COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Frank and Huff
UNPUBLISHED
Argued by teleconference
SERGIO GUTIERREZ-LAZO
MEMORANDUM OPINION* BY
v. Record No. 2280-13-4 JUDGE ROBERT P. FRANK
JUNE 3, 2014
COBURN & CLAY BUILDING DEVELOPMENT
CORPORATION AND THE UNINSURED EMPLOYER’S FUND
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
John B. Delaney (Michael G. Nye; Delaney, McCarthy & Colton,
P.C.; Carter & Coleman, PLC, on briefs), for appellant.
John C. Duncan, III (William S. Sands, Jr.; Duncan and Hopkins,
P.C., on brief), for appellee Coburn & Clay Building Development
Corporation.
Joshua M. Wulf (Emily S. Kirkpatrick; Midkiff, Muncie & Ross,
P.C., on brief), for appellee The Uninsured Employer’s Fund.
Sergio Gutierrez-Lazo, claimant, appeals a decision of the Workers’ Compensation
Commission denying him benefits. On appeal, claimant contends a majority of the commission
erred in denying benefits: (1) in finding claimant willfully violated a known safety rule,
specifically, using a table saw to cut a small piece of wood, when employer’s Rule 1.10 notice
did not include such an alleged violation; (2) in finding employer presented credible evidence
that the claimant willfully violated a known safety rule when the claimant was injured by not
keeping his hands away from the saw blade while cutting a board; (3) in finding employer
showed claimant’s failure to use a “push stick” caused claimant’s injury; and (4) in finding
employer presented credible evidence that claimant willfully violated a known safety rule when
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
claimant was injured while operating a table saw without the saw’s safety guard in place.
Additionally, claimant contends a majority of the commission erred in denying benefits based
upon safety guard and push stick violations when neither rule was strictly enforced by employer.
We hold credible evidence supports the findings that claimant intentionally violated a
known safety rule. Thus, we affirm the commission’s denial of benefits.
BACKGROUND
Claimant was working as a carpenter for Coburn & Clay Building Development
Corporation (employer) on November 23, 2009. On that day, claimant was installing baseboards
in the kitchen of a home that employer was constructing in McLean.
The claimant was born in El Salvador and testified through an interpreter before the
deputy commissioner that he speaks, reads, and writes in Spanish. He can speak some English,
but asserts he cannot read or write in English. He testified that on November 23, Greg Lough,
his supervisor, instructed him to finish the baseboard project in the kitchen. He measured and
cut four or five pieces of wood with a table saw before he was injured when his left hand came in
contact with the saw blade. He explained that no safety hood covered the saw blade on the table
saw. Claimant had never seen a guard on the saw at any time during his four years with
employer. He demonstrated at the hearing how he moved the wood towards the saw with his
right hand and then moved his left hand over the blade towards the end of the wood. When
asked if he knew why he cut himself, the claimant responded, “To do it fast.” Claimant stated he
did not need to use a “push stick” that day because the wood was large enough to cut without
using one. Claimant agreed that in an answer to an interrogatory he stated that he received his
injury “as I moved my left hand over the saw blade with the intention of holding down part of
the piece of wood when my left hand came in contact with the blade.”
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Claimant testified that the only safety instruction he received from employer was “just to
be careful[,]” even when given a new tool to use. Claimant acknowledged that, as an example,
employer told him that if he put his hands too close to the blade he could get seriously hurt. He
was given no safety manuals, and no one from employer’s business spoke Spanish. He
communicated through a combination of English and “gestures.”
Claimant stated that on the day he was injured, Lough had used the table saw earlier in
the day.
On one occasion, claimant’s supervisor Lough observed claimant use a miter saw
incorrectly in that he had the guard in a “chalked up” and unsafe position. He brought this to
claimant’s attention, and claimant complied with Lough’s request to unchalk the guard. Lough
communicated with claimant in English and felt that claimant did not have any difficulty
understanding him. Lough explained that with a table saw, there are certain situations where the
guard needs to be removed, depending upon the type of cut being made to the wood. However,
after making an atypical cut, the user is expected to replace the guard. Lough stated that
claimant had been instructed on this procedure.
Lough stated that after the accident he examined the table saw where claimant was
injured. Based on the size of the wood he saw lying next to the table, Lough opined that the
wood should have been clamped down and cut with a jigsaw. Claimant should have known this
because claimant had on a previous occasion tried to cut a similarly sized piece of wood with a
table saw and Lough informed him that he needed to use a jigsaw. That incident occurred on
September 8, 2009, and claimant did not follow Lough’s instructions. Lough told claimant that
if he was not going to follow safety procedures, he must go home. Claimant left and did not
return to work for three days.
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Lough explained that using a jigsaw would have taken more time because claimant would
have had to get the saw from Lough’s truck. Lough stated that his tools were never off limits
from claimant. After inspecting the scene where claimant was injured, Lough indicated that
what he observed on the date of the accident “resembled almost the same scenario that happened
on September 8.”
Lough testified that he explained all safety procedures to claimant:
I would ask [claimant] if he had experience with the tool.
If he informed me yes . . . I would take him at honesty for his
word. If I saw an improper practice with the tool that he said he
had experience with I would try to correct it and show him a
proper way or a better way or, “That’s the wrong application. We
don’t use that tool.” Um, I’d bring out some of my personal tools
which they did not have experience with in some cases and - - - or
he did not have experience with in some cases. I’d give a
demonstration, tell him the procedures, and then let him get some
what we call field experience starting out on a scrap piece of wood,
use the tool.
Lough also testified that claimant had been instructed that if he was making a normal cut
and the guard is off from the table saw, he must replace the guard before using the saw. Lough
stated that claimant always acknowledged that he understood the safety rules and that he
responded in English.
Lough denied that there were never any guards on the table saws. He also pointed out
that he never used the table saw on the day claimant was injured.
Clay Cormicle, an officer with employer’s corporation, testified that safety practice was
an “ongoing process.” He stated that safety guards needed to be on the saws at all times, unless
it prevented making a certain cut. He indicated that the employers talk to the employees on an
ongoing basis about safety procedures. Specifically, Cormicle stated that when the company
initially purchased the table saw, it was shown to all employees and they were instructed on how
to use it safely. He testified that everyone who worked for him was told, “Never . . . put your
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hands anywhere near a table saw blade or a skill saw blade . . . . ” Employees were instructed on
when to use a push stick.
Matthew Cormicle, another corporate officer, stated that one of his roles at the company
involved supervising the jobsites. He recalled that “in regards to the table saw, . . . I would go
over it whether [the employees] knew it or not and make certain that they would demonstrate to
me that they knew how to operate that machinery safe - - - safely, properly, without damage to
themselves or our equipment.” In reference to claimant, “I gave him training as soon as he was
hired on how to use the table saw . . . [a]nd how to use a push stick.” Cormicle concluded that,
based upon his knowledge of the accident, claimant’s actions on the day of the injury were
inconsistent with the training he received with regard to safety and the table saw. “The training I
gave to [claimant] was that you stand at the controls of the table. . . . You use a push stick. You
don’t reach over a blade . . . you’re not to reach around the blade.”
The deputy commissioner reasoned that claimant received his injury by “pushing the
board with his right hand without a push stick and moving his left hand over and down behind an
obviously turning saw blade.” The deputy commissioner concluded that such behavior barred
his claim by violation of a safety rule. In affirming the deputy, the full commission found the
evidence supported the conclusion that claimant “flagrantly” violated a known safety rule.
This appeal follows.
ANALYSIS
VIOLATION OF A KNOWN SAFETY RULE – FAILURE TO KEEP HANDS AWAY FROM SAW BLADE
Code § 65.2-306 provides in relevant part that “[n]o compensation shall be awarded to
the employee or his dependents for an injury or death caused by . . . [t]he 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.” Code § 65.2-306(A)(5). The statute also provides
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that “[t]he person or entity asserting any of the defenses in this section shall have the burden of
proof with respect thereto.” Code § 65.2-306(B). Thus, to successfully raise a defense of willful
misconduct under Code § 65.2-306(A)(5), the employer must establish “(1) that the safety rule
was reasonable, (2) that the rule was known to [the employee], (3) that the rule was for [the
employee’s] benefit, and (4) that [the 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).
Whether an employee “knowingly violated [a safety rule] is a mixed question of law and
fact” reviewable on appeal. Owens Brockway v. Easter, 20 Va. App. 268, 271-72, 456 S.E.2d
159, 161 (1995). “[F]actual findings of the commission are binding on appeal” if supported by
credible evidence. Spruill, 8 Va. App. at 332, 381 S.E.2d at 360. In determining on appeal
whether credible evidence supports the commission’s findings, this Court reviews the evidence
in the light most favorable to the prevailing party, the employer here, and does not retry the facts
or reweigh the preponderance of the evidence. Wagner Enters., Inc. v. Brooks, 12 Va. App. 890,
894, 407 S.E.2d 32, 35 (1991).
Here, the employer had the burden of proving that claimant willfully violated a known
safety rule. The evidence, viewed in the light most favorable to employer, supports the
commission’s finding that claimant intentionally did violate a known safety rule by placing his
left hand over a moving saw blade rotating between five thousand to fifty-eight hundred RPMs.
In its written opinion, a majority of the full commission concluded:
The [d]eputy [c]ommissioner considered and weighed the
conflicting evidence . . . and found that the claimant’s injury was
occasioned by the claimant’s deliberate movement of his left hand
over and down behind the turning saw blade, an action for which
he had been reprimanded in the past. We find that the record
adequately supports the [d]eputy [c]ommissioner’s finding that the
claimant’s injury was caused by his willful misconduct in violating
a known safety rule when he “intentionally drew his left hand over
the moving blade to steady the emerging wood, an activity
proscribed by the employer as ‘never acceptable,’ especially not on
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such a size board, which method of using the table saw flagrantly
violated a taught safety precaution and brought about the left hand
injuries.”1
The facts clearly prove that the requirement that a carpenter keep his hands away from
the saw blade is a known safety rule. Both Clay and Matthew Cormicle testified that they
instructed claimant on the proper use of the table saw, each specifically pointing out that a
person using the table saw must never place his hands over or near the blade. Claimant admitted
that he was instructed to keep his hands away from the blade because of the serious injury that
could result from contact with the blade. Although the facts were in dispute as to whether the
claimant understood the rules as taught to him in English, the commission believed the testimony
of the Cormicles and Greg Lough that claimant comprehended the instructions that were
communicated to claimant in English. “The credibility of the witnesses and the weight accorded
the evidence are matters solely for the fact finder who has the opportunity to see and hear that
evidence as it is presented.” Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d
730, 732 (1995).
The record also establishes that claimant willfully violated this known safety rule.
“Proof of negligence, even gross negligence, alone will not support the defense, for willful
misconduct ‘imports something more than a mere exercise of the will in doing the act. It imports
a wrongful intention.’” Buzzo v. Woolridge Trucking, Inc., 17 Va. App. 327, 332, 437 S.E.2d
205, 208 (1993) (quoting King v. Empire Collieries Co., 148 Va. 585, 590, 139 S.E. 478, 479
(1927)). “‘Negligence conveys the idea of heedlessness, inattention, inadvertence; willfulness
and wantonness convey the idea of purpose or design, actual or constructive.’” Infant C. v. Boy
1
We acknowledge that the commission’s statement that claimant had been reprimanded
in the past for placing his hand over the saw blade is incorrect. However, this error by the
commission does not undermine its finding that the employer met its burden of proving that
claimant violated a known safety rule on this occasion.
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Scouts of America, Inc., 239 Va. 572, 582, 391 S.E.2d 322, 327-28 (1990) (quoting Thomas v.
Snow, 162 Va. 654, 660, 174 S.E. 837, 839 (1934)). Willful describes “[a]n intention to do an
act that he knows, or ought to know, is wrongful, or forbidden by law. It involves the idea of
premeditation and determination to do the act, though known to be forbidden.” Easter, 20
Va. App. at 271, 456 S.E.2d at 161.
The question of whether an employee is guilty of willful misconduct is a factual issue.
Id. at 272, 456 S.E.2d at 161. We are bound by the commission’s findings of fact as long as
there was credible evidence presented such that a reasonable mind could conclude that the fact in
issue was proved. Westmoreland Coal Co. v. Campbell, 7 Va. App. 217, 222, 372 S.E.2d 411,
415 (1988). The commission found that claimant intentionally violated a safety rule, and we find
sufficient evidence before the commission to support this finding.
The placement of claimant’s hand is not in dispute. Claimant acknowledged that he
intentionally placed his hand over the spinning blade to hold down a piece of wood. He
demonstrated to the commission how he positioned his left hand over the blade while reaching
for the wood. He testified that he had cut four or five pieces of wood before receiving the injury
to his hand, indicating that this was not an isolated, inadvertent incident.
Matthew Cormicle concluded that claimant’s actions on the day of the injury were
inconsistent with his training regarding the table saw. Thus, the commission had ample evidence
before it that supports the conclusion that claimant intentionally, not inadvertently, placed his left
hand too close to the saw blade.
We find no error in the full commission invoking Code § 65.2-306 and denying claimant
benefits because credible evidence proved that claimant’s injury was caused by his willful
misconduct in violating a known safety rule.2
2
No one argues that the safety rule was unreasonable or that the rule was not for the
employee’s benefit.
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EMPLOYER NOTICE PURSUANT TO COMMISSION RULE 1.10
Appellant argues the commission erred in relying on claimant’s use of a table saw rather
than a jigsaw to cut a small piece of wood to bar his compensation benefits because employer’s
Rule 1.10 notice did not include such an alleged violation.
Rule 1.10 of the commission provides:
If the employer intends to rely upon a defense under
§ 65.2-306 of the Act, it shall give to the employee and file with
the Commission no less than 15 days prior to the hearing, a notice
of its intent to make such defense together with a statement of the
particular act relied upon as showing willful misconduct.
We agree that employer’s notice of willful misconduct did not include a charge of
improper use of the table saw by cutting a piece of wood too small for that particular saw.
However, the commission found that hand placement, not use of the wrong type of saw,
established the willful misconduct barring appellant benefits. Employer’s notice did include this
particular allegation of violation. In particular, employer’s notice states that in addition to safety
guard and push stick violations, claimant “did not keep his hands away from the saw blade while
cutting the board.” We therefore find no merit to this assignment of error.
REMAINING ASSIGNMENTS OF ERROR
Because we affirm the commission’s finding that claimant willfully violated a known
safety rule by placing his hand deliberately over the turning saw blade, we do not address
claimant’s additional arguments that claimant failed to use a push stick or that claimant failed to
properly use a safety guard while at the table saw. See Luginbyhl v. Commonwealth, 48
Va. App. 58, 64, 628 S.E.2d 74, 77 (2006) (en banc) (“[A]n appellate court decides cases ‘on the
best and narrowest ground available.’” (quoting Air Courier Conference v. Am. Postal Workers
Union, 498 U.S. 517, 531 (1991) (Stevens, J., concurring))).
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For the same reason, we need not consider the merits of claimant’s fifth assignment of
error which states that the commission erred in denying benefits because neither the push stick
rule nor the safety guard rule was strictly enforced.3
CONCLUSION
For the foregoing reasons, we find the commission did not err in denying claimant
benefits on the basis that claimant violated a known safety rule by placing his hand too close to
the moving saw blade. Accordingly, the commission is affirmed.
Affirmed.
3
We also note that on brief, claimant appears to have abandoned this assignment of error
as it relates to the push stick claim.
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