As per the Governor's shut down we are working remotely, however rest assured that we are still working to protect your rights! Please email us at dbrilliant@bnlegal.com for Dina Brilliant and gneiman@bnlegal.com for Glenn Neiman or call us at (215) 638-7500 and leave a message as we are checking our messages.

A new Frequently Asked Question has been, "I have the Coronavirus, can I get workers' compensation benefits?" The answer is that, yes, you may be entitled to workers compensation benefits depending on the facts. This can be whether you have contracted COVID-19 through work, or whether you have lost a modified duty job through an employer closing or layoff. Email or call us to discuss the specifics of your case in regard to the Coronavirus or any other work injury.

PA Workers’ Comp Claim Denied for Violation of Positive Work Order

Generally speaking, the PA workers’ compensation system is a “no fault” system. It usually doesn’t matter why an employee gets hurt, as long as he or she was doing his or her job at the time. As with most rules, of course, there are exceptions. One exception to this rule is when a work injury is suffered through the violation of a positive work order.

One common thread in cases which discuss the “violation of a positive work order” defense is an incredibly stupid action on the part of an injured worker. A recent decision by the Commonwealth Court of Pennsylvania, in Habib v. Workers’ Compensation Appeal Board (John Roth Paving Pavemasters), did not deviate far from this thread.

In this case, the employee, a laborer, was awaiting a delivery of asphalt. To pass the time, he elected to see if he could break a bowling ball with a sledgehammer. The employee struck the bowling ball once, and it cracked. The foreman then told him to “knock it off.” Undaunted, the employee smashed the ball again, causing a piece of the ball to strike the employee in the eye (leading to a loss of his eye).

The injured worker filed a Claim Petition, seeking compensation for the loss of his eye, and the case was litigated before a Workers’ Compensation Judge (WCJ). The WCJ granted the Claim Petition, finding that there was no violation of a positive work order. The WCJ found the injured worker was merely careless, and that the words from the foreman did not come sufficiently in advance to rise to the level of a positive work order.

The Workers’ Compensation Appeal Board (WCAB) reversed this decision on appeal, finding that the communication from the foreman was sufficient under the Pennsylvania Workers’ Compensation Act to become a positive work order. The decision of the WCAB was affirmed by the Commonwealth Court of Pennsylvania.

While the WCJ is indeed the ultimate finder of fact, appellate courts are able to use those findings as they see fit. The question of whether an injury was suffered in the scope and course of employment is a question of law, fully reviewable on appeal.

The Court noted that there are three elements to finding a violation of a positive work order, and all three are present in this case. First, the injury must be caused by the violation of the work order (striking the ball caused the shard to go into the injured worker’s eye). Second, the employee must know about the work order (the injured worker was specifically told to “knock it off”). Lastly, the order must relate to an activity not connected with the employee’s work duties (here the injured worker’s job was not to strike a bowling ball with a sledge hammer). Since the workers’ comp insurance carrier prevailed on all three elements of this defense, the injured worker is precluded from receiving benefits for the injury.