Amicus Update:  PaTLA contributes to favorable outcome in �violation of work rule� for WC claim denial

by Daniel K. Bricmont, Esq.

In Camino v. WCAB (City Mission & MCRA, Inc.), decided by the court April 18, 2002, the Commonwealth Court issued its most recent pronouncement with regard to the scope of the �violation of work rule doctrine� as a defense to payment of workers� compensation claims. The court acknowledged the narrow doctrine, which holds that an employee may be denied benefits if his or her injury arises from a violation of positive order, and which involves matters not connected with the terms of his or her employment. The facts of the Camino case caused the court to re-examine the doctrine.

In Camino, the claimant received benefits for an injury to his hands sustained in the course of his employment with General Electric Company, his original employer. General Electric hired a rehabilitation company to attempt to place the claimant back into the work force. The rehabilitation company, in cooperation with MCRA, Inc., placed the claimant in a funded employment position at the City Mission to perform the duties of a launderer. The wages for this position were funded through the rehabilitation company and MCRA, by General Electric.
When the claimant began working his duties at the City Mission in the funded employment position, he was advised by a supervisor that he would have no other duties than to wash, dry, fold, and put away laundry. He was specifically told not to go into the showers or restroom areas and not to perform mopping or cleaning of those areas because they were out of bounds and in the dormitory area where other staff worked. The written job description for the launderer position described the position as including, in addition to duties connected to laundering, other duties within work capabilities. The claimant was also instructed that a co-worker would educate him further on his duties.

On March 31, 1998, the claimant sustained injuries to his back while mopping in the restroom at the City Mission during his regular working hours. The claimant filed a claim for workers� compensation benefits, which was denied by MCRA and City Mission on the basis that the claimant had been given a positive order not to do those activities and the claimant was injured doing this prohibited activity and, therefore, the claimant was not within the scope of his employment when he was injured.

During proceedings before the Workers� Compensation Judge (hereinafter �WCJ�), the claimant asserted that he was trained in this position by an individual, who was also a resident at the City Mission. The individual had instructed the claimant to do mopping and cleaning activities in between the laundry. Further, the resident had a document distributed to the residents of City Mission that listed the duties a launderer has, including the mopping and cleaning of the restroom area. Although the claimant acknowledged that the resident was not a direct supervisor, he did not question the instructions because he was originally told that this individual would instruct him further on how to work the position.

In defense of the claim petition, the employer relied on the testimony of the agent from the rehabilitation company as well as the testimony of the supervisor at the City Mission. That testimony established that the claimant had been instructed not to mop or clean the restrooms. The employer�s witnesses agreed that the responsibilities of the laundry man position at the City Mission (the form that was utilized by the claimant�s co-worker for training purposes) did include, in addition to laundry work, cleaning of restrooms and mopping. The WCJ accepted the testimony of the rehabilitation witness and the supervisor from the City Mission as more credible than the testimony of the claimant. Accordingly, the WCJ found that at the time of injury, the claimant was violating a direct order and that the activities were within the scope of his work duties. Consequently, benefits were denied. The Workers� Compensation Appeal Board affirmed.

The Commonwealth Court, in an opinion by Senior Judge Mirarchi, reversed. 
The court acknowledged that the leading cases that applied to violation of the work rule doctrine established a three-pronged test for determining when the doctrine will apply to deny benefits to an injured worker as a result of disobeying an employer�s order. First, the injury was in fact caused by a violation of the order or rule. Second, the employee actually knew of the order or rule. Third, the order or rule implicating an activity not connected with the employee�s work duties (See, Mevin Trucking v. WCAB (Murdock), 667 A2d 262 (Pa. Cmwlth. 1995 and Dickey v. Pittsburgh & Lake Erie Railroad Co., 297 Pa. 172, 146 2 543 (1929)

The court, citing the Supreme Court opinion in Dickey, noted that:

Care must be taken not to confuse the principle enunciated with negligent acts...., willful misconduct..., or those acts in disregard of positive orders of the employer, where the employee�s duties included the doing of the act that caused the injury, or where the duties were so connected with the act that caused the injury, that as to it he was not in the position of a stranger or a trespasser. The violation of positive orders under these circumstances does not prohibit compensation for injuries sustained therefrom.

Dickey 145 A. at 544.

The court continued by acknowledging that the violation of work rule cases are a very rare exception to the broad general principal that injuries sustained by an employee arising in the course of employment and related thereto are compensable. Applying this principle to the case at hand, the court concluded that the WCJ had erred by extending the holding in Nevin Trucking to the present case. In order to be ineligible for benefits, the claimant must not only have been injured while in violation of an order, but must have been engaged at the time of injury in an activity so disconnected with his regular duties as be considered with respect to the employer nothing more than a stranger or trespasser, the injuries must arise out of matters with which the employees employment does not connect him.

Turning to the facts of this case, the court agreed with the position advanced by the claimant, and advanced by an amicus curiae brief filed on behalf of the Pennsylvania Trial Lawyers Association, that the claimant, while mopping a restroom on the premises where he worked, could not be considered in the role of a stranger or trespasser. Janitorial type activities of mopping and cleaning is not so foreign or disconnected from the duties of the worker who operates washers and dryers as to render him a stranger or trespasser at the work place, particularly where the duties of a resident launderer including mopping and cleaning. Further, unlike the claimants in Dickey and Nevin, the claimant here was not engaged in a matter of personal convenience or interest, but an activity �that may safely be characterized as one for the benefit of the workplace and not for the worker performing it�. Nor, was there evidence that mopping, particularly as to the claimant was a dangerous activity. The claimant was partially disabled from his regular employment by virtue of a hand injury, not an injury to his back or leg, and his doctor had not restricted him from mopping. Further, while the claimant was instructed not to mop, the WCJ found that the claimant had been introduced to a resident for purposes of training regarding the particulars of his work duties, that resident had provided the claimant with an additional list of activities included in the responsibilities of a laundry man, which included cleaning the restrooms. The court concluded that while the claimant, of course, should have obeyed hi supervisor, he was provided with conflicting instructions. 

Given the fact that the Dickey line of cases represents a very narrow exception to the remedial nature and broad general principles of the act, the doubt should be resolved in favor of the remedial provisions. Accordingly the board�s order was vacated and the matter remanded to the WCJ for further findings as to the claimant�s disability and its relationship to the injury. 

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