Morgan’s Tip of the Week – Ping Pong


“Burden of proof” is one of those legal terms we defense attorneys throw around, but I have had the issue come up recently on compensability questions so thought it would make a good tip.

Basically, it means who has to prove what.  Think of the game of ping pong…if you have the ball, you have the burden of landing it on the table.  If you don’t, the other side wins by doing nothing.

Here’s the rather boring Black’s Law definition:

Burden of proof refers to the duty on a party in a case to submit sufficient evidence on an issue in order to avoid dismissal of the claim. In a criminal trial the burden of proof required of the prosecutor is to prove the guilt of the accused “beyond a reasonable doubt”.

In our WC world, the burden effects the benefits and our defenses. Our burdens are nowhere near as high as beyond reasonable doubt, most of our standards are the preponderance of the evidence (JCC has to think more likely than not, 51%, we are correct).  A few things in the statute have Clear and Convincing burden standard, which is in between the two.   Its not a legal measure, but if beyond a reasonable doubt is you have to be 99.9% sure, and preponderance is 51% sure, I think of clear and convincing as you have to be 75% sure for the person who has the ping pong ball to be right.  This applies to overturning an EMA and psych benefits. 

In general, the claimant has the initial burden to timely report an accident in the course and scope and arising out of employment, and to prove the accident is the major contributing cause of the need for every benefit.

Once they do that, the ball is on our side of the net. 

Specifically, for the defenses of Idiopathic, Statute of Limitations and Misrep/Fraud, we have the burden of proof.  If we don’t prove it, we don’t land the ball on the table, the claimant wins.

Idiopathic is one where this comes up a lot.  This is a defense saying the accident does not arise out of employment, it could have happened any time any place, and WE have to prove that is the case.   Clumsiness is compensable, unless you can show a non-work related cause for it.  It has to be an internal failure or personal health condition that is preexisting that caused the accident.   If we can’t find the non-work related reason their ankle gave out while walking down the hallway, we can’t prove it could have happened any place or any time, and we lose.  We have to land the ball on their side of the table.  If we miss, we lose.

In a Statute of Limitations defense, it is also our burden to prove the SOL ran, and that the claimant had knowledge of their rights and the SOL.  It is important for you to confirm with the claimant that they received the initial packet with the WC brochure that provides that information.  Document your conversation in your notes.  And remember, you MUST use the SOL as a defense in your DWC-12 and the PFB response, the first responsive pleading, or you waive the SOL defense.   If we can’t prove the claimant received the initial packet, we often will lose the SOL defense.

Same with the misrep/fraud defense.  We have the ball and have to prove the claimant violated the statute.  That is why it is sometimes better to wait and have a few instances of misrep, rather than just one lie in a recorded statement.  And we have to prove it, we have to make sure we can obtain the admissible evidence to show it was a lie.  One lie is easy to explain away, several, and we have a better shot at proving it.

Hope this helps you.    

Morgan Indek | Partner