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Keziah v. Workers' Comp. Appeal Bd.

COMMONWEALTH COURT OF PENNSYLVANIA
Oct 4, 2012
No. 739 C.D. 2012 (Pa. Cmmw. Ct. Oct. 4, 2012)

Opinion

No. 739 C.D. 2012

10-04-2012

Logan Keziah, Petitioner v. Workers' Compensation Appeal Board (Dutch Wonderland/Hershey), Respondent


BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE SIMPSON

In this appeal, Logan Keziah (Claimant) asks whether the Workers' Compensation Appeal Board (Board) erred in denying her benefits under the Workers' Compensation Act for violating a positive work order from her employer, Dutch Wonderland/Hershey (Employer). Specifically, Claimant asserts the positive work order doctrine does not prevent her from receiving benefits because her violation did not in fact cause her injury, and the violation directly implicated activity connected to her essential work duties. Upon review, we affirm.

Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.

In 2009, Claimant worked for Employer at the Dutch Wonderland amusement park as a ride operator. Specifically, her job included operating the Joust Coaster, a small roller coaster for children. While working, Claimant sustained an injury when the ride hit her and rolled over her right foot.

Shortly thereafter, Employer terminated Claimant's employment for violating company policy. Specifically, Employer determined Claimant violated its rules prohibiting ride operators from leaving their designated areas while their rides were in motion, and prohibiting them from going on the tracks. Moreover, Employer believed Claimant did so to entertain guests, which was unacceptable.

Claimant filed a claim petition alleging she sustained a work injury to her right foot and leg. Employer denied the allegations and asserted Claimant's injury occurred as a result of her violation of its positive work orders. Hearings ensued before a Workers' Compensation Judge (WCJ).

At the hearings, Claimant testified on her own behalf. Specifically, she testified that during the 2009 summer, she worked as a ride operator for Employer. One of the rides she operated was the Joust Coaster. According to Claimant, when operating that ride, her duties included making sure riders were properly restrained, checking for debris around the ride, and controlling the ride.

Claimant further testified that on the day of her injury, she heard a "clanking" noise coming from the Joust Coaster's brakes. WCJ Op., 2/24/11, Finding of Fact (F.F.) No. 101. At that time, she noticed debris on the track, and, with the ride still in motion, she walked out onto the track to remove it. However, she underestimated how long she had to remove the debris, and the roller coaster hit her. Immediately thereafter, Claimant walked back to the staging area and called for medical attention, which she ultimately received at a hospital. Following the incident, Employer terminated her employment for violating its safety rules.

On cross-examination, Claimant testified Employer trained her to work on several rides but never gave her ride manuals or an operating guideline for the Joust Coaster. As to her training on the Joust Coaster, Claimant admitted Employer instructed her to stand at the control console while the ride was in motion. However, she further testified, Employer told her she could leave the control console to quickly clear the track of debris if necessary. Additionally, Claimant testified her supervisors witnessed her walk on the tracks before and never said anything to her about this behavior.

In response, Employer presented the testimony of assistant ride supervisors Sara Sandhaus (Supervisor Sandhaus) and David Uwanawich (Supervisor Uwanawich) regarding Claimant's training. Furthermore, Angela Colon, manager of guest services (Manager Colon), Charles Henrich, a maintenance supervisor (Supervisor Henrich), and lead supervisors Laura Long (Supervisor Long) and Stephanie Good (Supervisor Good) testified about Claimant's job performance and the incident. In addition, Tim Ober, director of ride operations (Director Ober), testified to why Employer dismissed Claimant.

Supervisor Sandhaus testified she conducted Claimant's initial orientation. According to her, during orientation she gave Claimant general safety instructions, including telling her she must stay within designated areas when her ride is in motion. She further testified she instructed ride operators to stop their ride and call for help if they hear or see a mechanical problem with the ride. She further testified she provided Claimant with ride manuals, and that Claimant signed off that she read them.

Additionally, Supervisor Sandhaus testified that prior to becoming a supervisor, she operated the Joust Coaster. She testified the operator for that ride is to remain at the control console the entire time the ride is in motion. Furthermore, she explained that a ride operator had no work duties that could require walking on the track while the ride was in motion. She and Supervisor Long also both refuted Claimant's testimony that they saw her walk on the tracks at times prior to the incident.

Supervisor Uwanawich testified he provided ride-specific training to Claimant for the Joust Coaster. He testified he gave Claimant instruction consistent with Supervisor Sandhaus's testimony regarding the duties of a Joust Coaster operator. He also testified there was no reason for a ride operator to ever walk onto a ride's tracks, even to remove debris. As such, he testified he did not tell Claimant she could go on the track to clear debris while the coaster was in motion. He explained that if Claimant was following Employer's rules, the Joust Coaster could not possibly strike her.

As to the incident, Supervisor Good and Supervisor Henrich testified they each responded to the initial call for help. Supervisor Good explained that when she arrived, Claimant was unable to move her foot. Additionally, Claimant told her she thought she was safe on the track because she believed she knew where the ride would stop. Additionally, Supervisor Henrich testified Claimant told him she liked to stand in front of the coaster to pretend she could manually stop it. Manager Colon testified Claimant gave her a similar account at the hospital.

Both supervisors testified there were no safe areas on the track for a ride operator, or any reason within the ride operators' job duties to walk on the track. If there is a problem with a ride, the operator is to call for help and not attempt to fix it themselves. Moreover, Supervisor Henrich testified he inspected the ride after the incident and could not find a problem with the brakes or any debris on the track.

Director Ober testified Employer terminated Claimant's employment for violating its safety rules by going on the tracks to entertain guests while the Joust Coaster was in motion. Director Ober explained that although the safety manuals do not expressly state a ride operator cannot walk on the tracks while her ride is in motion, such actions are logically prohibited by the requirement that a ride operator remain in her designated area during her ride's operation.

In rebuttal, Claimant denied ever saying she went on the tracks to entertain guests. Claimant's mother and father corroborated that Claimant did not tell Manager Colon at the hospital she walked on the tracks to entertain park guests.

Additionally, Claimant called John Michael Gusino and Anthony Valentin Jr. to testify. Specifically, Gusino testified he worked as a ride operator. However, he conceded he did not work on the Joust Coaster. He testified that as a ride operator, he cleaned up around some rides while they were in motion, but that those rides were different in nature than the Joust Coaster. Additionally, he conceded Employer instructed him to call someone to fix any mechanical problem he encountered. In addition, Valentin testified he worked as a general sanitation worker for Employer. He testified his job included cleaning outside the ride areas, and that the ride operators cleaned inside the rides. However, he admitted he was not trained as a ride operator and was not familiar with the ride manuals.

The parties also presented conflicting medical testimony regarding the severity and nature of Claimant's injury and her ability to return to work. Apparently, medical bills are not at issue.
As the WCJ and the Board determined Claimant was not entitled to benefits, it is not necessary to consider the medical testimony.

Thereafter, the WCJ found Supervisor Sandhaus, Supervisor Uwanawich, Supervisor Good, and Director Ober credible regarding Employer's rule that all ride operators must remain in their designated areas while their rides are in motion. Moreover, the WCJ determined Employer maintained a specific rule for the Joust Coaster that the operator may not leave the control console during its operation. Furthermore, the WCJ rejected Claimant's testimony and Claimant's witnesses' testimonies to the contrary.

As to the incident, the WCJ determined Claimant injured her foot when the roller coaster hit her after she walked onto the ride's tracks while it was in motion. However, the WCJ determined Claimant's testimony regarding her reason for doing so, to remove debris, was not credible. To the contrary, the WCJ credited Supervisor Henrich's testimony that he could not find a mechanical problem or any debris around the tracks as Claimant indicated.

In sum, the WCJ determined Employer established it maintained a positive work rule that ride operators for the Joust Coaster must remain at the ride's control console when the ride was in motion, and Claimant's injury was caused by her violation of that order. Thus, the WCJ concluded Claimant's injury did not occur in the course and scope of her employment and denied her claim petition. Claimant appealed.

The Board affirmed, determining Claimant violated Employer's positive work order requiring the Joust Coaster ride operator to remain at the control console while the ride was in motion. Moreover, the Board determined Claimant's injury was the result of her violation. Furthermore, the Board concluded the work order did not implicate an activity connected to Claimant's work functions as her duties did not require her to leave the control console or walk onto the tracks while the ride was in motion. Claimant petitions for review.

This Court's review is limited to determining whether there was a violation of constitutional rights, an error of law committed, or a violation of Board procedures, and whether necessary findings of fact were supported by substantial evidence. Habib v. Workers' Comp. Appeal Bd. (John Roth Paving Pavemasters), 29 A.3d 409 (Pa. Cmwlth. 2011). --------

Claimant argues the Board erred in determining she was precluded from receiving benefits under the positive work order doctrine, as her injury was not causally related to her work rule violation, and the violation was materially connected to her essential work duties.

As an affirmative defense to a claim for benefits, an employer may assert the employee's injury occurred as a result of her violating a positive work order, and thus, outside the course and scope of her employment. Scott v. Workers' Comp. Appeal Bd. (Ames True Temper, Inc.), 957 A.2d 800 (Pa. Cmwlth. 2008). For an employer to establish a violation of a positive work order caused the employee's injury, the employer must establish "(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." Asplundh Tree Expert Co. v. Workers' Comp. Appeal Bd. (Humphrey), 852 A.2d 459, 462 (Pa. Cmwlth. 2004) (citing Nevin Trucking v. Workmen's Comp. Appeal Bd. (Murdock), 667 A.2d 262 (Pa. Cmwlth. 1995)).

Here, Claimant does not refute she knew and violated Employer's safety rules for a Joust Coaster ride operator. Thus, we turn to whether Claimant's violation of Employer's work orders was the cause in fact of her injury.

When determining whether an action was the cause in fact of an injury, we ask whether a direct causal connection exists between the employee's actions and her injury, or, in other words, whether the injury would have occurred but for her conduct. Thomas Lindstrom Co. v. Workers' Comp Appeal Bd. (Braun), 992 A.2d 961 (Pa. Cmwlth. 2010).

Here, Claimant would not have sustained her injuries but for her decision to leave the control console and walk onto the track while the Joust Coaster was in motion. Bd. Op, 3/21/12, at 3; F.F. Nos. 40, 100; Reproduced Record (R.R.) at 149a-150a. As such, Claimant's violation of Employer's positive work order directly led to Claimant's injuries, and constitutes a cause in fact of those injuries.

Next, we consider whether Claimant's rule violation was connected to her essential job duties. Where an employee sustains an injury as a result of violating a rule regarding an essential job function, such injury is compensable. Asplundh Tree Expert Co. (citing Dickey v. Pitts. & Lake Erie R.R. Co., 297 Pa. 172, 146 A. 543 (1929)). However, an employee may not recover if her injury causing behavior is not connected to her work duties. Habib v. Workers' Comp. Appeal Bd. (John Roth Paving Pavemasters), 29 A.3d 409 (Pa. Cmwlth. 2011).

In Dickey, our Supreme Court explained the difference between compensable work order violations, which are equated to negligent job performance, and work order violations that bar compensation. In that case, the employee worked at a train yard. To get across the yard, the employer constructed a walkway to the employee's shop, which it instructed the employee to use to avoid the moving trains. Tragically, one day, the employee took a short-cut across the tracks instead of using the walkway and was fatally struck by a train. Determining the employee's job duties did not require him to walk across the tracks when crossing the yard, the Court denied benefits.

In sum, the Court held, "injuries from those acts which are in direct hostility to ... positive orders of the employer concerning instrumentalities, places, or things about or on which the employee has no duty to perform, and with which this employment does not connect him, are not compensable." Dickey, 297 Pa. at 175, 146 A. at 544. To further explain the difference between these two types of work rule violations, the Court provided the following example:

[if] [a]n engineer with a red signal against him runs his engine past it and is killed; the violation of the rule and the order, while wilful, is a compensable negligent act. On the other hand, a brakeman who has no duty to perform on the engine gets on board, starts it, runs by the same block and is killed ... he cannot recover.
Id. at 175, 146 A. 544-45.

More recently, in Asplundh Tree Expert Company this Court applied our Supreme Court's rationale in Dickey in considering whether an employee's injury resulting from his failure to abide by his employer's safety rules was compensable. There, the employee, a tree trimmer failed to properly secure himself to a tree when climbing, fell, and sustained injuries. This Court determined the employee's violation of a safety rule, tying into the tree, while completing an essential activity of his job, climbing the tree, was so connected to his job duties that his injury was compensable. Asplundh Tree Expert Co.

Here, unlike the tree trimmer in Asplundh Tree Expert Company, who the WCJ credited as merely doing an essential job function in an unsafe manner, Claimant did not sustain her injuries while performing her duties as a ride operator. Before the WCJ, Claimant failed to present a credible reason connected to her job for leaving the ride's control console and walking onto its tracks while the coaster was in motion. F.F. No. 101. To the contrary, Employer's witnesses consistently testified the Joust Coaster operator had no duties requiring her to walk away from the control console or ever onto the ride's tracks. Bd. Op. at 3-4; F.F. Nos. 30-31, 40, 48; R.R. at 62a-64a, 66a, 69a, 81a-82a, 112a-116a. See Nevin Trucking (a truck driver's injuries from changing a tire where he had no duty to change tires and was instructed not to do so were not compensable).

As such, Claimant did not merely operate the Joust Coaster in a negligent manner; rather, she abandoned her job duties and engaged in behavior disconnected from her essential functions at work. See Habib (employee not engaged in job function when injured entertaining himself during a lull in his work). Furthermore, Claimant entered a part of Employer's property that it prohibited her from going. See Dickey. Thus, Claimant's violation of Employer's positive work order removed her from the course and scope of her employment. Therefore, Claimant's argument is meritless.

Accordingly, we affirm.

/s/_________

ROBERT SIMPSON, Judge ORDER

AND NOW, this 4th day of October, 2012, the order of the Workers' Compensation Appeal Board is AFFIRMED.

/s/_________

ROBERT SIMPSON, Judge


Summaries of

Keziah v. Workers' Comp. Appeal Bd.

COMMONWEALTH COURT OF PENNSYLVANIA
Oct 4, 2012
No. 739 C.D. 2012 (Pa. Cmmw. Ct. Oct. 4, 2012)
Case details for

Keziah v. Workers' Comp. Appeal Bd.

Case Details

Full title:Logan Keziah, Petitioner v. Workers' Compensation Appeal Board (Dutch…

Court:COMMONWEALTH COURT OF PENNSYLVANIA

Date published: Oct 4, 2012

Citations

No. 739 C.D. 2012 (Pa. Cmmw. Ct. Oct. 4, 2012)