Claim Pet denied – Driving forklift not in scope and course

As we have discussed previously, generally, an injury which takes place at work is compensable by Pennsylvania workers’ compensation benefits. Our previous blogging noted one exception, being “violation of a positive work order.” Recently, this issue was again addressed by the PA Courts.

In the case of Miller v. Workers’ Compensation Appeal Board (Millard Refrigerated Services), the Commonwealth Court of Pennsylvania affirmed the decision of a Workers’ Compensation Judge (WCJ), denying a Claim Petition. In this case, the injured worker finished his shift and was driving a forklift to the area where he would punch out for the day. In so doing, he managed to crush his foot against a pole. The problem is that he was not certified to drive a forklift, knew he was not permitted to drive a forklift, and testified that he was using the forklift simply because it was “fun to drive.”

The WCJ noted, and the Commonwealth Court agreed, that all of the elements of the violation of a positive work order defense were present. Specifically, citing the famous 1995 Commonwealth Court case of Nevin Trucking v. Workmen’s Compensation Appeal Board (Murdock), the Court said:

When an employer raises the affirmative defense of a violation by an employee of a positive order or rule, 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.”

Since all of the elements were met, the WCJ, and the Court, found that the injured worker violated a positive work order, making him ineligible for PA workers’ compensation benefits.