COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia
MARION LEE WALLACE, JR.
MEMORANDUM OPINION* BY
v. Record No. 2596-00-1 JUDGE JERE M. H. WILLIS, JR.
JUNE 5, 2001
PRODUCTION SUPPORT SERVICES AND
GREAT AMERICAN INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Thomas W. Carpenter (Thomas W. Carpenter,
P.C., on brief), for appellant.
Daniel E. Lynch (John T. Cornett, Jr.;
Williams & Lynch, on brief), for appellees.
On appeal from a decision of the Workers' Compensation
Commission, Marion Lee Wallace, Jr. contends that the commission
erred in holding that his claim for benefits was barred by his
willful violation of a safety rule. Finding no error, we affirm
the decision of the commission.
I. BACKGROUND
On appeal, we view the evidence in the light most favorable
to the party prevailing below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
So viewed, the evidence established that on October 9,
1998, Wallace was employed as a forklift warehouse worker with
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Production Support Services (PSS), which had assigned him to
work at Canon of Virginia's Newport News plant. On that day,
Wallace and a co-worker, Patrick Wade, were hanging a safety
banner on a fence in the plant. Wallace and Wade tried to
obtain a lift cage, but the cage was being used elsewhere in the
plant. They put a wooden pallet on a forklift and used it as an
elevator so that Wallace could stand on it and be lifted to
secure the banner.
Wallace was lifted approximately "[f]ifteen or twenty feet"
and tied one end of the banner. He hung on the fence for thirty
to forty seconds while Wade cleared a space, and then he stepped
back onto the pallet and secured the other side of the banner.
Upon coming down, he observed that the banner was crooked. He
went up again. The pallet "busted . . . . It just split."
Wallace fell, injuring his head, shoulder and knee.
Wallace admitted that he was experienced with forklifts.
He had previously worked for another company as a safety
supervisor and forklift operator. He further admitted that when
he began working for PSS, he was shown a forklift safety video
and was given a test on forklift operation. He received a
forklift safety certificate on January 23, 1998, reflecting that
he scored 100% on the test. He recalled the video saying that
one should not be raised up on the forks of a forklift, but he
contended that it said nothing about a person's being raised on
a pallet. He recalled nothing about using a cage lift.
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Wallace testified that he saw no danger in being raised on
a pallet. He noted that the wooden pallets held industrial
items weighing anywhere from 200 pounds to two tons. He weighed
only 165 pounds. He denied that being elevated on a pallet was
a violation of PSS or Canon's safety rules. He acknowledged
that neither Richard Hamlin nor Dan Tucker told him to proceed
that way.
Booker T. Young, PSS's general manager, testified that
Wallace was shown a forklift video, which was approved by OSHA
and Canon of Virginia, after which he took a test. He confirmed
that the safety video forbade lifting personnel on the forks of
a forklift. He admitted that it did not specifically mention
the use of a pallet, but said that it emphasized the necessity
of using a cage.
Young further testified that personnel were to be lifted by
a forklift only while they were within a safety cage and that
this rule was strictly enforced, both by PSS's on-site
supervisor and by the supervisor for the company where the
person was assigned, in this case Hamlin. He stated that this
rule was in place for the workers' "individual safety" and that
other employees had been terminated for forklift violations
because there are "no second chances regarding safety while
operating the forklift."
Richard Hamlin, group leader for the receiving area at the
time of the accident, testified that on October 9, 1998, as he
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does every morning, he held a meeting with his group. At this
meeting, he informed the group of "ten to twelve" things that
had to be done that day. He testified that hanging the safety
banner was one of those things. He said that he did not assign
this task specifically to Wallace, but that Wallace took it upon
himself.
Hamlin further testified that the proper procedure for
hanging the banner would have been for Wallace and Wade to
obtain either a manual crank lift or a safety cage to be used
with the forklift. He stated that he did not see Wallace on the
pallet on the forklift. He admitted that he saw Wallace
standing on a metal pipe holding onto the fence, and he told him
to "get down." He stated that he first learned that Wallace had
used a pallet to hang the banner after the accident. He
testified that in his twelve years, he knew of no instance where
there were not enough lifts or cages available for people who
needed to be lifted. He said if the proper equipment were not
available, a worker should wait until it was.
The deputy commissioner held that Wallace's accident and
injuries resulted from his willful violation of a safety rule
and denied his claim for benefits. The full commission
affirmed.
II. WILLFUL VIOLATION OF A SAFETY RULE
Code § 65.2-306(A)(5) provides as follows: "No
compensation shall be awarded to the employee . . . for an
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injury . . . 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 on the defense of willful violation of a safety
rule, the 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." Brockway
v. Easter, 20 Va. App. 268, 271, 456 S.E.2d 159, 161 (1995).
Whether the 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. But the questions
of whether an employee is guilty of willful
misconduct and whether such misconduct is a
proximate cause of the employee's accident
are issues of fact.
Id. at 271-72, 456 S.E.2d at 161. Factual findings made by the
commission will be upheld on appeal if supported by credible
evidence. See James v. Capitol Steel Constr. Co., 8 Va. App.
512, 515, 382 S.E.2d 487, 488 (1989).
The forklift safety video, which was admitted into
evidence, under the category of "Prohibited Actions" states:
"Especially never allow anyone to stand or ride on the forks or
use the forks as an elevator. The only approved method of
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hauling or hoisting workers is in a secured platform or safety
cage."
In ruling that PSS proved that Wallace willfully violated
this safety rule, the commission found as follows:
Canon and [PSS] had a rule prohibiting the
use of lifting a worker on a forklift
without a safety cage. This rule was
designed to provide for the safety of
employees. [Wallace] knew the rule,
inasmuch as the safety videotape
specifically noted under prohibited acts
that individuals were not to ride on
forklifts, nor were they to be lifted. The
video specifically stated that the only way
to lift people was in a caged forklift.
[Wallace] does not contend that he did
not perform the act. In fact, [he]
testified that he did not believe it was
dangerous. There is no evidence that there
was any type of emergency or time limit for
putting up the banner. While [Wallace]
indicated that the first task he was
assigned that morning was to put up the
banner, Mr. Hamlin testified that no one was
assigned this task. [Wallace] elected to do
so on his own. [Wallace] indicated his
co-worker went to get a caged forklift, but
they were being utilized elsewhere. This is
contrary to the testimony of Mr. Hamlin, who
indicated that in his 12 years there, he had
never experienced a time when the proper
equipment, be it a caged forklift or another
vehicle used for this purpose was not
available. Even if the appropriate
equipment was not available, the evidence
fails to establish that this task could not
have been deferred until such time as it
could be procured.
The commission's factual findings are supported by credible
evidence, including the testimony of Hamlin and Young. Their
testimony and review of the safety video support the finding
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that a rule prohibited lifting a worker on a forklift without a
safety cage and that this rule was designed to provide for the
safety of employees. Wallace knew the rule. The safety video
specifically noted that individuals were not to ride or be
lifted on forklifts. The video stated that people should be
lifted only in a cage. Wallace violated this rule and as a
consequence was injured. The commission did not err in ruling
that he is barred from receiving benefits under the Workers'
Compensation Act.
We affirm the commission's decision.
Affirmed.
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