What Is California Labor Code §5705: Burden of Proof for Affirmative Defenses?

The burden of proof rests upon the party or lien claimant holding the affirmative of the issue. The following are affirmative defenses, and the burden of proof rests upon the employer to establish them:

What does Labor Code 5705 do?

Section 5705 decides which side has to prove certain facts in a workers' comp case.

Every disputed fact in a workers' compensation claim has to be proven by someone. Labor Code 5705 states the general rule first: whoever is asserting a position carries the burden of proving it. In most claims, that means the injured worker proves two basic facts. The worker shows an injury happened, and shows that work caused it or added to it.

The statute then reverses that rule for five specific situations. If the employer wants to use one of those five defenses to reduce or deny the claim, proving it falls on the employer, not the worker. This matters most at a hearing before the Workers' Compensation Appeals Board (WCAB). There, a workers' compensation judge weighs the evidence and decides disputed facts.

Who has to prove what under Labor Code 5705?

The worker proves the basic claim; the employer proves each defense it raises.

Think of a hearing as having two layers. First, the worker generally shows the basic elements: an injury, and a link to the job. Second, if the employer wants to shrink or knock out the claim using one of five specific arguments, proving that argument becomes the employer's job. A worker does not have to disprove these defenses before the employer even raises them.

What are the five affirmative defenses listed in section 5705?

The list covers independent-contractor status, intoxication, willful misconduct, worsening a disability, and late notice.

Labor Code 5705 names five defenses that shift the proof burden to the employer:

How does the independent-contractor defense in 5705(a) work?

A label is not proof. The employer still has to show the independent-contractor status is real.

Being told "you are a contractor, not an employee" is not, by itself, a defense. Once there is proof the injured person was actually performing work for the company at the time of the injury, that changes things. The burden then shifts under 5705(a) to the employer, who must show the person was genuinely excluded from coverage. California's main independent-contractor test, often called the ABC test, sits in a separate law, Labor Code 2775. A company that cannot meet that test cannot win this defense.

What if the employer says I was intoxicated or caused my own injury?

Intoxication and willful misconduct are two different defenses. Proving either one, on its own, is the employer's job.

Intoxication under 5705(b) asks whether being impaired caused the injury, not only whether a test came back positive. Willful misconduct under 5705(c) looks at something different. It asks whether the worker deliberately did something unsafe, not whether the worker made an honest mistake or was simply careless. Ordinary carelessness does not meet this standard. For either defense, the employer has to connect the behavior to the cause of the injury with real evidence, not assumptions.

This is a different question from Labor Code 4553, which looks at the employer's own serious and willful misconduct. That separate law can add one-half to a worker's award, plus limited costs, when an owner, partner, or manager acted recklessly. Labor Code 4553 looks at the employer's conduct; 5705(c) looks at the worker's conduct. They point in opposite directions and do not overlap.

What about worsening my injury or reporting late, under 5705(d) and (e)?

Showing real harm is the employer's job, not just pointing to a missed deadline.

Defense (d) comes up when the employer argues the worker made an existing disability worse through unreasonable conduct. One example is ignoring clear medical restrictions on purpose. The employer has to prove the conduct was unreasonable and that it actually worsened the disability. It is not enough to show that healing simply took longer than hoped.

Defense (e) comes up when a worker misses the notice deadlines in Labor Code 5400 and Labor Code 5401. Even then, the employer must show the delay caused real prejudice. That means actual harm to its ability to investigate or respond, not simply that paperwork arrived after a deadline. A short, harmless delay rarely defeats an otherwise valid claim on its own.

How does section 5705 fit into a denied or disputed claim?

5705 matters once a case is actually disputed, not at the first denial letter.

Most claims settle without ever reaching a hearing. Section 5705 becomes important once a dispute is real, usually after a denial. The case then heads toward an Application for Adjudication of Claim and a hearing before a workers' compensation judge. If you already received a denial letter, our guide on a denied workers' comp claim in California walks through what to do next.

What should I save if the employer raises one of these defenses?

Save dated records now, before details fade from memory.

Keep the incident report, witness names, and texts or emails about the injury. Also keep medical records, any drug or alcohol test paperwork, and proof of when and how you first told your employer about the injury. Write down dates while you still remember them clearly. The records that prove or disprove a 5705 defense often sit with the employer, so your own timeline and documents are what you control.

If an employer or insurer is using one of these defenses to cut or deny your benefits, talk to a licensed workers' compensation attorney. An attorney can review the paperwork and explain whether the evidence actually meets the employer's burden under section 5705. Call (661) 273-1780 or use the contact form to talk about your situation. The firm reviews each matter individually before deciding whether to take it on.