Issue link: http://www.e-digitaleditions.com/i/83215
X. Most Commonly Raised Defenses In reviewing claims for compensability, it is often helpful to review a check-list of possible issues that may bar acceptance of the claim. The following is a list of the most commonly raised defenses. It is not an exhaustive list. If you believe a claim should be denied for other reasons, we encourage you to call for further advice specific to your factual situation. 1. 2. Not an employee or statutory employee. No injury by accident. a) b) The incident did not occur as alleged. The employee was not in the course of the employment (e.g., the employee was coming to or going from work and no exception applies or the employee abandoned his employment for a purely personal endeavor that was not for the employer's benefit). c) d) e) f) g) The injury did not arise out of a risk peculiar to the employment. The injury arose out of cumulative trauma or repetitive motion. The employee did not suffer a sudden, structural or mechanical change in his body. If the condition pre-existed the incident, the incident did not aggravate or accelerate the pre-existing condition. There must be further injury and not merely an increase in symptoms. The injury was the known and expected result of the claimant's violation of work restrictions previously imposed by claimant's physician and unknown to the employer, or, the injury was the result of a risk he created of his own choosing. 3. 4. 5. 6. 7. The injury was caused by intoxication. The injury was caused by the employee's willful misconduct through a violation of a known and enforced safety rule, or violation of a statute. No compensable occupational disease or ordinary disease of life. Failure to cooperate with vocational rehabilitation. Failure to market residual capacity.