COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Lemons ∗ and Frank
Argued at Chesapeake, Virginia
GWALTNEY OF SMITHFIELD, LTD. AND
THE TRAVELERS INDEMNITY
COMPANY OF ILLINOIS
OPINION BY
v. Record No. 1342-99-1 JUDGE DONALD W. LEMONS
MAY 2, 2000
LYNNECIA HAGINS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
J. Derek Turrietta (William W. Nexsen;
Stackhouse, Smith & Nexsen, on brief), for
appellants.
Robert A. Rapaport (Richard E. Garriott, Jr.;
Knight, Clarke, Dolph & Rapaport, on brief),
for appellee.
Gwaltney of Smithfield, Ltd. ("employer") and Travelers
Indemnity Company of Illinois appeal the Workers' Compensation
Commission's decision that the employer failed to enforce a
safety rule and that Lynnecia Hagins' initial claim for benefits
was not barred by the provisions of Code § 65.2-306(A)(5). 1
Finding no error, we affirm.
∗
Justice Lemons prepared and the Court adopted the opinion
in this case prior to his investiture as a Justice of the
Supreme Court of Virginia.
1
Employer initially presented the claim as coming under
Code § 65.2-306(A)(5), "[t]he employee's willful breach of any
reasonable rule." The deputy commissioner decided that issue.
On appeal, the full commission in its resolution of the Code
§ 65.2-306(A)(5) issue, used the language "willful misconduct,"
I. BACKGROUND
From September 1995 until November 1995, Hagins worked at
Gwaltney of Smithfield in the Production Department. She was
given instructions on "hand safety" and was aware of the
employer's published safety rule: "Never put any body part,
object or clothing into operating or cycling machinery."
In November 1995, Hagins was transferred to the Sanitation
Department. Upon her transfer to the Sanitation Department,
crew leader Chuck Jones and employee Russell Collins trained
Hagins for one day on cleaning procedures. After her training,
Hagins did not work in the pigs' feet room again until February
12, 1996. On February 13, 1996, while cleaning the pigs' feet
machine, Hagins turned the machine on, washed it with a hose
and, in an effort to remove a piece of meat that was stuck,
placed her right hand into the stationary tray at the bottom of
the machine that was designed to funnel the debris down a hole.
Her hand was caught in the machine and was amputated. Hagins
has not returned to work after the accident.
On April 19, 1996, Hagins filed an application seeking an
award for medical benefits and compensation for temporary total
disability from February 14, 1996 and continuing from that date.
The employer defended on the grounds that the accident was
which is pertinent to Code § 65.2-306(A)(1). Because the issue
in this case was argued under Code § 65.2-306(A)(5) and not Code
§ 65.2-306(A)(1), and because the issue is Hagins' "willful
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caused by Hagins' willful breach of a reasonable rule or
regulation and that she was not disabled as alleged. The matter
was heard before a deputy commissioner on September 10, 1996.
At the hearing, Hagins testified that her direct
supervisor, Jones, "showed [her] just stick your hand in
it- [Jones] showed me to just stick your hand in and just scoop
[the debris] down the hole." She testified that she was
directed to stick her hand in the tray. She further stated that
Jones demonstrated to her how to clean the tray by "just
[sticking] his hand in there and just scoop[ing] it down the
hole." Hagins was asked how she cleaned out the debris that
"became stuck in the machine." She replied, "I always stuck my
hand in and scooped it down the hole." She stated that the
machine would be on and that she put her hand in the tray
because "[t]hat was the way [Jones] did it, the way, the way he
showed [her]." She testified that there were no signs
instructing how to clean the machine or prohibiting the
placement of hands in the tray area. When asked specifically
about the incident, Hagins testified that she put her hand in
the tray because "[t]hat's the way [Jones] did it and that's the
way I, I did it that week that I was there."
Joyce Wright, a co-worker of Hagins, testified that on at
least one occasion, Jones instructed her to use her fingers to
breach of any reasonable safety rule" and not "willful
misconduct," our analysis is limited to Code § 65.2-306(A)(5).
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remove meat that was stuck in the tray when the high-pressured
hose did not work even though the machine was running. Wright
also testified that she saw both Jones and George Eure, another
supervisor, use their hands to clean the machine while it was
running. Her testimony further revealed that she was never
"instructed to turn the machine off before placing [her] hands
in that tray."
Jones testified that he did not instruct Hagins to place
her hands in the tray of the pigs' feet machine. According to
Jones, Hagins was taught to clean the pigs' feet machine by
using a high-powered water spray and he instructed her not to
place her hands in the moving equipment. When meat debris
became stuck in the stationary tray, Hagins allegedly was
instructed to remove it with a water hose and, if the water hose
method failed, she was taught to disengage the machine before
using a mechanical object to loosen the blockage. Jones said
that he never placed his hands in moving equipment and that if
he ever did, it would have been improper.
During the same direct examination, however, Jones admitted
that he stuck his hand in the machine "[o]n occasions" when he
thought no one was watching him. On cross-examination, Jones
further admitted to putting his hand in the tray to knock debris
down the hole when he was by himself. He stated that he would
not be in trouble for doing so, "because [when he] did that, it
would be when [he] was by [himself]." According to Jones,
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"everybody takes shortcuts sometime [sic] and sometime [sic],
you know, if you get away with it, you get away with it." On
redirect examination, Jones testified that nine times out of ten
the machine would have been off if he placed his hand in the
tray to clear debris.
The deputy commissioner's opinion, dated October 10, 1996,
found that Hagins violated a safety rule and denied her
application for compensation and lifetime medical benefits. The
commission issued an opinion dated August 18, 1997, reversing
the deputy commissioner's opinion on the issue of whether or not
the employer enforced the safety rule. Appellants appealed the
commission's decision to this Court. We remanded the matter to
the commission based upon our determination that the
commission's ruling was not a final decision in the case because
the nature and extent of Hagins' disability had not been
determined.
The commission remanded the matter to the deputy
commissioner regarding the nature and extent of disability. The
deputy commissioner heard evidence and issued an opinion.
Appellants requested review, and both parties filed written
statements. The commission issued a ruling on May 14, 1999
re-affirming its determination that the employer failed to
enforce a safety rule and that Hagins' initial claim for
benefits was not barred by the provisions of Code
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§ 65.2-306(A)(5). Gwaltney and Travelers appeal the adverse
ruling of the commission.
II. WILLFUL BREACH OF A REASONABLE SAFETY RULE
The commission's findings of fact are binding on appeal if
supported by credible evidence. See Rose v. Red's Hitch &
Trailer Servs., Inc., 11 Va. App. 55, 60, 396 S.E.2d 392, 395
(1990); Code § 65.1-98. When, however, there is "no conflict in
the evidence, the question of the sufficiency thereof is one of
law." City of Norfolk v. Bennett, 205 Va. 877, 880, 140 S.E.2d
655, 657 (1965).
Code § 65.2-306 provides, in pertinent part:
When compensation not allowed for injury
or death; burden of proof.
A. 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;
* * * * * * *
B. The person or entity asserting any of
the defenses in this section shall have the
burden of proof with respect thereto.
Accordingly, employer bore the burden of proving that Hagins'
conduct was in "willful" disregard of a reasonable safety rule
established by employer and made known to her. In Brockway v.
Easter, 20 Va. App. 268, 456 S.E.2d 159 (1995), we stated:
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To prevail on the defense of a willful
violation of a safety rule, employer must
prove that: (1) the safety rule was
reasonable; (2) the rule was known to the
employee; (3) the rule was promulgated for
the benefit of the employee; and (4) the
employee intentionally undertook the
forbidden act.
Id. at 271, 456 S.E.2d at 161 (citation omitted). The forbidden
act in this case involved Hagins using her hand to remove meat
debris from the tray without first disengaging the machine.
"Whether the [safety] rule is reasonable and applies to the
situation from which the injury results, and whether the
claimant knowingly violated it, is a mixed question of law and
fact to be decided by the commission and reviewable by this
Court." Id. at 271-72, 456 S.E.2d at 161. The question whether
an employee was guilty of willful breach of a safety rule,
however, is a question of fact. See id. at 272, 456 S.E.2d at
161.
Although the evidence is sufficient as a matter of law to
demonstrate that Hagins violated the safety rule, when the
defense of willful violation of a safety rule is raised by the
employer, "the employee may rebut the defense by showing that
the rule was not kept alive by bona fide enforcement or that
there was a valid reason for [her] inability to obey the rule."
Buzzo v. Woolridge Trucking, Inc., 17 Va. App. 327, 332, 437
S.E.2d 205, 208 (1993). Whether the evidence was sufficient to
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demonstrate that the safety rule was not strictly enforced is a
mixed question of law and fact, and the commission's ruling is
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not binding on appeal. See Virginia Electric & Power Co. v.
Kremposky, 227 Va. 265, 270, 315 S.E.2d 231, 234 (1984).
Nevertheless, we hold that the commission correctly decided
that Hagins successfully rebutted the employer's defense of
willful breach of the safety rule. The evidence revealed that
at least one supervisor occasionally used his hand to remove
stuck meat debris without fear of any disciplinary consequences
from the employer. Jones' testimony indicates that although he
used his hands to remove meat debris from the tray approximately
one time out of ten while the machine was operating, he could
not recall whether he used his hands when training Hagins on the
machine. Wright's testimony indicates that she witnessed Jones
on several occasions remove meat debris from the tray by using
his hands and that she was instructed by Jones to use her hands
to remove meat debris while the machine was running.
Furthermore, Wright regularly used her hands to remove stuck
meat debris while the machine was engaged.
Based upon this evidence, employer's safety rule was not
being enforced strictly. "Proof of a pattern or practice of
failing to discipline employees guilty of willful violations of
a safety rule defeats the defense afforded an employer by [Code
§ 65.2-306], . . . when such violations occur under
circumstances charging the employer with knowledge and
acquiescence." Kremposky, 227 Va. at 270-71, 315 S.E.2d at 234
(quotation marks and citations omitted). Jones was Hagins' crew
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leader and was responsible for her training. He was also
responsible for enforcing the safety rules. We agree with the
commission that "[h]is testimony that he was aware that
employees sometimes took short cuts proves that someone in a
supervisory capacity representing the employer was aware that
the safety rule was being violated."
We find credible evidence to support the commission's
decision that the safety rule was not strictly enforced.
III. NATURE AND EXTENT OF LIABILITY
Because the commission was correct in reversing the deputy
commissioner and allowing Hagins' claim under Code
§ 65.2-306(A)(5), the commission correctly remanded the case to
the deputy commissioner for the determination of the nature and
extent of her disability.
IV. CONCLUSION
For the reasons stated above, the commission's decision is
affirmed.
Affirmed.
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