What Do You Think: Did Using Rear Door Rob Guard of Right to Benefits for Broken Arm?

Stroudsburg, PA (WorkersCompensation.com) -- In Pennsylvania, a worker who is acting in violation of a positive work order when he is injured may not be able to collect benefits for the injury.

But what circumstances constitute such a violation? A Pennsylvania court addressed that issue in the case of a dinner theatre security guard who slipped on ice when trying to enter the building from the back.

The guard decided to use the rear entrance instead of the front so he could get to work on time. In doing so, he slipped on snow-covered ice and fell, fracturing his arm.

There was no sign at the rear entrance prohibiting employees from entering. However, the theatre had held meetings where management verbally prohibited employees from using the rear entrance during cold months. The reason for prohibiting employees from using the door was that the area was typically icy due to lack of sun exposure. The guard had attended the meetings discussing the prohibition.

The theatre acknowledged, however, that it occasionally stationed security guards at the rear entrance.

The theatre challenged a Worker’s Compensation Judge’s award of benefits to the guard. It argued that because the employee was violating a positive work order at the time, his injury did not occur in the course of employment.

The court explained that under the positive work order defense, an employer must show that a policy existed, of which the claimant was aware, and that the claimant's violation of the policy removed him from the course of employment.

Did guard fall in the course of employment?

A. No. The theatre clearly told him not to enter from the rear of the building.

B. Yes. There was no sign prohibiting using that entrance and the theatre sometimes posted security guards there.

If you chose B you sided with the court in Fine Arts Discovery Series v. Critton, No. 1000 C.D. 2021 (Pa. Comm’w Ct. 10/20/22), which held that the guard’s use of the rear door was not so far afield from his job that rendered him essentially a trespasser.

The court explained that the positive work order defense is a rare exception to an injury’s compensability. “An act made in violation of a positive work order must be ‘so disconnected’ with the claimant's regular work duties that he may be considered nothing more than a trespasser,” the court wrote.

In ruling in the guard’s favor, the court pointed to the following:

1. Security personnel were occasionally stationed at the rear of the building.
2. The theatre presented no evidence that the guard’s duties as a security guard did not encompass that location.
3. There was no sign at the rear entrance stating that employee must not enter there.

Those three factors, the court stated, indicated that the guard’s fall occurred during an activity that was not so disconnected from his work duties as to essentially render him a stranger there. Instead, the court wrote, the guard “was simply attempting to access the building to begin his work duties.”

The court affirmed the WCJ’s decision awarding the guard benefits.

This feature does not provide legal advice.

Compliance information from 53 U.S. jurisdictions, including Pennsylvania, can be found on WorkCompResearch

Share This Article: