The coverage must go on for theater security guard
The employer asserted the “positive work order” defense, which required proof that there was a specific policy in place, the claimant knew about the employer's policy, and that the claimant’s conduct at the time of injury removed the claimant from the course of employment.
A theater security guard’s award of workers compensation benefits has been affirmed by the Commonwealth Court of Pennsylvania even though the guard used a building entrance that his employer had prohibited employees from using. The case is Fine Arts Discovery Series, Inc. v. Critton, 2022 Pa. Commw. Unpub. LEXIS 444 (Pa. Commw. Ct. 2022). Please note that this case is an unpublished decision and may be cited and relied upon when relevant under the doctrine of the law of the case, res judicata, or collateral estoppel. It may also be cited for its persuasive value, but not as binding precedent.
Daniel Critton worked as a security guard at a theater run by Fine Arts Discovery. In February 2019, Critton attended a theater staff meeting where the head of security reminded employees that they should not use the back entrance; this point was repeated at a special meeting for security staff, including Critton, later that same day. A few weeks later, Critton was walking to the back entrance of the theater to begin his shift when he was injured slipping on ice. The injury was immediately reported, and Critton was treated for a broken arm at the emergency room. Fine Arts Discovery denied his claim because he was using the back entrance at the time he broke his arm. Before a workers compensation judge (WCJ), Fine Arts Discovery asserted the “positive work order” defense, which requires an employer to prove that there was a specific policy in place, the claimant employee knew about the policy, and that the claimant’s conduct at the time of injury removed the claimant from the course of employment.
Critton testified that he could not remember specific instructions prohibiting use of the back entrance and that many staff members used the back entrance. Theater employees called as witnesses also said stage crew often used the back entrance to load or unload equipment at the theater, and they didn’t know of a penalty for employees who used the back entrance. Members of theater management conceded both points; the supervisor to whom Critton had reported his injuries even admitted “that the rear entrance was not locked and that no signs were posted advising staff to not use that entrance.”
The WCJ, in addressing the positive work order defense, found Critton “was aware that Employer prohibited employees from using the rear entrance” based on the testimony of other theater employees. However, Fine Arts Discovery had failed to show Critton’s behavior totally removed him from his course of employment, and Critton’s petition for benefits was granted. On appeal to the Workers Compensation Board (the Board), Fine Arts Discovery reasserted the positive work order defense, saying Critton’s use of the back entrance in clear violation of theater policy removed him from his course of employment. The Board, however, came to the same conclusion, even stating that Critton’s “use of that door did not implicate an activity unrelated to his work duties,” and affirmed the WCJ’s decision. Fine Arts Discovery appealed to the Commonwealth Court of Pennsylvania, reiterating that Critton’s use of the back entrance removed him from his course of employment to the point that it precluded an award of benefits.
The judges looked to three factors from a prior decision of the Commonwealth Court: whether “(1) the injury was caused by the claimant’s violation of the order; (2) the claimant actually knew of the order; and (3) the order implicated an activity that was not connected with the claimant’s work duties.” Neither party disputed the satisfaction of the first two points. In setting a standard for the third point, the court said “[a]n 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.” (internal quotes omitted). Critton’s actions were not so far removed. It would be a stretch to call him a trespasser simply for using the back entrance when he was simply trying to clock in for work. The award of benefits was affirmed.
Editor’s Note: Workers compensation is usually interpreted on a broad basis, that injuries suffered in the course of and arising out of employment are compensable. Occasionally, an employee will be doing something so out-of-the-box that their actions bear no relation to their work duties, and the injuries will not be compensable. Here, the Commonwealth Court of Pennsylvania stated that the line between work-related and out-of-the-box is not so clear as Fine Arts Discovery tried to make it sound. Critton using the back entrance may have been a direct violation of the theater’s policy, but it wasn’t so far removed from his work duties–one manager admitted security guards were sometimes posted at the back entrance–that it bore absolutely no relation to them.