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Missouri Supreme Court Eases Burden Of Proof For Retaliatory Discharge Claims

The Supreme Court reversed 16 years of precedent on a worker’s burden of proof to establish retaliatory discrimination after exercising his rights under the Missouri Worker’s Compensation Act. A worker no longer has to show that discrimination was an exclusive factor in a termination but...

Wyoming: Burden of Proof Has Two Elements: Burden of Production and Burden of Persuasion

Reminding the parties that the burden of proof consists of two elements: the burden of production and the burden of persuasion, the Supreme Court of Wyoming affirmed the denial of workers’ compensation benefits for back pain that the claimant believed was related to an earlier workplace accident...

Green v. City of Los Angeles: Refresh of Apportionment

Rejection of the Black Box Approach By Charles Edward Clark, Esq. 1 INTRODUCTION In the years since E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922 [ 71 Cal.Comp.Cases 1687 ], apportionment analysis has been plagued by the “black box”...

California: Whose Burden Is It, Anyway?

With all of the changes in the law the last few years, practitioners are finding it more difficult to determine which side has the burden of proof. Once determined, they have a difficult time finding the appropriate evidence needed to meet this burden. Set forth below is a summary of recent Noteworthy...

Contractor's Construction Fraud Implied

It is not unusual for a contractor to obtain an advance for construction work or materials. While that is done more often with residential construction, it is also done on some commercial projects or with individual subcontractors. What if they don't then follow through? Virginia makes "construction...

CA9 to Hear En Banc CAT Claim/Internal Relocation Burden of Proof Issue

"The U.S. Court of Appeals for the Ninth Circuit ordered that Maldonado v. Holder be heard en banc. The case was submitted on the briefs in December 2013, then the panel, without issuing a decision, issued this order in April: "Pursuant to General Order 5.4(c)(3), the parties are directed...

CA9 on Burden of Proof, Custody: Medina-Lara v. Holder

"For reasons to be set forth in a disposition which will follow in due course, we grant Medina–Lara’s petition for review because the government did not meet its burden to show that his California convictions constitute predicate offenses for purposes of removability under 8 U.S.C. §...

CA9 on Burden of Proof: Medina-Lara v. Holder

"The government has failed to carry its burden to show by clear and convincing evidence that Medina has been convicted of an aggravated felony or a controlled substance offense. Similarly, Supreme Court case law issued subsequent to the agency action reviewed here has foreclosed on the government’s...

Medical Evidence Alone of Inability to Compete in Open Labor Market Could Not Rebut Permanent Disability Rating: Cal. Comp. Cases October Advanced Postings (10/10/2014)

Here’s the third batch of advanced postings for the October 2014 issue of Cal. Comp. Cases. Lexis.com and Lexis Advance subscribers can link to the case to read the complete headnotes and summaries. © Copyright 2014 LexisNexis. All rights reserved. Sonia Morris , Petitioner v. Workers'...

CA7 (Posner) on Burden of Proof: Lopez-Esparza v. Holder

"Our ground for setting aside that ruling is not that the administrative law judge erred in finding that Lopez‐Esparza had failed to carry his burden of proof, but that the judge applied the wrong standard—the standard, of his invention, that imperfect recollection precludes a finding of continuous...

Illinois: Where Trier of Fact Believes Employer’s Non-Pretextual Reason for Discharge, Employee Fails to Carry His or Her Burden of Proof

The Supreme Court of Illinois held that in a retaliatory discharge action, the burden of proof is on the discharged employee to show that the employment was terminated and that the termination was in retaliation for the employee’s actions, that if an employer provides a reason for the employee’s...

Employer’s Medical Report Obtained At Own Expense Deemed Wholly Deficient: Cal. Comp. Cases January Advanced Postings (1/16/2015)

Here’s the third batch of advanced postings for the January 2015 issue of Cal. Comp. Cases. Lexis.com and Lexis Advance subscribers can link to the cases to read the complete headnotes and summaries. © Copyright 2015 LexisNexis. All rights reserved. United States Fire Insurance Company...

Defendant Entitled to Credit for Full Amount of Long-Term Disability Benefits: Cal. Comp. Cases February Advanced Postings (2/5/2015)

Here’s the second batch of advanced postings for February 2015 issue of Cal. Comp. Cases. Lexis.com and Lexis Advance subscribers can link to the case to read the complete headnotes and summaries . © Copyright 2015 LexisNexis. All rights reserved. Jessie Lee Sherrod, Petitioner v...

California: Vocational Experts and Apportionment

The Exception to Defendant’s Burden of Proof on Apportionment One of the most frequent issues pending before the WCAB lately has been how to handle apportionment to significant non-industrial causes when the applicant has successfully rebutted the Diminished Future Earning Capacity (DFEC) through...

California Workers’ Comp Case Roundup (4/6/2015)

CALIFORNIA COMPENSATION CASES Vol. 80 No. 3 March 2015 A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review CONTENTS OF THIS ISSUE © Copyright 2015 LexisNexis. All rights...

CA7 on Burden of Proof: Hernandez Lara v. Lynch

"Hernandez testified at the removal hearing that he had entered his marriage in good faith and the government offered no evidence to the contrary. Without making a credibility finding, the immigration judge determined that Hernandez’s marriage was not bona fide and ordered him removed. The...

District of Columbia: Court Construes Burden Shifting Framework Required to Pass on Employer’s Termination of Benefits Request

Where an employer has accepted a claim and paid workers’ compensation benefits, but later moves to terminate or modify those benefits, the employer has the burden of proving by a preponderance of the evidence that conditions have changed such that the claimant no longer is entitled to the benefits...

En Banc CA9 on Burden of Proof, Citizenship: Mondaca-Vega III

Is the 84-year-old petitioner a native-born U.S. citizen or a deportable Mexican? A deeply-divided en banc court denied the petition for review. Mondaca-Vega III, Dec. 15, 2015 .

Seizure Was Compensable Consequence of Industrial Head Injury: Cal. Comp. Cases July Advanced Postings (7/7/2016)

Here’s the latest batch of advanced postings for the July 2016 issue of Cal. Comp. Cases. Lexis.com and Lexis Advance subscribers can link to the case to read the complete headnotes and summaries. © Copyright 2016 LexisNexis. All rights reserved. CR England, XL Specialty Insurance...

CA6 on NACARA, Burden of Proof: Lopez v. Sessions

Lopez v. Sessions, Mar. 21, 2017 - "Marcial Lopez, a native and citizen of Guatemala, contests a decision by the Board of Immigration Appeals that prohibits him from staying in this country. Under the immigration laws, it usually counts against the individual if he enters the country free from governmental...

BIA on Bosnian War, Persecutor Bar, Evidence, Burden of Proof: Matter of M-B-C-, 27 I&N Dec. 31 (BIA 2017)

Matter of M-B-C-, 27 I&N Dec. 31 (BIA 2017) - Where the record contains some evidence from which a reasonable factfinder could conclude that one or more grounds for mandatory denial of an application for relief may apply, the alien bears the burden under 8 C.F.R. § 1240.8(d) (2016) to prove...

New York: Widow Establishes Death Benefits Claim Without § 21(1) Presumption

A state appellate court held that while it was inappropriate for the Board to apply the presumption of compensability found in N.Y. Work. Comp. Law § 21(1), given the fact that the issue was whether decedent was actually performing his duties at work when he sustained the injuries that led to his...

Washington: High Court Clarifies Standard of Proof in Occupational Disease Cases

Stressing that in Washington, the proof of medical causation related to an occupational disease does not require “magic words,” the Supreme Court of Washington affirmed a lower court decision that sustained an award of workers’ compensation benefits claimant’s occupational disease...

Ohio: Claimant Required to Show Fall Was Not Due to Idiopathic Condition

Where an employee sustained a broken hip in a fall at work, with no clear reason for the fall, but where the employee’s medical record indicated that she suffered from various medical conditions, including diabetes mellitus type II, thyroid disease, and neuropathy in her leg, it was incumbent upon...

Arkansas: No Compensation Where Fall is Due to Idiopathic Cause

The Supreme Court of Arkansas affirmed a finding by the state’s Commission that a grocery store worker had not shown that her brain injury arose out of and in the course of her employment where the worker claimed she sustained an unexplained, compensable fall and the Commission found instead that...