COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
MARVIN V. TEMPLETON & SONS, INC.
AND
ROYAL INDEMNITY COMPANY
MEMORANDUM OPINION *
v. Record No. 1177-95-3 PER CURIAM
DECEMBER 29, 1995
DARNELL O. DIXON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(John M. Oakey, Jr.; Jill M. Misage; McGuire, Woods,
Battle & Boothe, on brief), for appellants.
(George L. Townsend; Chandler, Franklin & O'Bryan, on
brief), for appellee.
Marvin V. Templeton & Sons, Inc. and its insurer
(hereinafter collectively referred to as "employer") contend that
the Workers' Compensation Commission erred in holding that
Darnell O. Dixon's willful violation of a safety rule did not bar
him from receiving an award of compensation for injuries. 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 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.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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 question 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. In finding that employer did
not establish a willful violation of a safety rule, the
commission found as follows:
The employer had a written safety rule,
promulgated to the employees on February 15,
1993, requiring written permission from
qualified persons prior to entering a
confined space. The weigh hopper was not
listed as a confined space, but the claimant
testified that he considered it to be one.
We find that [sic] the rule reasonable and
that he had knowledge of that rule. However,
the evidence clearly shows that the Confined
Space Policy was not enforced by the employer
prior to the claimant's injury. Testimony
was presented from employees and supervisors
indicating that each group entered confined
spaces without a written permit and that no
reprimands were issued as a result of those
unauthorized entries. It appears that each
group considered oral communication to be an
adequate substitute. Because of this lack of
enforcement, we find that the employer has
not proven by a preponderance of the evidence
that the claimant violated the Confined Space
Policy.
These factual findings are supported by the testimony of
claimant, Foster, Cardwell, Landrum, Jordan, and Allen. All of
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these supervisors and employees testified that they or others had
entered confined spaces, prior to claimant's accident, without
obtaining a written permit and with employer's knowledge, and
that they had never been reprimanded for such conduct.
Accordingly, these findings are binding on appeal and provide
proof of employer's pattern or practice of failing to discipline
employees guilty of willful violations of a safety rule. Such
proof defeats employer's defense. See Vepco v. Kremposky, 227
Va. 265, 315 S.E.2d 231 (1984).
Moreover, employer's argument that claimant violated an
unwritten safety rule requiring oral permission from a supervisor
before entering a confined space is without merit. Claimant
admitted that such a rule existed. However, employer did not
dispute that claimant informed Landrum, acting plant
superintendent, that he had to repair a malfunction in the weigh
hopper by unhanging the gate. Claimant testified that the gate
could not have been fixed from outside the weigh hopper. He also
stated that, based upon the repair to be performed, he believed
Landrum knew he was going into the weigh hopper to do the work.
Claimant confirmed that he had been in a weigh hopper, on prior
occasions, with the knowledge of Landrum and Jordan. Based upon
claimant's testimony, the commission found that "claimant
subjectively felt that this communication was sufficient to
inform Landrum, who was on his 'first day as superintendent,'
that he would be working inside the hopper." "Where reasonable
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inferences may be drawn from the evidence in support of the
commission's factual findings, they will not be disturbed by this
Court on appeal." Hawks v. Henrico County Sch. Bd., 7 Va. App.
398, 404, 374 S.E.2d 695, 698 (1988). Accordingly, we cannot say
as a matter of law that the commission erred in finding that
employer's evidence failed to prove any wrongful intent on
claimant's part. Because of this finding, employer's defense of
willful violation of a safety rule cannot prevail. Virginia law
requires an employer to prove more than negligence or the
exercise of the will in doing an act; employer must prove a
wrongful intention. Uninsured Employer's Fund v. Keppel, 1 Va.
App. 162, 164, 335 S.E.2d 851, 852 (1985).
For the reasons stated, we affirm the commission's decision.
Because our rulings on the issues raised by employer dispose of
this appeal, we will not address the notice issue or proximate
cause issue raised by claimant in his brief.
Affirmed.
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