An affirmative defense operates as a bar to the injured worker’s claim of injury AOE/COE. The defendant has the burden of establishing an affirmative defense per LC §3202.5. Why is it so difficult to prevail on affirmative defenses?
- The WC system is designed for the purpose of providing benefits to the injured worker per the liberal construction of LC §3202.
- Affirmative defenses can be found in LC §3600(a)(4) through LC §3600(a)(10).
- Affirmative defenses must generally be raised at the MSC, otherwise they may be considered waived!
- Consider but don’t rely on the Answer to Application, a letter placing the applicant on notice of the affirmative defense to be raised, a conservative WCJ, etc.