Safety and OSHA News

Is smashing a bowling ball work-related?

Imagine this: Employees at a work site have some down time while waiting for materials to arrive. To amuse themselves while waiting, they try to smash a bowling ball with a sledge hammer. An employee is injured. Does the injury quality for workers’ comp benefits?

Charles Habib worked for John Roth Paving Pavemasters as a laborer.

One day while part of a work crew, the employees were waiting for a delivery of a truckload of asphalt. While they were waiting, one of the workers found a bowling ball next to the parking lot where they were working.

First they used the bowling ball as a shot put.

Then a challenge arose to see if anyone could break the bowling ball with a sledge hammer.

Habib swung the sledge hammer and cracked the ball.

The crew foreman told him to “knock it off.” The foreman also said he wouldn’t take him to the hospital if he were injured.

Habib struck the ball a second time. A piece broke off and struck him in the eye.

He suffered a serious cut, resulting in a total loss of that eye.

Comp board disagrees with judge

Habib filed for workers’ comp benefits, claiming he suffered a work-related injury in the course and scope of employment. The company said he shouldn’t get comp because he violated a “positive work order” (the foreman telling him to “knock it off”). The matter went before a Workers’ Compensation Judge (WCJ).

The WCJ granted benefits to Habib, using this reasoning: Habib didn’t put himself deliberately at risk, he was just careless. Carelessness didn’t take him outside the scope of his employment. The WCJ also didn’t think that the foreman’s statement to Habib to “knock it off” was a positive work order.

The company took the case to the Workers’ Compensation Appeal Board.

The Board reversed the ruling. It decided Habib had violated a positive work order, and that prohibited him from receiving workers’ comp.

Habib appealed to a state court.

The court sided with the company. It ruled that the three requirements for establishing a positive work order violation had been met:

  1. The injury must be caused by the violation of the work order.
  2. The employee must know about the work order.
  3. The order must implicate an activity not connected with the employee’s work duties.

Good news for employers in Pennsylvania, and other states with “positive work order violation” exceptions: If an employee is injured on the clock but while goofing off on a non-work activity, you’re not necessarily on the hook for workers’ comp if a supervisor told the worker to stop the horseplay.

What do you think about the court’s decision? What do you think about the reasoning used by the WCJ who said this was a work-related injury? Let us know in the comments below.

(Habib v. Workers’ Compensation Appeal Board, Commonwealth Court of PA, No. 2612 C.D. 2010, 8/12/2011)

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Comments

  1. He should’ve been fired.

  2. BlackGold says:

    Someone should have explained to these knuckleheads that isn’t what is meant by a ‘split’.

  3. Dirk Ward says:

    The Foreman should have stopped the horseplay at the shot put nonsense and had the bowling ball tossed before it escalated to the point where someone lost an eye. All this kind of action should have been noticed long before it got worse; and yeah, the guy who lost his eye, should have been fired.

  4. That’s ridiculous. I agree with Jeff. Get a bunch of “boys” a hammer and something to destruct, and they lose all common sense.

  5. I think he got what was coming to him, an injury that will remain a lasting memory and possibly fired.

  6. The reasoning of the judge seems fine to me, but I have to wonder if any of the other coworkers who also participated in the horseplay (or at least watched it and said nothing) were counseled or discipliined. It kind of seems like this company accepts using bowling balls as shot puts, but does not allow the use of hammering on them.

  7. You know what they say, it’s all fun and games until someone loses an eye.

  8. No work comp and no job should have been the result.

  9. What if no one in a supervisory position saw what was going on? Would that make a difference in the ruling?

  10. Common Sense says:

    This is horesplay and has nothing to do with what the employee is being paid for. How this individual could have the gaul to even apply for WC is beyond me. WC is for those employees, who in the course of performing work for an employer sustain an injury due to the nature of the work, it is not another form of welfare. The Judge should be removed from the bench and become a social worker. What alarms me is that positive work order was the grounds for denial. Supervisors, formans and managers can’t stop someone from doing what the want. I am pretty sure this isn’t a day care setting, we are talking about grown men doing what they wanted during some down time. We as a society need to take responsibility for our own actions and stop expecting someone else to pay for our short comings.

  11. I think ke should not rec. any workers comp. benifits…….that would be like saying ok I wrecked my car at work, playing games and wasting time, ON THE CLOCK, waiting for supplies to be delivered. Will your insurance comany pay you any benefits?

  12. I think the word is hoseplay and that is usually considered a violation. The employees was not instructed to hit the bowling ball. He should be denied the workers comp.

  13. Thank heavens for the WC board and the state for siding with the company!!! The WCJ should take a serious look at his “reasoning”…not at risk???! Give me a break.

  14. sheralroh says:

    Seriously, time for people to grow up and take responsibility for their own actions. I side with the company. Why does there always have to be someone supervising grown men…. really!!!!!!

  15. Safety Specialist says:

    We have an SOP that clearly states no “horseplay”. If this were to happen here they would be in violation of that SOP and corrective action up to termination could occur. I would have to think most companies have a an SOP like that. The employees knew it should not have been done, the supervisor told them to stop which should have been good enough. I agree. No comp benefits, and termination (for possibly all).

  16. Unless you work at a bowling ball splitting factory, even an IDIOT should know better. Once the supervisor told him to stop, he DEFINITELY should’ve known better AND stopped. Sometimes people just have to get hurt to learn the lesson of don’t do what you should’ve known not to do in the first place. You can’t fix stupid and you can’t protect people from themselves…this is why lawyers have it made. In no way should Popeye receive WC benefits!

  17. I still find it disturbing that nothing was said when the workers were using the bowling ball as a shot put. If the supervisor had later missed seeing them hammering the bowling ball, and then someone had been hurt, I would tend to say the company was responsible. It does no go to have an SOP that says No Horseplay, but then ignore when it happens. Companies that have safety rules on the book that they don’t enforce deserve to get in trouble. Supervisors shouldn’t have to be around all the time to enforce rules, but, when they see rules being broken, they need to enforce them.

  18. He should be fired, sued by the company civilly for committing fraud by attempting to gain work comp in violation of the “positive work order” rule, (by filing for Work Comp, he committed fraud, theft, and potentially embezzlement of company funds, and as Work Comp has already paid out on his behalf and because of his unemployed situation, won’t be able to repay all of those funds). Further evidence of theft would come from the fact that the company’s “mod” rate will rise, thus affecting future premiums. This can be stated with sum certain.

    Furthermore, he should be referred to the local District Attorney for prosecution on similar criminal charges. If the monetary amounts reach the minimum thresholds for Pennsylvania, he can be prosecuted for felonies (which carry jail time of at least a year to life, and fines of at least $1,000 or higher, or both). If two states are involved, the Federal authorities can be involved, and charge him for violations of Federal law, which carries even higher penalties, and minimum sentences, no early release.

    After he gets out of jail, he’ll most likely have to file bankruptcy because he’ll be unable to repay the civil judgments and medical bills remaining for his care. At that point, the State should come in and take custody of his children, as he obviously won’t be able to raise them. The State will require he pay at least a minimum amount of child support. He won’t be eligible for any social services because he’ll be a convicted felon. When he can’t pay child support to the State, jail him again and revoke his drivers license.

    Ultimately, the goal is to break him, physically, mentally, totally. Let him serve as a lesson to all others who want to play on company time.

  19. It would seem that the supervisor took a lighthearted approach to this” if you get hurt I’m not taking you to Hospital” so it is reasonable for the employee to think he was kidding about cutting it out. Without knowing what had previously allowed on the work site during down time, he may indeed have a case

  20. Dale, maybe the supervisor wasn’t in the area when they were using it as a shot put. That could be why they were doing it. He’s not a babysitter.

  21. The merciless responses to this tragic accident are heartbreaking.

    So some poor schnook took up a goofy challenge and attempted to emerge the ball busting hero but instead lost an eye.

    The guy LOST AN EYE and “Bob” wants to “break him, physically, mentally, totally. Let him serve as a lesson to all others who want to play on company time.”

    Whatever happened to compassion and empathy?

    This guy will have to live the rest of his life WITHOUT ONE OF HIS EYES!

    I haven’t read the original WCJ’s opinion but it seems to me that the foreman should have taken the bowling ball and thrown it in the trash of put it in the cab of the truck to remove the temptation to continue the macho competition.

    How old is Habib? I’ll bet he is just a kid.

    Shameful reactions to this from my fellow Americans.

  22. Mr Id, It is sad about what happened, but there is no one to blame but himself. He should have listened to his foreman. Also Bob doesn’t speak for all of us with his comment, but he is right about this incident being an example to all. If Habib only had listened instead of defying his foreman’s orders he would still have both eyes.

  23. Mr. Id,

    You can’t tell a ridiculous reply to a ridiculous situation? We wasted how much money fighting this claim … probably 10x more than the claim itself … to keep this “poor schnook” from getting a dime …

    Think about it. Work Comp Court. Work Comp Appeals Court. State Appeals Court. These cases aren’t cheap. Now throw in the time and energy of company officials who had to gather documents, answer interrogatories, go to depositions, attend court.

    This case is a “dog” all the way around.

    Yeah, the guy shouldn’t have been playing on the company dime. Yeah, he lost his eye — and you are right, he’s probably a young guy.

    But don’t confuse my ridiculous, over the top reply … it was meant to bring out the ridiculous over the top prosecution of this case that left this guy with nothing — with any real desire to crush every goofball idiot with a bowling ball and a sledgehammer.

    Where is the line between “goofing off” and “unrelated work activity” anyway?

    I think we’ve got a clearer answer now … however, will this filter down to the rank and file, and …. will they internalize it and apply the lesson next tie they find a bowling ball in the parking lot next to the worksite and attempt to amuse themselves — for what sounds like an hour or more — before someone gets injured?

    Hmmmmm, seems to me that we’ll see more injuries.

    Bob

  24. I think that when a denied stupid workers comp claim like this one, goes through all the appeals courts and still gets denied, all the time and money wasted on that claim should be paid for by the one filing the claim and their lawyer who knows better. Maybe that would stop the illegal claiming for workers comp.

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