Opinion
Record No. 1978-92-1
August 31, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Robert J. Macbeth, Jr.; Rutter and Montagna, on brief), for appellant.
David W. Drash (Denton Drash, on brief), for appellees.
Present: Judges Baker, Willis and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Jon A. Smith (claimant) appeals from a decision of the Worker's Compensation Commission (commission) which denied him temporary total disability benefits. Claimant contends that insufficient evidence supports the commission's finding that claimant's injury resulted from his willful violation of a safety rule. We disagree and affirm the decision.
The parties are fully conversant with the record, and this memorandum opinion recites only those facts necessary to a disposition of the issue on appeal.
The evidence discloses that claimant was injured on July 26, 1991, during construction of a bridge for R. R. Dawson Bridge Company (employer). Incidental to his employment, claimant was required to carry "panels" of "decking" to the "work area" and attach them to the beams of the bridge to form its "floor." On the occasion of his injury, claimant attempted to "kick" a panel into place, but "it didn't catch," "went out from under [him]," and he fell "twenty-eight feet."
It is uncontroverted that a "lifeline" was located at the work area and employees were instructed to secure themselves to this cable whenever "exposed to a fall greater than four feet." Claimant was provided a "safety belt" for attachment to the lifeline and was aware that he was "supposed to tie off." Connection of the belt to the lifeline would have prevented the accident, and claimant admitted that he would "be paying for [his] mistake for the rest of [his] life."
Code § 65.2-306(A) provides, in pertinent part:
No compensation shall be awarded to the employee or his dependents for an injury or death caused by . . . 5. The employee's willful breach of any reasonable rule or regulation adopted by the employer and brought, prior to the accident, to the knowledge of the employee.
"To prevail upon a defense of willful misconduct . . . [an employer must] establish (1) that the safety rule was reasonable, (2) that the rule was known to [employee], (3) that the rule was for [employee's] benefit, and (4) that [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). However, it is not necessary for the employer to prove that the employee purposefully determined to violate the rule, only that, "knowing the safety rule, the employee intentionally performed the forbidden act." Id. at 334, 381 S.E.2d at 361.
"[W]hether an employee was guilty of willful misconduct is a question of fact." Id. at 333, 381 S.E.2d at 360. A factual finding by the commission "will not be disturbed on appeal" unless unsupported by credible evidence. Rose v. Red's Hitch Trailer Servs., Inc., 11 Va. App. 55, 60, 396 S.E.2d 392, 395 (1990).
The commission found that claimant "willfully" disobeyed the safety rule that required attachment to the lifeline, conduct which "was the proximate cause of his injury." This conclusion is well supported by the evidence and will not be disturbed on appeal. Accordingly, the decision of the commission is affirmed.
Affirmed.