One of the major reasons why you need a workers’ compensation attorney is because the insurer will have one. And that attorney may well raise defenses.

Although there is a presumption that an employee’s injury is work-related, there are certain defenses that can be raised by the employer/insurer that would preclude the employee from receiving compensation for a work-related injury. If the employee has deviated from the course of employment so that the injury occurs where the employee should not be or if the employee is assuming a hazard not assumed by the employment, the injury is not compensable.

The most common defenses to a workers’ compensation claim include willful misconduct and horseplay. In order for the employer/insurer to prevail on a defense of willful misconduct, the following five factors must be present: (1) there was a company rile, regulation, or direct order in place by the employer; (2) a showing that the rule, regulation, or direct order was known by the employee; (3) the employee was informed of or should have been able to appreciate the risk of injury that could be caused by violation of the rule, regulation, or direct order; (4) the employee acted deliberately in contravention of the rule, regulation, or direct order; and (5) the injury was caused by the employee’s disregard of the rule, regulation, or direct order.

In order for the employer/insurer to prevail on a defense of horseplay, the Commission will use a balancing test based on the following factors to determine whether the defense will prevail: (1) the extent and seriousness of the deviation; (2) the completeness of the deviation, i.e., was it totally removed from the employment or was it co-mingled with the employment duties; (3) the extent to which the practice of horseplay has become an accepted part of the employment; and (4) the extent to which the routine of the employment may be expected to include horseplay. The third factor is determined using the subjective belief of the employer and employee. The fourth factor is determined using an objective standard of whether the horseplay would be accepted to a normally prudent person.

There is also an intoxication defense available to the employer/insurer. The burden of proving that the employee was intoxicated lies with the employer/insurer. A claim will be completely barred if the sole cause of the injury was the employee’s intoxication. In other words, if the only reason that the employee was injured was because they were intoxicated, it is not a compensable injury. If the most important first cause of the injury is the employee’s intoxication, but not the sole cause, the claim will not be totally barred, but the employee will only be entitled to have his or her medical benefits compensation. There will be no compensation for lost time or disability. An employer/insurer, pursuant to statute, cannot turn a failed intoxication defense into a willful misconduct defense. They are separate defenses that must be proven separately.

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