The Law of Workmen’s Compensation § 65.12 (1990). See, Doney v. Tambouratgis, 23 Cal. 3d 91, 587 P.2d 1160, 151 Cal. Rptr. 347 (1979) (stating that the person requesting to be one of the persons protected from an action at law by the provisions of the workers’ compensation act bears the burden of pleading and proving, as an affirmative defense, that he or she is in the class protected by the act); Ammons v. Hood, 288 S.C. 278, 341 S.E.2d 816 (1986) (finding that a defendant who wishes to raise the exclusivity of workers’ compensation as a defense must do so affirmatively). However, the New York Court of Appeals has held that the defense is waived only when ignored to the point of final disposition. See Murray v. City of New York, 43 N.Y.2d 400, 372 N.E.2d 560, 401 N.Y.S.2d 773 (1977) (<HOLDING>). There are several exceptions to the general
holding that the right to control is measured by considering 1 the independent nature of the workers business 2 the workers obligation to furnish necessary tools supplies and materials to perform the job 3 the workers right to control the progress of the work except as to the final results 4 the time for which the worker is employed and 5 the method of payment whether by unit of time or by the job holding that workers compensation is the exclusive remedy as a matter of substantive law and hence whenever it appears from the plaintiffs pleadings bill of particulars or the facts that the plaintiff was an employee of the defendant the obligation of alleging and proving noncoverage or applicability of workers compensation benefits falls on the plaintiff the court continued stating that waiver may be accomplished by ignoring the issue to the point of final disposition holding that the provisions of the workers compensation act must be satisfied or the action is not maintainable in the courts holding that under the doctrine the district court should have stayed the diversityjurisdiction case pending the state workers compensation commissions final decision on whether the defendant properly paid certain workers compensation claims holding that the trial courts authority to initiate workers compensation benefits before the final adjudication was not divested by the legislature and was consistent with the stated purpose of the workers compensation act