COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
JOSE O. PEREZ
MEMORANDUM OPINION *
v. Record No. 0525-97-3 PER CURIAM
JULY 29, 1997
BLAUCH BROTHERS, INC. AND
VIRGINIA CONTRACTORS GROUP
SELF-INSURANCE ASSOCIATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(A. Thomas Lane, Jr., on brief), for
appellant.
(Cathleen P. Welsh; Wharton, Aldhizer &
Weaver, on brief), for appellees.
Jose O. Perez (claimant) contends that the Workers'
Compensation Commission (commission) erred in finding that his
claim for an award of compensation benefits was barred by his
willful violation of a safety rule. Upon reviewing the record
and the briefs of the parties, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the commission's
decision. Rule 5A:27.
"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." Brockway v.
Easter, 20 Va. App. 268, 271, 456 S.E.2d 159, 161 (1995).
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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).
On appeal, we view the evidence in the light most favorable
to the prevailing party 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 December 5,
1995, claimant and a co-worker were using a manlift 1 to drill
four-inch holes in a ceiling. Because they were unable to move
close enough to the ceiling with the manlift to perform their
work, claimant placed a two-foot by six-foot plank on the top of
the guard rails and used the plank as a raised platform to
perform the work. While performing this work, claimant fell
approximately thirty feet to the floor below.
Prior to claimant's accident, Donald Stewart, a sales
representative for Equipco Rental Sales, instructed all
1
A manlift is a four by six foot platform with four guard
rails around it. The guard rails are approximately one and
one-half feet above the platform. A manlift can be operated to
move horizontally and vertically.
2
employees, including claimant, on the proper operation of the
manlift. Stewart instructed them not to climb on the guard
rails, not to place any objects from one side to the other to
stand on, and to not use boxes or ladders while on the manlift.
Stewart also told them to keep their feet on the deck of the
manlift. In addition, a co-worker testified that the employees'
supervisor had specifically instructed the employees not to use
ladders or boxes on the manlift in order to extend their reach.
Claimant admitted that he had read a warning placard on the
manlift, which cautioned employees not to stand or sit on the
guard rails.
Based upon this credible evidence, the commission properly
concluded that claimant violated a reasonable safety rule known
by him and promulgated for his benefit, and that he intentionally
undertook to perform the forbidden act. Claimant's willful
disregard of the safety rule proximately caused his injuries.
In its role as fact finder, the commission was entitled to
accept this evidence over claimant's self-serving testimony to
the contrary. In addition, the commission was entitled to accept
the testimony of claimant's supervisors, who denied any knowledge
of instances prior to claimant's accident when the safety rule
was not enforced. "In determining whether credible evidence
exists, the appellate court does not retry the facts, reweigh the
preponderance of the evidence, or make its own determination of
the credibility of the witnesses." Wagner Enters., Inc. v.
3
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
4
For these reasons, we affirm the commission's decision.
Affirmed.
5