The founding principle of workers compensation is that an employee injured on the job can receive compensation regardless of whether the employer was at fault in any way. But what if the employer thinks the employee is at fault? Can the employee still collect?

Under the law, the answer is generally yes. The purpose of workers compensation is to get medical care to the worker regardless of the circumstances of the injury, barring, of course, employees who are intoxicated or engaging in an illegal act. By accepting workers comp, the employee generally agrees not to sue the employer for negligence. By providing workers comp, the employer tacitly agrees to the same condition.

The law is designed so that it is extremely difficult for an employer to escape a workers comp claim by making the argument that the worker is at fault. That is because the burden of proof in such a case is on the employer. In other words, while most lawsuits require the claimant to prove his or her claim to be compensated, in a workers comp case it is up to the defendant (the employer, or more typically, the insurance company of the employer) to prove why the claimant should not be compensated. And it is not enough for the employer to prove the employee was partially responsible. The employer must prove that the actions of the employee were the sole cause of the injury.

A prime example of this is the intoxication defense. Under the law, an injury resulting from the use of alcohol or drugs by the employee is not compensable. However, the employer must prove that no other factors could have caused the injury or even contributed to its occurrence including:

• Fatigue
• Stress
• Working conditions

Another available defense is that the employee intentionally disregarded a safety policy but only, the law says, if the employer can prove the policy was clearly made a requirement of employment, was enforced uniformly, and the injured employee received repeated warnings about it before the incident.