Fried, Kane, Walters, Zuschlag and Grochmal 625 Stanwix Street, Suite 1404
Pittsburgh, Pennsylvania 15222
(412) 261-4774 - fax (412) 261-1225


See: Sysco Food Services of Philadelphia v. WCAB (Sebastiano), (Pa. Cmwlth. 01-23-08).

The workers’ compensation judge granted the claim petition for total disability as a result of a left leg injury sustained in the course of a work incident whereby the claimant was "bear hugged" by a co-worker and fell to the ground. The claimant testified that he was a "victim" not an active participant in the horseplay. Employer produced testimony that the co-workers were mutually engaged in horseplay. The claimant admitted that horseplay was prohibited by the employer.

Employer argued that claimant was not entitled to compensation as he was injured while violating a positive work order prohibiting horseplay. The Court noted that the employer’s affirmative defense requires proof that the injury was caused by the violation of a work rule, the employer actually knew of the rule, and the rule implicated an activity not connected with the employee’s work duties. There was no dispute claimant was aware of the work rule, and there was no dispute that claimant was injured as a result of the activity. Injuries arising from horseplay can be compensable if they are not "so disconnected" with claimant’s regular work duties. As claimant was in an area required by his employment and there was no evidence of any hostility or intent to injure, this incident was compensable.

Practice Pointer: The affirmative defense to an injury occurring on the work premises involving co-workers, requires specific rebuttal evidence of the lack of a relationship of the activity to the work duties and proof of some element of hostility or malice to placing individuals outside the scope of employment.