Background Facts of Case
Claimant sustained a foot injury at work on August 12, 2009. Claimant's regular job at the employer was confined to being a pallet jack driver. He was trained regarding this position and the operation of the pallet jack, he was tested concerning the operational aspects of the job, and he was made aware of safety concerns pertaining to that position as well. However, on August 12, 2009, he was driving a different piece of equipment at work, a forklift, that ran into a pole. The claimant's foot had been sticking out of the forklift and was crushed upon impact.
It turns out that on the day of the injury, before the end of his shift, claimant jumped on the forklift and drove it around for a while before driving it to the punch-out area. He stated that he drove the forklift because it was "fun to drive." He said that sometimes he would spontaneously operate a forklift at work. Certification and authorization to operate the forklift, though, was required, and claimant was neither certified nor authorized. Claimant knew unauthorized personnel were not permitted to operate the forklift. Claimant testified that his supervisor saw him drive the forklift and never told him that he was prohibited from operating it. Claimant asserted that it was a common practice for employees to drive the forklifts to the punch-out area and that supervisors said nothing about it.
Claimant's supervisor testified, though, that claimant was not permitted to use the forklift, was not allowed to use it if he was non-certified to drive it, and that claimant was not certified. The supervisor testified that claimant was told not to be operating equipment for which he was non-certified. He said that he did not see claimant driving the forklift on August 12, 2009. He stated that claimant was not assigned to operate the forklift and had not practiced operating the forklift.
The Workers' Compensation Judge (WCJ), in deciding this Claim Petition case, concluded that claimant's testimony was not credible about the supervisor observing him on the forklift or about the supervisor allowing claimant to drive it. Instead, the WCJ found the supervisor's contrary testimony to be credible.
The WCJ ultimately held that claimant was not acting in the furtherance of employer's interests at the time of the injury. Claimant was riding the forklift equipment after his own work duties had been completed at the end of his shift, even though he was prohibited from driving the forklift. Claimant knew he should not have extended any part of his foot beyond the confines of the forklift while driving it. The WCJ found that claimant was clearly aware he was engaging in activities not permitted by his employer at the time of the injury, and that operating the forklift had no connection whatsoever to claimant's own job. Essentially, he had no duty to operate the forklift and no business driving it. Therefore, when doing so, he was not within the course and scope of his employment and consequently was not injured while performing his job. The WCJ ultimately concluded that the employer met its affirmative burden to prove claimant's injury had been caused by a violation of several work rules, of which claimant was aware, and that driving the forklift at the time of the injury was an activity with no connection to claimant's own work activities. Accordingly, the WCJ denied the Claim Petition. Claimant appealed to the Workers' Compensation Appeal Board (WCAB), which affirmed the WCJ's decision.
Commonwealth Court's Holding
The overriding question involved in claimant's appeal to the Pennsylvania Commonwealth Court was whether his injury, occurring on the employer's premises, was compensable, or whether the actions leading to the injury violated a positive work order, and took his activities outside the course of his employment, thus invalidating the compensability of the claim. The Court agreed that employer successfully defended against the Claim Petition by establishing that claimant's actions had removed him from the course and scope of his particular employment. The claimant's actions in operating the forklift, that led directly to the injury, violated certain positive work orders, of which claimant was aware. Furthermore, claimant's activities in operating the forklift were unconnected with his own occupational responsibilities. The supervisor's testimony was credited as establishing that claimant was neither permitted nor certified to operate the forklift and that driving the forklift was not part of his job.
In sum, the employer had demonstrated that claimant was injured because he drove a forklift in violation of positive work rules of which claimant was aware, and that operating the forklift was not an activity associated with claimant's own work duties. Importantly, the WCJ found the supervisor's testimony in this regard more credible than claimant's, and the supervisor's testimony was based upon substantial evidence. Since claimant's violation of positive work rules had directly caused the injury, and since this activity was not within the course and scope of claimant's employment as a pallet jack driver, the WCJ's denial of benefits was affirmed.
Generally, in regard to Pennsylvania workers' compensation matters, there is a statutory presumption that all injuries sustained on an employer's premises are considered to have arisen in the course of the worker's employment. However, when an injury is caused by violation of a positive work order, when the employee was aware of the positive order before the moment of injury, and when the order prohibited an activity unconnected with the employee's own work duties, the presumption can be rebutted and the injury can be deemed non-compensable. In other words, it can be established that the employee violated a specific work directive and caused his own injury as a result. The classic case in this regard is Nevin Trucking v. WCAB (Murdock), 667 A.2d 262 (Pa. Cmwlth. 1995), where a truck driver, injured while attempting to change a flat tire on-the-road, and knowing that the employer had directed that tires were not be changed by the drivers and that the tires were to be changed by professionals instead, was not in the course of his employment when he was injured. Nevin held that for an employee to be denied workers' compensation benefits based upon a violation of a positive work rule, the employer must establish that the injury was, in fact, caused by the violation of the order, the employee actually knew of the order, and the order involved an activity unconnected with the employee's own work duties. However, the exclusion of benefits eligibility for violation of a positive work rule is a limited exception to compensability that is very fact-specific. In attempting to utilize this defense, one should review the claimant's job responsibilities carefully, the existence of the work rule and claimant's awareness thereof, and whether the proscribed activity in which the claimant was engaged at the time of the injury carried him outside the course and scope of his particular employment. This defense involves proving that the employee knowingly abandoned his employment activities and that his non-employment activities directly caused the injury.
Conversely, when an employee is injured while engaged in an activity that is an essential and material function of the employee's job, the failure to use safety equipment, for instance, does not constitute a violation of a positive work order in this context. Scott v. WCAB (Ames True Temper, Inc.), 957 A.2d 800 (Pa. Cmwlth. 2008), Asplundh Tree Expert Co. v. WCAB (Humphrey), 852 A.2d 459 (Pa. Cmwlth. 2004). As another example, an act of horseplay, when limited to joking behavior occurring within the assigned work area, without the intent to inflict harm, when it leads to an injury, is not necessarily a violation of a positive work rule precluding compensability, either. Sysco Food Services of Philadelphia v. WCAB (Sebastiano), 940 A.2d 1270 (Pa. Cmwlth. 2008). To preclude benefits under this theory, it is necessary for the employee to have been acting outside the realm of his work activities. To quote an ancient Pennsylvania Supreme Court workers' compensation case, Dickey v. Pittsburgh and Lake Erie Railroad Co., 146A. 543 (Pa. 1929),
. . . injuries from those acts which are in direct hostility to, and in defiance of, positive orders of the employer concerning instrumentalities, places, or things about or on which the employee has no duty to perform, and with which his employment does not connect him, are not compensable under the clause in question.
In sum, to succeed with this defense, an employee must establish that there was a work order of which the injured employee was aware, that he violated that order, and that the violation directly resulted in the injury. However, in addition, the employer must also prove that the activity causing the injury was not a part of the employee's occupational duties and that it was, in fact, foreign to his job. Essentially, this will only occur when the employee's injury occurred at a location where he was prohibited from being, or he was involved in an action or activity wholly disconnected from his personal job duties. Although the burden to establish these requisite facts may be difficult, whenever this defense may potentially apply, it should nevertheless be investigated, raised, and pursued.
If you would like a copy of Miller v. WCAB (Millard Refrigerated Services and Sentry Claims Service), issued by the Pennsylvania Commonwealth Court on June 22, 2012, or would like to further discuss it, please do not hesitate to contact any of the members of our firm's Workers' Compensation Group.