Claimant, who lost an eye when a piece of bowling ball he hit with sledge hammer broke off and struck him, is held to have violated a positive work order when told to stop immediately before the incident.

The claimant in this case sought specific loss benefits for the total loss of use of his right eye after a piece of a bowling ball broke off and struck him in the eye as he tried to break it apart with a sledge hammer. The event occurred while a crew attempted to kill time while waiting for delivery of a truckload of asphalt. The claimant was challenged to see if he could break apart a bowling ball found in the parking lot with a sledge hammer, but before doing so, he was warned by his foreman to "knock it off, or stop."

The workers' compensation judge determined that the claimant sustained his burden of proof in a claim petition and specifically denied the employer's defense that the claimant violated a positive work order. Although the judge found that the claimant met the elements of the defense, the decision was based on the finding that the supervisor's order was given too late to be effective. The Appeal Board reversed, holding that the foreman's order was legally sufficient because it was given immediately before the claimant struck the bowling ball with the sledge hammer. In affirming the Appeal Board's decision, the Commonwealth Court ruled that the claimant was injured in violation of a positive work order where all of the elements of the defense were met.

Case Law Alert - 1st Qtr 2012