous award granting her claim became final. The administrative law judge

(ALJ) found Way was entitled to withdraw her industrial commission claim because she had

never accepted compensation under A.R.S. § 23-1024(A). We review de novo questions of

law such as the applicability of a statute. Putz v. Indus. Comm’n, 203 Ariz. 146, ¶ 9, 51

P.3d 979, 981 (App. 2002).

¶3            AAA argues Way’s pursuit of a claim for workers’ compensation, which was

adjudicated to a final award, precludes her from pursuing a civil tort action against AAA.

AAA concedes the legislature designated a single act as creating a waiver of an injured

worker’s right to file a lawsuit against his or her employer: “accept[ing] compensation.”

§ 23-1024(A). AAA does not contend that Way has accepted compensation, but rather, that

a claimant may also waive the right to file a lawsuit under the common law doctrines of res


                                            3
judicata and election of remedies. In essence, AAA contends the waiver standard in § 23-

1024(A) supplements, but does not supplant, those common law doctrines.

¶4            “Under rules of statutory construction, if the common law is to be changed,

supplemented, or abrogated by statute, it must be done expressly or by necessary

implication.” Wyatt v. Wehmueller, 167 Ariz. 281, 284, 806 P.2d 870, 873 (1991). “If the

legislature fails to clearly and plainly manifest an intent to alter the common law, the

common law remains in effect.” Id. But, in the arena of workers’ compensation, the

legislature has promulgated a comprehensive scheme governing the right to compensation

that is wholly statutory. DKI Corp./Sylvan Pools v. Indus. Comm’n, 173 Ariz. 535, 539,

845 P.2d 461, 465 (1993) (“Workers’ compensation is a statutory scheme in which the

legislature has provided boundaries for what and how much is recoverable and when.”);

Paramount Pictures, Inc. v. Indus. Comm’n, 56 Ariz. 217, 220, 106 P.2d 1024, 1025

(1940) (“The right to compensation is purely statutory in its nature, and we must resort to

the statute to determine its extent and limitations.”). For workers’ compensation claims,

therefore, we conclude that the legislature has expressed an intent that the statutory scheme

control when that scheme conflicts with common law principles.1



       1
         We do not suggest that the legislature intended to eliminate common law principles
altogether in this arena. See, e.g., A.R.S. § 23-947(B) (incorporating res judicata into time
for filing application for compensation); see also Circle K Corp. v. Indus. Comm’n, 179
Ariz. 422, 426-27, 880 P.2d 642, 646-47 (App. 1993) (addressing extent to which workers’
compensation scheme applies and limits common law principles of claim and issue
preclusion).

                                             4
¶5            In the specific context here, the legislature has clarified its intent to abrogate

the common law doctrines of res judicata and election of remedies. The relevant statute,

§ 23-1024(A), designates only one act triggering its waiver provision—accepting

compensation. Notably, its prior language provided that a claimant waived the right to

pursue a civil tort action by either accepting compensation or making an application for an

award. 1968 Ariz. Sess. Laws, ch. 6, § 39 (amending § 23-1024); see Sw. Coop. Wholesale

v. Superior Court, 13 Ariz. App. 453, 459, 477 P.2d 572, 578 (1970) (describing effect of

1968 statutory amendment). Thus, the 1968 amendment to the statute expressed a

legislative intent to reduce rather than expand or leave unchanged the actions that can

constitute a waiver. We cannot harmonize that change with AAA’s contention that the

legislature intended to allow the common law doctrines of election of remedies and res

judicata to provide unspecified additional avenues by which the right to pursue a civil tort

action may be waived. Moreover, we have previously concluded that the 1968 amendment

to § 23-1024(A) both “‘de-waiverized’” the act of making an application for workers’

compensation benefits and rendered “acceptance of benefits the sole statutory test.” Sw.

Coop. Wholesale, 13 Ariz. App. at 459, 477 P.2d at 578.

¶6            AAA contends that application of the common law principles of res judicata

and election of remedies would serve the interests of judicial economy and fairness because

it would protect both the employer and our courts from the expense of litigating two

proceedings to judgment. But, in light of the legislative history of § 23-1024(A), we


                                              5
conclude that, if the legislature had intended a final award to constitute an election of

workers’ compensation, it would have included express language to that effect. This court

cannot write a term into the statute that the legislature did not include. See Home Builders

Ass’n of Cent. Ariz. v. City of Scottsdale, 187 Ariz. 479, 483, 930 P.2d 993, 997 (1997)

(“Where the language of a statute is clear and unambiguous, courts are not warranted in

reading into the law words the legislature did not choose to include.”); City of Phoenix v.

Donofrio, 99 Ariz. 130, 133, 407 P.2d 91, 93 (1965) (“[A] court will not inflate, expand,

stretch or extend a statute to matters not falling within its expressed provisions.”);

Bridgestone/Firestone N. Am. Tire, L.L.C. v. APS Rent-a-Car & Leasing, Inc., 207 Ariz.

502, ¶ 51, 88 P.3d 572, 584 (App. 2004) (refusing to “import[] [the appellant’s] common

law and policy arguments into the statute”).

¶7            Because the ALJ did not err by finding Way had not accepted compensation

from the industrial commission, and was therefore entitled to pursue her wrongful death

action in superior court, we affirm the award.


                                               ____________________________________
                                               PETER J. ECKERSTROM, Presiding Judge
CONCURRING:


____________________________________
J. WILLIAM BRAMMER, JR., Judge


____________________________________
PHILIP G. ESPINOSA, Judge

                                               6
