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

The Affirmative Defense to challenge and Employee’s receipt of workers’ compensation benefits based upon the violation of a positive order or rule of the Employer is limited. Even though the Employee violated the Employer safety policies, which resulted in his injuries, his violation of the safety rules was not "so disconnected" from his work duties as to render him outside the scope of employment. The court distinguished a violation of positive orders occurring during activities connected with the work duties from violations of positive orders of a prohibited activity not connected with the work duties.

The Commonwealth Court of Pennsylvania has narrowed the scope of the employer's affirmative defense, that the employee sustained a work injury in the course of violation of a positive order or work rule. In Asplundh Tree Expert Company v. W.C.A.B. (Humphrey), 2004 Pa. Cmmw. LEXIS 480 (06-22-04), the court distinguished the violation of Employer orders or rules which occur while performing work-related duties from those violations which occur during a prohibitive activity, not connected with the work duties.

Employee was employed as a tree trimmer. On the date of injury, he proceeded to climb a tree without a safety line secured to the tree. Employer witnesses testified that employee was familiar with the employer's policies, and this policy was reviewed with the work crew, on a daily basis. The employer's witnesses and accident investigation revealed that employee was "free climbing" without the safety line.

The workers' compensation judge awarded disability benefits based upon the findings that employee was injured in the course of climbing, which is an essential, material job function of a tree trimmer. The prohibited activity, not tying in with the safety line while climbing, was an activity connected with claimant's work duties. Therefore, the employer failed to meet its burden of proof that employee violated a positive work order involving a prohibited activity not connected with the work duties.

On appeal from this award, Employer argued that employee violated a positive work order and was not entitled to worker compensation benefit payments. The Commonwealth Court reviewed the Dickey decision of the Pennsylvania Supreme Court from 1929 and the more recent Nevin Trucking decision of the Commonwealth Court in 1995. Relying upon these case precedents, the Court found that the violation of positive orders does not always prohibit compensation for injuries sustained while performing duties connected with the employment. In Nevin Trucking, the Commonwealth Court stated that the employer's burden of proof for denial of benefits based upon a violation of a positive order, is that the employer must prove that: (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.

The Commonwealth Court rejected the Employer's argument that it enacted extensive safety policies and made great efforts to insure that all employees were aware of these policies. From a public policy perspective, employee's injury should not be compensable, as a rule that allows employees to violate safety procedures and still receive compensation benefits will provide employers with little incentive to continue such practices and procedures. These logical arguments were rejected in favor of the "remedial nature" of the Workers' Compensation Act and its liberal construction to effectuate its "humanitarian objectives." There appears to be an underlying concern that Employees would not receive workers’ compensation benefits for injury occurring while performing essential work related tasks. Since 1972, the workers’ compensation system is a "no-fault" benefit, which does not assess the contributory negligence of the Employee in causing the "accident." It is difficult to reconcile this no-fault concept with the affirmation defense that Employee "caused" the accident, as a result of violating safety rules on policies. The result is a narrow rule of law, which denies an otherwise compensable injury, only where the Employee’s activity was unconnected to the work duties.

Practice Pointer: During investigation of work related injury claims, one must investigate the Employer’s rules, the Employee’s knowledge of the rules, the relationship of the "violation" to the cause of the injury and whether the "violation" occurred during a work-related task or during the engagement of a prohibited non-work activity.