Up on the House Top, Claimant Falls: High Risk Conduct at Work Under the Pennsylvania Workers’ Compensation Act

Defense Digest, Vol. 23, No. 4, December 2017

By Maria A. Ciccotelli, Esq.*

Ever since people have been employed, mistakes have been made at work. While some of these mistakes are merely misguided, others rise to the level of stupidity. However, regardless of how misguided the action, it can still lead to a compensable workers’ compensation claim in Pennsylvania.

Generally, workers’ compensation in Pennsylvania is a “no fault” system, as long as the employee was doing his or her job at the time of the injury. Under Section 301(c)(1) of the Act, for a claim to be compensable, an injury must have occurred in the “course” of employment, including injuries “sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer.” One of the more contested aspects of the law is what constitutes an activity in the furtherance of an employer’s business. Even imprudent actions—attempting to jump and touch a basketball rim while delivering furniture, drinking and driving, and relieving oneself on the side of the road—have been found to be activities in the furtherance of an employer’s business, as in Baby’s Room v. WCAB (Stairs), 860 A.2d 200 (Pa.Cmwlth. 2004), Kovalchick Salvage Co. v. WCAB (St. Clair), 519 A.2d 543 (Pa.Cmwlth. 1984) and WCAB (Shremshock) v. Borough of Plum, 340 A.2d 637 (Pa.Cmwlth. 1975), respectively.

This issue arose again in the case of Wilgro Services, Inc. v. WCAB (Mentusky); 165 A.3d 99 (Pa.Cmwlth. 2017). The claimant in Wilgro Services jumped off the roof of a two-story building after he realized his ladder was gone. He fractured both feet and injured his back. Interestingly, although the claimant tried to open the roof hatch, he did not exhaust all of his egress possibilities. He did not call for help or bang on the hatch. He failed to use his cell phone to call the building owner, the employer or 911. Instead, the claimant jumped about sixteen to twenty feet to the ground.

The employer denied that the claimant’s injuries occurred in the course and scope of his employment, and the claimant filed a claim petition. The Workers’ Compensation Judge granted the petition, finding that the claimant was in the course of his employment when he jumped from the roof. According to the judge, the claimant did not intentionally or deliberately try to injure himself when he jumped. Although his decision was misguided, it did not bar him from receiving compensation benefits because he was not involved in horseplay, he knew jumping was not appropriate and he did not violate any positive work order.

The employer appealed to the Workers’ Compensation Appeal Board, arguing that the claimant’s actions were wholly foreign to his employment; therefore, he was not in the course and scope of his employment. The employer referred to the case Penn State University v. Workers’ Compensation Appeal Board (Smith), 15 A.3d 949 (Pa.Cmwlth. 2011), which found that an employee was not acting in the course and scope of his employment when he intentionally jumped down a flight of stairs during his unpaid lunch break, as this action was “wholly foreign” to his employment.

The Appeal Board affirmed the judge’s original decision, finding that Wilgro Services was distinguishable. It held that the employee in Penn State was acting on a “whim” while the claimant’s actions in Wilgro Services were deliberate.

The employer appealed the issue to the Pennsylvania Commonwealth Court, asking the court to consider the intentional, premeditated, deliberate, extreme and high-risk nature of the claimant’s conduct. The claimant argued that, even if his actions were misguided or “stupid,” he was still acting within the course and scope of his employment. The Commonwealth Court found that, although jumping off of a roof was not one of the claimant’s job duties, exiting a work site was a necessary component of any job that advanced the employer’s business and affairs. While the claimant’s decision to jump was not advisable, dumb and foolish, it was not unreasonable. The employer failed to prove that the claimant’s deeds were so foreign and removed from his employment to constitute an abandonment of employment. The Commonwealth Court affirmed the Appeal Board’s decision.

The Commonwealth Court’s decision begs the question of what employers can do to prevent misguided actions from being compensable. While it is impossible to anticipate every ill-advised act, some actions can be preempted with positive work orders. One of the factors the Workers’ Compensation Judge took into account in Wilgro Services was that the claimant had not violated any positive work order when he jumped, and the Commonwealth Court considered it important that the claimant found himself in an unexpected situation.

There is a slim chance that an employer can use the violation of a positive work order as an affirmative defense if the injury is caused by a violation of the order, the employee knew of the order, and the order implicated an activity not connected with the employee’s work duties, as per Miller v. WCAB (Millard Refrigerated Servs.), 47 A.3d 206 (Pa.Cmwlth. 2012). It might not have saved the employer from paying out benefits here in Wilgro Services, as the Commonwealth Court found that exiting the work site was a necessary component of the claimant’s job. However, if given clear directions as to what to do in certain situations, at the least, employees are less likely to make foolish choices, such as jumping off the roof of a job site.

*Maria is an associate in our Philadelphia, Pennsylvania office. She can be reached at 215.575.2708 or maciccotelli@mdwcg.com.

_{Defense Digest, Vol. 23, No. 4, December 2017. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2017 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}