2.7 Defenses

• Library: Workers' Compensation Practice in Virginia (Virginia CLE) (2020 Ed.)

2.7 DEFENSES

2.701 Willful Misconduct.

A. In General. An accident is said to occur when the effect is not the natural and probable consequence of the means employed or the effect is not intended or designed. ³⁸⁶ An injury that is the natural and probable consequence of willful misconduct is not an accident and therefore is not compensable.

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In Brooks v. REMOD, Inc., ³⁸⁷ citing Riverside Mills v. Thaxton, ³⁸⁸ the Commission ruled that an employee's violation of a specific, direct, and unambiguous verbal instruction or direction of his supervisor, made for the employee's safety, even though he did not violate a posted and enforced safety rule, is willful misconduct and bars benefits.

Section 65.2-306 of the Virginia Code and all annotations thereunder should be reviewed for possible willful misconduct defenses. In the case of willful misconduct, specific notice concerning the willful misconduct alleged by the defense must be provided in writing at least 15 days before the hearing. ³⁸⁹ The notice of intent to assert this defense must also state "the particular act relied upon as showing willful misconduct." As a matter of caution, the notice should also be sent to the Clerk of the Commission in Richmond and, if appropriate, to the regional office of the Commission that will hear the case.

B. Violation of Safety Rules. Where violating a safety rule has caused the claimant's injuries, the claimant must show that the safety rule was enforced by the employer and that it was known by the claimant. The Court of Appeals has stated that, to prevail on a defense of willful misconduct, the employer had to establish (i) that the safety rule was reasonable; (ii) that the rule was known to the claimant; (iii) that the rule was for the claimant's benefit; and (iv) that the claimant intentionally undertook the forbidden act. ³⁹⁰ The rule need not be solely for the claimant's benefit, but must be at least in part for the claimant's benefit. ³⁹¹

In Watford v. Colonial Williamsburg Foundation, ³⁹² the Virginia Court of Appeals affirmed the full Commission's denial of benefits based on the claimant's failure to comply with a safety rule established by his employer.

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The claimant was operating a lawn mower when an object flew up and injured his eye. Although his employer had issued safety goggles to its employees who were required to operate this machinery, the claimant admitted that he had chosen not to wear them. The Commission and the court found that the claimant was not entitled to benefits because he knowingly violated an established safety rule.

In Spruill v. C.W. Wright Construction Co., ³⁹³ Spruill was employed as a lineman by C.W. Wright Construction Company. He was working from a bucket above the ground and was not wearing rubber gloves when he came in contact with a live wire. The employer had issued a safety manual to each of its employees describing the use of safety equipment when in the proximity of energized lines. The employer testified that the safety rule was strictly enforced. That safety rule, however, did permit employees to work with their bare hands in the case of de-energized lines.

Because several employees testified that it was accepted practice to work on de-energized lines without the protection of rubber gloves, and because the claimant's unrebutted testimony indicated that he was under the impression that the electrical line was dead, the Virginia Court of Appeals concluded that "negligence, regardless of how gross, will not bar recovery of workers' compensation benefits" and that "Spruill's belief [that the line was dead] rendered the rule inapplicable." ³⁹⁴

In Phipps v. Rann Industries, ³⁹⁵ the Virginia Court of Appeals reversed the full Commission's denial of benefits. The claimant was employed as a utility person. In this capacity, he carried boxes and clothing between the employer's showroom and warehouse, which were located in separate buildings. The ramp to the rear door of the showroom was painted with highgloss paint two days before the claimant's accident. This paint became slick when it rained. After the ramp was painted, another employee fell on it and sustained a back injury. The employer's supervisor advised the employees not to use the ramp until it was either dry or repaired. The supervisor even requested that the claimant make a caution sign warning of the ramp's condition.

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The claimant slipped and fell on the ramp the next day while moving boxes to the warehouse and injured his back. ³⁹⁶

The deputy commissioner and the full Commission denied benefits based upon the claimant's injury resulting from his misconduct in violating a safety rule. The court reversed this decision, finding that the employer's supervisor only warned the employee not to use the ramp when it was wet. The court noted the employer's failure to place a barrier in front of the ramp to prevent its use. The court concluded that the evidence failed to establish either that a safety rule prohibited the claimant from using the exit where the ramp was located or the existence of any wrongful intention on the part of the claimant. ³⁹⁷

In Mouhssine v. Crystal City Laundry, ³⁹⁸ the claimant injured his back while moving dirty towels at work from the carts to the washing machines. The employer asserted a willful misconduct defense, arguing that claimant violated the well-established rule that employees must wear a back brace while moving laundry. Claimant had signed off on the back brace policy, was reminded "several times a month" at group meetings to wear a brace, and was even directly instructed to wear the brace on four to six occasions. However, he was never given a written warning or threatened with termination for his repeated failure to wear the brace.

In upholding the Commission's denial of benefits, the Virginia Court of Appeals stated that "enforcement" of a safety rule is a different concept than "punishment." Even though claimant was never punished for his failure to wear the back brace, the rule was still enforced because the employer consistently corrected employees and never allowed the rule to fall into disuse. The court stated "the purpose of the enforcement of workplace safety rules analysis is to consider the employer's efforts to achieve its employees' compliance with the workplace safety rule—not necessarily to focus on any specific punishment given to a particular employee who has failed to comply." ³⁹⁹

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As demonstrated in Mouhssine, whether the employer enforced the safety rule is a critical part of a willful misconduct defense. While not a statutory element of willful misconduct, the claimant "may rebut the [willful misconduct] defense by showing that the rule was not kept alive by bona fide enforcement . . . ." ⁴⁰⁰ In Callahan v. Rappahannock Goodwill, ⁴⁰¹ the Virginia Court of Appeals took up the question of whether the Commission could find that a safety rule had been enforced in the absence of any actual examples of enforcement by discipline or punishment. In this case, the claimant was injured when a truck that he was unloading began to roll away from him, causing the claimant and the contents of the truck to fall out of the back of the truck. Company rules required that the claimant engage the emergency brake and put wheel chocks under the truck's tires to prevent the truck from rolling, but the claimant failed to do so, which allowed the truck to roll away...