Legal Summaries Contents Home Page Contents
See Intoxication, Compensable Consequences
Code Sec. 65.2-306 (A)(1) provides as follows: "No compensation shall be awarded to the employee . . . for an injury . . . caused by: 1. The employee's willful misconduct or intentional self-inflicted injury . . . ."
"To successfully raise the defense of willful misconduct, the employer must establish '(1) that the safety rule [or other duty] 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.'" Buzzo v. Woolridge Trucking, Inc., 17 Va. App. 327, 332, 437 S.E.2d 205, 208 (1993) (quoting Spruill v. C.W. Wright Constr. Co., 8 Va. App. 330, 334, 381 S.E.2d 359, 360-61 (1989)). Willful misconduct requires something more than negligence. King v. Empire Collieries Co., 148 Va. 585, 590, 139 S.E. 478, 479 (1927). "It imports a wrongful intention." Id. The employer need not prove that the employee broke the rule purposefully. It is sufficient to show that, knowing the safety rule, the employee intentionally performed the forbidden act." Riverside & Dan River Cotton Mills, Inc. v. Thaxton, 161 Va. 836, 872, 172 S.E. 261, 264 (1934). The employer must also show that the safety rule was enforced. See VEPCO v. Kremposky, 227 Va. 265, 315 S.E.2d 231(1984).
Procedure. If an employer intends to rely on a defense of willful misconduct or other defense under Sec. 65.2-306, it must give notice to the claimant and file with the Commission no less than 15 days before the hearing, a notice of its intent to make this defense together with a statement of the particular act relied upon as showing willful misconduct. Rule 1.10, Rules of the Virginia Workers' Compensation Commission.
"'Willful' . . . imports something more than a mere exercise of the will in doing the act. It imports a wrongful intention. An intention to do an act that he knows, or ought to know, is wrongful, or forbidden by law. . . . There cannot, however, be a willful failure to perform an unknown duty." Brockway v. Easter, 20 Va. App. 268, 271, 456 S.E.2d 159, 161 (1995) (quoting King v. Empire Collieries Co., 148 Va. 585, 590-91, 139 S.E. 478, 479 (1927)); Buzzo v. Woolridge Trucking, Inc., 17 Va. App. 237, 437 S.E.2d 205 (1993).
Code Sec. 65.2-306 (A) (4) provides as follows: "No compensation shall be awarded to the employee . . . for an injury . . . caused by: . . . 4. The employee's willful failure or refusal to use a safety appliance or perform a duty required by statute . . . ." "Whether an employee is guilty of willful misconduct is a question of fact to be resolved by the commission and the commission's finding is binding on appeal if supported by credible evidence." Adams ex rel. Boysaw v. Hercules, Inc., 21 Va. App. 458, 463, 465 S.E.2d 135, 137 (1995).
Code Sec. 65.2-306 (A)(5) provides as follows: "No compensation shall be awarded to the employee . . . for an 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 establish a willful violation of a safety rule, employer was required to 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, [are] mixed question[s] of law and fact to be decided by the commission and reviewable by the 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, 459 S.E.2d at 161. The evidence must also show the employer's enforcement of the rule, Buzzo v. Woolridge Trucking, Inc., 17 Va. App. 237, 437 S.E.2d 205 (1993), and that the violation of the rule or intoxication caused claimant's injuries. American Safety Razor Co. v. Hunter, 2 Va. App. 258, 343 S.E.2d 461 (1986).
An employee's failure to have his seat belt fastened at the time of the accident in violation of Sec. 46.2-1094 was, at most, negligence. No evidence proved that he intentionally failed to fasten his seat belt. Negligence does not bar workers' compensation benefits. Uninsured Employer's Fund v. Keppel, 1 Va. App. 162, 165, 335 S.E.2d 851,852 (1985). Dale Old, T/A Dale Old Wrecker Service v. Darryll F. Huckaby, Record No. 2013-94-1 (July 5, 1995). Where the procedures for operating the employer's equipment were not true rules, but rather were only standard operational procedures, the failure to observe such operating procedures, even though reasonable and intended to protect and benefit the employee, is only negligence, and even the gross negligence of an employee does not insulate an employer from liability for a work injury. Where claimant's actions were not intentional and willful, but were of a spontaneous, negligent nature, the was no willful misconduct. Uninsured Employers' Fund v. Curtis Mason, Record No. 2355-95-4 (April 9, 1996).
Proof of gross negligence will not alone establish a willful misconduct defense. Buzzo v. Woolridge Trucking, Inc., 17 Va. App. 237, 437 S.E.2d 205 (1993).
An employee may rebut an employer's willful misconduct defense with evidence of an employer's pattern or practice of failing to discipline employees guilty of willful violations of a safety rule, "but only when such violations occur 'under circumstances charging an employer with knowledge and acquiescence.'" Virginia Elec. and Power Co. v. Kremposky, 227 Va. 265, 270-71, 315 S.E.2d 231, 234 (1984).
A separate theory of defense in some civil cases is the illegality defense. The illegality defense is based on the principle that a party who consents to and participates in an illegal act may not recover from other participants for the consequences of that act. Miller v. Bennett, 190 Va. 162, 164-65, 56 S.E.2d 217, 218 (1949). In Miller v. Bennett, 190 Va. 162, 56 S.E.2d 217(1949), the court held that the estate of a woman, who died after participating in an illegal abortion, could not recover damages for wrongful death from the person who performed the abortion procedure. This holding was based on the fact that the direct cause of the decedent's death was the illegal conduct in which she consensually participated. The illegality defense will be applied to bar recovery if the evidence shows that the plaintiff freely and voluntarily consented to participation in the illegal act, without duress or coercion. Trotter v. Okawa, 248 Va. 212, 216, 445 S.E.2d 121, 123-24 (1994). As with other defenses, the party raising the illegality defense has the burden to establish it. A determination of whether a person has engaged in an illegal act, for purposes of the illegality defense, is an objective inquiry. See Zysk v. Zysk, 239 Va. 32, 35, 404 S.E.2d 721, 722 (1990). In Zysk v. Zysk, 239 Va. 32, 404 S.E.2d 721 (1990), the court held that a woman who had contracted a sexually transmitted disease during premarital sex could not recover damages from her partner. The act of sexual intercourse was both consensual and illegal. The court explained that "courts will not assist the participant in an illegal act who seeks to profit from the act's commission." Id. at 34, 404 S.E.2d at 722. See also, Eagle, Star and British Dominions Ins. Co. v. Heller, 149 Va. 82, 140 S.E. 314 (1927), in which the court held that a convicted arsonist could not recover under an insurance policy for damages to a building that he had burned. Id. at 105-06, 140 S.E. at 321.
Suicide. Despite the provisions of Code Sec. 65.2-306(A)(1) providing in pertinent part that "[n]o compensation shall be awarded to the employee or his dependents for an injury or death caused by: (1) The employee's willful misconduct or intentional self-inflicted injury," the commission has awarded benefits for suicide caused by the compensable accident. See, e.g., Confer v. Arban & Carosi, Inc., 63 O.I.C. 66 (1984) (a case in which the issues were whether decedent's suicide was statutorily barred and whether the suicide was caused by decedent's initial injury.) In Confer, the commission adopted the majority rule: [T]he appropriate test to be adopted in Virginia is that designated as the chain-of-causation rule, wherein where the injury and its consequences directly result in the worker's loss of normal judgment and domination by a disturbance of the mind causing the suicide, his suicide is compensable, with a suicide committed by the worker suffering from this degree of disturbance not to be considered "willful" or an "intentional" injury even though the action is volitional since the suicide relates back to the original injury rather than existing independently of the injury. Id. at 80. Additionally, the commission explained as follows: [W]e agree with the basic tenet behind those cases adhering to the chain of causation, that recent psychiatric advances point to the fact that the consequences of an accidental injury can be so devastating that they influence the employee's mind to the point that the employee understands the consequences of the act of destruction but the employee is unable to resist the impulse to take his own life. Under such circumstances we do not find that the act is independent of the accident nor that it is willful within the meaning of [the statute]." Id. at 80-81.
Code Sec. 65.2-306 provides, in relevant part: A. No compensation shall be awarded . . .for an 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;... B. The person or entity asserting any of the defenses in this section shall have the burden of proof with respect thereto." As specified in Code Sec. 65.2-306(B), employer ha[s] the burden to prove that claimant's conduct, which caused his injury, was in 'willful' disregard of a reasonable rule established by employer . . . ." Brockway v. Easter, 20 Va. App. 268, 271, 456 S.E.2d 159, 161 (1995) (emphasis added). the commission properly found that claimant willfully violated employer's safety rule in not wearing a seat belt, but, nevertheless, allowed recovery because employer failed to prove that the violation caused claimant's injury. As the commission noted, "seat belts are designed to lessen or avoid injuries that occur during the operation of a motor vehicle." Claimant's injuries arose from a deliberate attack on his person which occurred "after [he] was out of the truck's cab," circumstances totally unrelated to those safety considerations which underpinned employer's seat belt rule. Smithfield Packing Company, Inc. v. U. W. Carlton, Record No. 0402-98-1 (February 23, 1999).
Claimant died from exposure to ether in a containment dike. A sign at the top of the steps leading to the area where claimant died stated, "Danger," and warned that a permit was required for entry. The Court of Appeals rejected claimant's argument that claimant's violation of a safety rule should be considered mere negligence so as to permit an award of benefits. In Mills v. Virginia Electric & Power Co., 197 Va. 547, 90 S.E.2d 124 (1955), the Supreme Court upheld the commission's finding that a lineman for VEPCO was guilty of willful misconduct when he disregarded a company rule requiring that he wear rubber gloves when working on an energized line. The Supreme Court said in Mills: If an employee with years of experience. . . is to be allowed to recover compensation on account of an injury due directly to his disregard of an absolutely fundamental measure of safety, which he admits he well knew, then there would be no case in which the provisions of Section 14 [now Sec. 65.2-306(A)(1)] of the act would apply. Id. at 552, 90 S.E.2d at 127 (quoting Tate v. Blackwood Coal & Coke Co., 11 O.I.C. 38, 41 (1929)). Although the lineman in Mills was working in furtherance of his employer's business interest, his failure to comply with the safety rule was held to be misconduct. Thus, the Court of Appeals consider whether in this case the evidence is sufficient to support the commission's finding of willful misconduct. To prevail on a claim for death benefits, a claimant must prove a causal relationship between an industrial accident and the employee's death. Lilly v. Shenandoah's Pride Dairy, 218 Va. 481, 483, 237 S.E.2d 786, 787 (1977). The employer conceded that claimant's death arose out of and during the course of her employment. However, employer raised the affirmative defense of willful misconduct. To prevail on the defense of willful misconduct, the employer must prove that (1) the safety rule was reasonable, (2) the employee knew about the rule, (3) the rule was intended for the employee's benefit, and (4) 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). The claimant concedes that the evidence supports the first three factors, but contends that credible evidence does not support the finding that claimant's decedent intentionally undertook the forbidden act. Whether an employee is guilty of willful misconduct is a question of fact to be resolved by the commission and the commission's finding is binding on appeal if supported by credible evidence. Watford v. Colonial Williamsburg Found., 13 Va. App. 501, 505, 413 S.E.2d 69, 72 (1992). In determining on appeal whether credible evidence supports the commission's findings, the Court of Appeals reviews the evidence in the light most favorable to the prevailing party 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).In this case the evidence was sufficient to prove that an ether spill had occurred at the tank and that someone had attempted to clean up the spill. Credible evidence, therefore, supported the commission's finding that claimant "intentionally undertook the forbidden act" of entering the dike without a confined space permit. Accordingly, absent proof by the claimant of an applicable exception to the safety rule requiring that an employee obtain an entry permit, or a valid reason for the employee's failure to obtain the permit, the commission did not err by denying the claim on the ground that Boysaw engaged in willful misconduct. A claimant may rebut the employer's willful misconduct defense "by showing that the rule was not kept alive by bona fide enforcement or that there was a valid reason for his inability to obey the rule." Buzzo v. Woolridge Trucking, Inc., 17 Va. App. 327, 332, 437 S.E.2d 205, 208 (1993). Testimony established that the employer "strictly enforced" the rule requiring a permit to enter a confined space. Thus, unless the evidence showed that claimant had a valid reason for failing to obey the permit rule, the willful misconduct defense applies. In Spruill, the court held that credible evidence did not support the commission's finding of willful misconduct because, although the employer's rule required employees to wear gloves when working on live power lines, "it was an accepted practice to work on deenergized lines without the protection of rubber gloves." Spruill, 8 Va. App. at 334, 381 S.E.2d at 361. The court held that the rule was inapplicable because the claimant knew about the unwritten exception to the rule and believed the line he was working on was deenergized. Id. In this case, the evidence does not provide a valid reason for claimant's failure to obtain a permit before entering the dike. Sally Inez Adams, on behalf of her niece, Jamill C. Boysaw v. Hercules, Inc., Record No. 0260-94-3 (December 29, 1995).
Claimant was injured when he jumped from a moving truck he was driving while in the course of his employment. Claimant stated that he had no steering and the brakes would not operate. As a result, claimant stated that the truck's speed increased and he became scared because he could not steer the truck around an upcoming curve. Consequently, he he made a "split second decision" to jump from the truck out of the passenger door. The back wheels of the truck ran over claimant, causing him to sustain severe injuries. Although claimant's account contains aspects which are not reasonable or plausible, this did not require the commission to reject the basic account of the accident which is supported by the evidence. The commission did not err, as a matter of law, by crediting claimant's account that he jumped from the truck while it was moving, regardless of the reason. The commission was entitled to weigh all of the evidence and to infer that the accident more than likely occurred because claimant shifted the truck out of gear on the hill (at most mere negligence and not willful misconduct) or it popped out of gear, causing him to lose control of the truck. R.S.Jones and Associates v. Timmy D. Dean, Record No. 2863-98-2 (June 29,1999). WP Version.
Legal Summaries Contents Home Page Contents