Know Your Burden
| Publication year | 2022 |
| Author | THE HON. PAMELA PULLEY |
THE HON. PAMELA PULLEY
SANTA ANA, CALIFORNIA
Disclaimer: The views and the opinions expressed in this article are the author's own and do not represent the position of the Department of Industrial Relations, the Division of Workers' Compensation, the Workers' Compensation Appeals Board or any judge within the DIR or DWC. This article is not intended to be used as legal advice, and each case or circumstance is unique. The outcome of every case is dependent on its own set of facts.
Being on the bench gives judges a unique perspective on litigating workers' compensation cases. We become both observers of and participants in an action but never entirely one or the other. Each party is vying to persuade the judge of their position's relative merit. In court, that translates to putting on the best case possible. The winning party is invariably the one that knows the strengths and weaknesses of both their case and their opponent's. A significant part of that is understanding the burden of proof, knowing who carries it and understanding when it is or is not met.
What is a burden of proof? Think of it as not a burden but a responsibility. The burden of proof is the responsibility of a party to a case to produce evidence to prove their claim. Labor Code section 3202.5 states:
All parties and lien claimants shall meet the evidentiary burden of proof on all issues by a preponderance of the evidence in order that all parties are considered equal before the law.
Preponderance of the evidence means evidence that, when weighed against that opposed to it, has more convincing force and greater probability of truth. Labor Code section 5705 states: "The burden of proof rests upon the party or lien claimant holding the affirmative of the issue."
The following sections explore the burden of proof as it applies to issues we commonly encounter in our practice.
It is well settled that, in proceedings before the Workers' Compensation Appeals Board, the allegedly injured employee has the initial burden of proving, by a preponderance of evidence, that their injury arose out of and occurred in the course of employment. The case of McAllister v. Workmen's Comp. Appeals Bd (1968) 69 Cal.2d 408 is often cited for this established principle.
Briefly, in McAllister, the petitioner was the widow of a firefighter who died of lung cancer while working for the City and County of San Francisco Fire Department. The defendant denied liability for the decedent's death and the matter proceeded to trial. Of note, this case predated the 1982 enactment of Labor Code section 3212.1, which provides a rebuttable presumption that active firefighting members who are employed by...
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