While we typically think of workers’ compensation as an arena where the fault of the injured worker plays no part, Section 301(a), 77 P.S.§431, of the Pennsylvania Workers’ Compensation Act (Act) carves out several exceptions to the rule. An additional exception is when an employee is injured as a result of a violation of a positive work order.

In a Claim Petition proceeding, the claimant bears the burden of proving all the elements necessary to support an award of benefits. Inglis House v. WCAB (Reedy), 535 Pa. 135, 634 A.2d 592 (1993). Once that burden is met, the burden shifts to the employer to prove, in defense, that a claimant was in violation of a positive work order when the claimant was injured. City of New Castle v. WCAB (Sallie), 546 A.2d 132, 134 (Pa. Cmwlth. 1988).

In order to assert this defense, the employer must prove: (1) the injury, was in fact, caused by the violation of the order or rule; (2) the employee actually knew of the order or rule; and (3) the order or rule implicated an activity not connected with the employee’s work duties.” Johnson v. WCAB (Union Camp Corp.), 749 A.2d 1048 (Pa. Cmwlth. 2000).

In the recent case of Habib v. WCAB (John Roth Paving Pavemasters), 29 A.3d 409 (Pa. Cmwlth. 2011), the Commonwealth Court revisited this defense and found the claimant violated a positive work order. In this case, the claimant was a laborer for a paving company. While on the job, the paving crew found a bowling ball along the road. After a round of shot put, a challenge was made to see who could break the bowling ball with a sledge hammer.

Claimant took a sledge hammer to the ball and cracked it. The foreman testified that at that point he told claimant to “knock it off, or stop.” Claimant tried again and when he struck the ball the second time, a chip flew off hitting him in the eye causing a laceration and eventual loss of the eye.

The Workers Compensation Judge initially granted benefits based upon the fact that claimant was merely careless and the positive work order was not given sufficiently in advance of the careless act of claimant. The Workers’ Compensation Appeal Board reversed the grant of benefits, which was ultimately affirmed by the Commonwealth Court. The Board and Commonwealth Court believed that: (1) the claimant’s conduct caused the injury; (2) the claimant was told to “knock it off” immediately before he acted; and (3) his conduct was clearly not within his work duties. As such, benefits were denied. If granted, claimant would have received 275 weeks of indemnity benefits for the loss of his eye.

What It Means to You

Although fault of the employee is sometimes taken lightly when deciding to accept or deny a new workers’ compensation claim, exceptions to the “no-fault” provisions of the Pennsylvania Workers’ Act are available and should be discussed with counsel early in the claims process in order to effectively protect the interests of the employer and/or carrier on claims where liability under the Act may not exist.