July 13, 2012

Factual Background

In 2008, claimant was a member of a labor crew for a paving company.  While waiting for the next truckload of asphalt to arrive, the crew found a bowling ball next to the parking lot where they were working.  After a round of shot-put, a challenge arose among the crew members to see if anyone could break the bowling ball with a sledgehammer.  Claimant struck the bowling ball with the sledgehammer and cracked it.  Claimant’s second whack at the ball caused a piece of it to break off and strike him in the eye, resulting in an eye laceration which ultimately led to the loss of the eye.  Claimant filed a workers’ compensation Claim Petition requesting benefits entitlement for specific loss of the eye, alleging the injury occurred during the course and scope of his employment.  During the litigation of this case before a Workers’ Compensation Judge (WCJ), claimant’s foreman testified that in between the two times claimant struck the bowling ball with the sledgehammer, he told claimant to, “knock it off, or stop.”

The WCJ granted the Claim Petition holding that claimant, at the time of the accident, had not deliberately put himself at risk of injury, but was merely careless, and that such carelessness did not take him outside the scope of his employment to disqualify the claim.  The WCJ disagreed with employer’s position during the litigation, that claimant had violated a positive work order, which violation had caused the injury, thus invalidating the claim.  Instead, the WCJ concluded that although the foreman had issued a direct warning, it was not imparted sufficiently in advance of the injury in order to be considered a positive work order.  The WCJ was more persuaded by claimant’s argument that an employee does not depart from being engaged in the furtherance of the employer’s business or affairs during intervals of leisure while at work.

Employer appealed to the Workers’ Compensation Appeal Board (WCAB), again alleging the injury was directly caused by claimant’s violation of a positive work order and was consequently non-compensable.  The WCAB agreed with employer’s position, finding that claimant was given the supervisory directive to “knock it off,” and that the conduct directly resulting in the injury was clearly unconnected to any of his work duties.  The WCAB considered the positive work order to have been effectively communicated.  In fact, it was communicated immediately before the event that caused the injury.  The Board consequently reversed the grant of the petition.  Claimant appealed this decision to the Pennsylvania Commonwealth Court.

The Commonwealth Court’s Holding

In deciding this case, the Commonwealth Court first acknowledged that the WCJ, as the ultimate factfinder, has the exclusive province to determine credibility of witnesses and to resolve conflicting evidence.  Generally, if a WCJ’s findings of fact are supported by evidence, they must be upheld.  Though, the issue considered by the Court was whether claimant was within the course and scope of his employment at the time of the injury.  This is a question of law, which is subject to full appellate review.

To invalidate the compensability of an injury based upon a defense that a violation of a positive work order caused the injury, the employer must prove:  (1)  The injury was, in fact, caused by the violation of the order, when claimant struck the bowling ball the second time, resulting in a broken piece of the ball flying into his eye;  (2)  The employee was aware of the order  (when claimant was specifically told by the foreman to “knock it off”); and (3)  The order was in reference to an activity unconnected with the employee’s work duties, i.e., striking the bowling ball with a sledgehammer was not associated with claimant’s work as a paving crew laborer.

The Commonwealth Court continued, indicating that acts in direct defiance of an employer’s representative’s positive work order are non-compensable.  Here, the foreman told claimant to, “knock it off, or stop,” before claimant struck the bowling ball for the second time — the act which directly resulted in the eye injury.  The WCJ had acknowledged that the foreman gave the order, but the WCJ felt the order was not announced sufficiently in advance to constitute a positive work order that would preclude claimant from qualifying for workers’ compensation benefits.  The Board held that the WCJ erred in correctly applying the law to his own findings.

The Commonwealth Court agreed with the Board that in this situation, the employer had met its burden of proving that claimant was injured due to the act that violated a positive work order, thus removing that act from the course and scope of claimant’s paving crew employment.  Consequently, claimant was considered precluded from being awarded benefits for loss of the eye, and the WCAB’s determination was affirmed.

Lesson

Just because an injury at work was caused by a claimant’s stupidity, does not necessarily disqualify it as compensable, while onsite during a leisure interval during work activities.  What invalidated this claim was that before whacking the ball for this second time, this claimant was told by an employer representative not to do it.  Thus, an activity that was not normally associated with claimant’s occupational duties, and which directly resulted in his eye injury, was a violation of a positive work order that had been duly communicated to claimant.  This activity was therefore considered outside the course and scope of claimant’s work, and the incident was consequently deemed non-compensable.

When an activity causing an individual’s injury is of questionable work relatedness, it is suggested that the matter be fully investigated to determine if participation in that activity violated a direct order that was duly communicated to not participate in that activity.

If you would like a copy of Habib v. WCAB (John Roth Paving Pavemasters), issued August 12, 2011 by the Pennsylvania Commonwealth Court (which, on October 20, 2011, ordered that the opinion be reported), or would like to further discuss this case and its ramifications, please do not hesitate to contact any of us.