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DEFENSES

Labor Code §3600 provides that liability for compensation exists where certain conditions of compensation concur. It gives rise to a multitude of defenses and needs to be read in conjunction with Labor Code §5705, which defines the affirmative defenses:

The burden of proof rests upon the party or lien claimant holding the affirmative of the issue. The following are affirmative defenses, and the burden of proof rests upon the employer to establish them:
   (a) That an injured person claiming to be an employee was an independent contractor or otherwise excluded from the protection of this division where there is proof that the injured person was at the time of his or her injury actually performing service for the alleged employer.
   (b) Intoxication of an employee causing his or her injury.
   (c) Willful misconduct of an employee causing his or her injury.
   (d) Aggravation of disability by unreasonable conduct of the employee.
   (e) Prejudice to the employer by failure of the employee to give notice, as required by Sections 5400 and 5401

That a condition was not arising out of and in the course of employment (AOE-COE) or the claimant was not an employee (see Employment) are defenses that can be adjudicated at an Expedited Hearing.

To prove intoxication, defendant must prove that the worker was intoxicated and that was what caused the injury. Just being intoxicated is not sufficient to avoid liability. "We conclude that the California employer is required to establish that intoxication is a proximate cause or substantial factor in bringing about an accident resulting in death, and further, that this record supports the board's determination that such causation was shown. Causation is a question of fact unless the issue is so clear that reasonable minds could not differ." Smith v. WCAB (1981) 123 Cal.App.3d 763

In a writ-denied case, the worker severed his hand (which was later reattached); he tested positive for cocaine, codeine, and methamphetamine. The WCJ found defendants did not meet the burden of proof. Recon was denied. "The WCAB majority stated: In meeting its burden in this regard, it is not sufficient for the defendant to show that applicant tested positive for the above-referenced substances. The inquiry does not end there. Defendant must also establish that the employee was "intoxicated" and that said intoxication was a substantial cause of the industrial injury." Pirelli Armstrong Tire Corp v. WCAB (1999) 64 Cal. Comp. Cases 1311.

"Where the injury does not arise out of an altercation in which the injured employee is the initial physical aggressor" (see  Labor Code §3600(a)(7)) was explored in Mathews v. WCAB (1972) 6 Cal.3d 719. The Supreme Court held that the one "who first introduces an element of physical violence into the confrontation, thus creating the risk of injury," is the initial aggressor, and "Later acts of his opponent, which unjustifiably increase the level of violence, do not absolve the initial aggressor."

The post-termination defense is defeated if the injured worker "demonstrates by a preponderance of the evidence that one or
more of the following conditions apply:
   (A) The employer has notice of the injury, as provided under Chapter 2 (commencing with Section 5400), prior to the notice of termination or layoff.
   (B) The employee's medical records, existing prior to the notice of termination or layoff, contain evidence of the injury.
   (C) The date of injury, as specified in Section 5411, is subsequent to the date of the notice of termination or layoff, but
prior to the effective date of the termination or layoff.
   (D) The date of injury, as specified in Section 5412, is subsequent to the date of the notice of termination or layoff." [a CT ]

Further, the post-termination defense under Labor Code §3600(a)(10) does not apply when a voluntary resignation precedes the date of injury. CJS Co. WCAB (Fong) (1999) 74 Cal.App.4th 294

In psychiatric claims, Labor Code §3208.3(e) governs post-termination claims.

Label Item Links Comments
Labor Code Liability for compensation exists where certain conditions of compensation concur LC §3600  
Burden of proof, affirmative defenses

Post-termination defense in psychiatric claims
LC §5705

LC §3208.3(e)
 
Regulations/Rules  
Cases  United States Fidelity & Guaranty Co. v. IAC (1917)  174 Cal. 616: "Willful misconduct involves something more than negligence and it does not even include every violation of a rule."

"Initial physical aggressor" is the one "who first introduces an element of physical violence into the confrontation, thus creating the risk of injury. Later acts of his opponent, which unjustifiably increase the level of violence, do not absolve the initial aggressor.” Mathews v. WCAB (1972) 6 Cal.3d 719

"We conclude that the California employer is required to establish that intoxication is a proximate cause or substantial factor in bringing about an accident resulting in death, and further, that this record supports the board's determination that such causation was shown. Causation is a question of fact unless the issue is so clear that reasonable minds could not differ." Smith v. WCAB (1981) 123 Cal.App.3d 763




Mathews v. WCAB






Smith v. WCAB

 
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