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BUT I TOLD HIM NOT TO DO THAT! Violation of Positive Work Orders Revisited

Depending upon the circumstances, a “violation of a positive work order” may provide an affirmative defense to a workers’ compensation claim.[1]  Three criteria must be met:

(1)  The injury must be, in fact, caused by the violation of the order or rule;

(2)  The employee must actually be aware of the order or rule prior to the injury; and,

(3) The order or rule must implicate an activity not connected with the employee’s work duties.

The Commonwealth Court specifically addressed this defense in the case of Ryan Miller v. WCAB (Millard Refrigerated Services and Sentry Claims Service), 47 A.3d 206 (Pa. Cmwlth. 2012).  In that case, Mr. Miller had been trained as a pallet jack driver.  Nevertheless, he would sometimes “jump on a forklift,” knowing that a forklift requires certification to operate and that he lacked that certification.  He testified that he would drive the forklift because it was “fun to drive.”  On August 12, 2009 while driving the forklift, Mr. Miller crashed into a pole.  His foot had been sticking out of the forklift and was crushed upon impact.  The employer presented testimony establishing that Mr. Miller was hired to run the pallet jack and that Mr. Miller was told not to be on other equipment, including the forklift, unless certified.

The Workers’ Compensation Judge found the employer’s witness to be credible.  The WCJ concluded that Mr. Miller violated several work rules of which he was aware, that the violations caused Mr. Miller’s injuries, and that driving a forklift was an activity with no connection to Mr. Miller’s work activities as a pallet jack driver.  The Workers’ Compensation Appeal Board and the Commonwealth Court agreed.

The analysis applied to Mr. Miller’s case is the same analysis applied in 1929 by the Pennsylvania Supreme Court in the case of Dickey v. Pittsburgh & Lake Erie Railroad Co., 297 Pa. 172, 146 A. 543 (1929).  Mr. Dickey, a watchman for the railroad, was repeatedly instructed to use a boardwalk to cross the railroad tracks. Failing to do so, he was struck by a train. In denying his widow’s claim, the Supreme Court found that the watchman was not acting in the course of his employment, nor were his actions mere negligence; but rather, he was akin to a trespasser.  The key was not merely that the watchman had violated his employer’s order to use the boardwalk, but that he violated an instruction “designed for the safety and protection of employees.”   Because he did so, the Court likened him to a trespasser or stranger to the employment relationship.

Likewise, in driving the forklift, without the requisite training and certification, Mr. Miller violated a rule designed for his safety as well as the safety of his co-workers.  Because he did so, he is akin to a trespasser or stranger to the employment relationship.

Another relatively recent example of the Court denying benefits due to the claimant’s violation of a positive work order may be found in the case of Habit v. WCAB (John Roth Paving Pave masters), 29 A.3d 409 (Pa.Cmwlth. 2011).  Mr. Habit was a member of a work crew waiting for a delivery of asphalt when a bowling ball was discovered.  A challenge arose between the men to see if anyone could break the bowling ball with a hammer.  Mr. Habit managed to crack the ball and then struck it a second time, causing a piece of the bowling ball to break off and strike him in the eye   He ultimately lost the eye and filed a Claim Petition.  The foreman testified before the WCJ that, between Mr. Habib’s striking of the ball, he told him to “knock it off or stop.”  He also told Mr. Habit that he would not take him to the hospital if he sustained an injury.

The WCJ granted the Claim Petition, concluding that, although his foreman issued a direct warning to Mr. Habit, the warning was not made sufficiently in advance to render it a “positive work order.”  Moreover, the WCJ concluded that Mr. Habit did not deliberately put himself at risk of injury, but was merely careless.  The WCAB reversed, noting that (1) Mr. Habib’s conduct was not without consequence; (2) He was given a supervisory directive to “knock it off;” and (3) the conduct giving rise to the injury was clearly not connected to Mr. Habib’s work duties.  As such, the WCAB found that the employer had established all of the elements necessary to defeat the claim on the basis that Mr. Habit had violated a positive work order.  The Commonwealth Court agreed.  The denial of the claim was upheld.

Again, like Mr. Dickey in 1929 and like Mr. Miller as set forth above, Mr. Habit violated a directive designed for his safety and the safety of his co-workers, rendering him a trespasser or stranger to the employment relationship.

Cases involving this defense, however, are extremely fact specific.  The positive work order or rule must relate to an activity not connected with the claimant’s work duties.   For example, in Asplundh Tree Expert Company v. WCAB (Humphrey), 852 A.2d 459 (Pa.Cmwlth. 2004), Mr. Humphrey, a tree trimmer, went through safety training with his employer and was aware of the employer’s “ground to sky” policy which provided that an employee is not to climb off a ladder before first putting his safety line into the tree.  The employee was to find a crotch in the tree, put the line in and then tie himself in.  Mr. Humphrey proceeded halfway up a ladder when his supervisor told him that he was going back to the truck to get a pole to crotch Mr. Humphrey’s safety line.  Mr. Humphrey, however, did not wait in violation of his training and his supervisor’s directive.  Instead, he proceeded to climb the tree, his lanyard snapped and he fell on his back, breaking his arm.  The Court noted that Mr. Humphrey’s job duties required him to climb trees and found Mr. Humphrey’s violation of the employer’s policy that he be tied into a tree at all times to be mere negligence.  His violation was not so disconnected from his duties so as to render him a stranger or a trespasser at the workplace.

As noted above, the Court’s reasoning in Dickey has essentially evolved into a three-prong test:

(1)  Was the injury, in fact, caused by the violation of the order or rule?;

(2)  Was the employee actually aware of the order or rule?; and,

(3)  Did the order or rule implicate an activity not connected with the employee’s work duties?

The first two prongs are usually easily met.  Therefore, it is the last element that determines if the “violation of positive orders doctrine” is applicable. The activity in which the claimant has engaged must be so foreign to his or her job duties so as to render the claimant a trespasser or stranger at the work place.  If this element is not present, the defense is not available to the employer.


[1] A detailed history of how the defense developed and how it has been applied by the Courts may be found in the Spring 2003 Edition of the TR&C Pennsylvania Workers’ Compensation Bulletin.

For a confidential analysis of your workers’ compensation issues, or questions about TRC’s workers’ compensation  practice area, please contact Margaret M. Hock, Esquire  at (412) 316-8647 or [email protected].

Important NoticeThis information is intended for general guidance only, and should not be used as a substitute for specific legal advice.  For specific legal advice applicable to your situation, you should consult an attorney of your choice.  Although believed to be accurate when written, no guarantee of completeness or accuracy to your particular circumstances should be implied.  Laws, regulations, and court decisions in this area change frequently, and you should consult the attorney of your choice for up-to-date information.