While workers' compensation is a "no fault" type of insurance, there are a number of defenses that our courts and legislature allow an employer or insurance carrier to raise to keep an injured worker from getting workers' compensation benefits. Listed below are a few of what are known as "affirmative defenses" to workers' compensation claims.

Late Filing of Claim or Request for Hearing

Failure to file a written claim with the Industrial Commission of Arizona within one year from the date you knew or should have known that you had a compensable workers' compensation claim will bar your right to any workers' compensation benefits. The same is true for a claim of a widow or dependents of a deceased worker. There are some exceptions but, for the most part, failure to file ends the right to any workers' compensation benefits.

Failure to timely protest a Notice of Claims Status (NCS) denying the claim will prevent you from being able to pursue the claim. As will be discussed later, all procedures in workers' compensation are controlled by documents that have time limits on them. Most measure the time limits from the date mailed and most give the injured worker 90 days to act. For example, failure to file a "Request for Hearing" within 90 days will be a defense to even a valid claim unless there is a "legal" excuse for failure to file within that 90-day period.

Failure to "Forthwith Report" Injury

If you do not notify your employer that you were injured "forthwith" (promptly or immediately) after you knew or should have known that you suffered a work related injury, which may result in your otherwise compensable claim being denied. If you can prove that your employer was not "prejudiced" either in its ability to investigate or to provide proper medical care, you may be able to defeat this defense.

Lying on Job Application

If, for example, a worker indicated on the job application that he or she had no prior back problems but in fact had a previous back injury, that misrepresentation does not prevent the worker from having a valid claim for workers' compensation even if it turns out the new injury is a back injury. (We obviously do not recommend that anyone lie on his or her job application but for the time being, until our legislature changes the law, it is not a defense to an otherwise valid workers' compensation claim.)

Violation of Company Safety Rules

There are certain instances where the company may defend a claim on the basis of a worker's failure to follow safety guidelines. Under certain circumstances those instances might defeat an otherwise valid claim. However, this is a rare occurrence. Simple negligence by an employee that causes that employee's own injury should not be a defense against a valid claim.

Self-Inflicted Injuries and Suicide

A worker who deliberately causes his or her own injury will not be paid compensation. The same is true for the worker's dependents if the worker commits suicide. Our courts have softened that position and have created an exception "(w)here the original work-connected injuries suffered by an employee results in his becoming devoid of normal judgment and dominated by a disturbance of mind directly caused by his injury and its consequence ... the self inflicted injury cannot be considered 'purposeful' ... " and would therefore be compensable.

Use of Drugs and Alcohol

In 1996, the Arizona legislature gave the employer a defense to what would normally be a "compensable claim." The law states that if it is determined that the use of drugs or alcohol by the injured employee was a "substantial contributing cause" to that employee's injury or death, the employee or their family is barred from receiving workers' compensation benefits of any kind. This new law requires that the employee submit to a drug or alcohol test immediately after the accident to hopefully prove that neither drugs or alcohol were involved in causing their injury.

Occupational Disease

Our courts have indicated: "An occupational disease is one due to causes and conditions characteristic of and peculiar to a particular employment and not the ordinary disease to which the public is exposed." Workers are covered by the "occupational disease law" in certain industries where workers often get sick because of the type of work they do. Examples would be silicosis and asbestosis. These are diseases from exposure to very fine sand or silica and exposure to asbestos particles. (Both of these diseases are rare but still occur.)

Usually it is the employer or an insurance carrier who will attempt to have a claim declared an "occupational disease" because it is easier for the employer to defend the claim and harder for the worker to get compensation benefits. Defenses include "fault" pertaining to the worker's conduct. An example of fault would be failure to use proper protective devices to prevent their illness. This is a very complicated area of the law and since it is rarely used it will not be covered in any detail here.