Proof: Burden of Proof: Affirmative Defenses

Uffalussy v. St. Patrick Hospital [11/06/07] 2007 MTWCC 45 Where three physicians expressed opinions that Petitioner’s cognitive impairment was related to her 1997 industrial injury based on their opinions that Petitioner’s head injuries, depression, and chronic pain contributed to the collective cause of her cognitive impairment, the burden of proof shifted to Respondent. Although Petitioner reported to emergency room personnel that she “thinks” she hit the back of her head at the time of the MVA, she reported no loss of consciousness, no bumps or lacerations on her head were observed, and the physical examination of Petitioner’s head revealed it to be “normocephalic, atraumatic.” Therefore, Respondent failed to meet its burden of proof.
Uffalussy v. St. Patrick Hospital [11/06/07] 2007 MTWCC 45 “Once the claimant has proven a work-related injury and produced evidence that that injury is a cause of a present disability, an insurer who alleges that subsequent events are the actual cause of the claimant’s current disability has the burden of proving that allegation, which is in the nature of an affirmative defense, by a preponderance of the evidence.” Briney v. Pacific Employers Ins. Co., 283 Mont. 346, 351, 942 P.2d 81, 84 (1997), citing Walker v. United Parcel Serv., 262 Mont. 450, 456, 865 P.2d 1113, 1117 (1993).
Preston v. Transportation Inc. [4/17/02] 2002 MTWCC 23 The burden of proof with respect to an affirmative defense, including a defense based upon the statute of limitations, is upon the party proferring the affirmative defense.