Opinion
Record No. 0233-94-3
Decided: January 3, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Steven H. Theisen (Midkiff Hiner, P.C., on brief), for appellants.
Carr L. Kinder, Jr. (Bird, Kinder Huffman, P.C., on brief), for appellee.
Present: Chief Judge Moon, Judges Barrow and Coleman
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
In this appeal from the Workers' Compensation Commission, we hold that the employer did not establish as a matter of law that the employee knowingly violated a rule that had been established for her safety. Therefore, we affirm the commission's award.
An employee is not entitled to compensation for an injury caused by the employee's willful misconduct. Code Sec. 65.2-306. To prove this defense in a claim for benefits, the employer must establish, among other facts, that the employee "intentionally undertook the forbidden act." Spruill v. C.W. Wright Constr. Co., 8 Va. App. 330, 334, 381 S.E.2d 359, 360-61 (1989). Unless we can say as a matter of law that the employer sustained its burden, then the commission's finding that the employee did not intentionally reach past the plexiglass guard and into the saw area while the machine was running is binding and conclusive upon us. Code Sec. 65.1-98; Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
The employee's testimony about the accident, together with other testimony about how the saw functioned, supported the commission's determination that the employee had turned off the saw and raised the blades before reaching into the machine. Thus, the commission's conclusion that the employee had not intentionally violated the employer's safety rule is supported by the evidence, and we cannot say, as a matter of law, that the employer carried its burden of proving otherwise.
Furthermore, the commission acted within its discretion in determining that the employee's testimony was credible. Because the deputy's specific finding on the employee's credibility was "based upon the substance of the testimony and not upon the witness' demeanor and appearance," it was "as determinable by the full commission as by the deputy." Goodyear Tire Rubber Co. v. Pierce, 5 Va. App. 374, 383, 363 S.E.2d 433, 438 (1987). Thus, the commission was not required to explain its "reasons for . . . 'believing one witness over another.' " Bullion Hollow Enterprises, Inc. v. Lane, 14 Va. App. 725, 729, 418 S.E.2d 904, 907 (1992).
The decision of the Virginia Workers' Compensation Commission is affirmed.
Affirmed.