safety rule in Virginia

2020Code § 65.2-306(A) provides that an employee is not entitled to workers’ compensation benefits for an injury “caused by” the employee’s “willful breach of any reasonable rule . . . adopted by the employer and brought, prior to the accident, to the knowledge of the employee[.]” 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. -3- Gwaltney of Smithfield,

2018See Owens Brockway, 20 Va. App. at 271 , 456 S.E.2d at 161 (noting only that the safety rule be “promulgated for the benefit of the employee”); Fairfax Cty.

2022“Whether the evidence was sufficient to demonstrate that the safety rule was not strictly enforced is a mixed question of law and fact[.]” Id. (citing Virginia Electric & Power Co. v. Kremposky, 227 Va. 265, 270 (1984)).

2022“Proof of a pattern or practice of failing to discipline employees guilty of willful violations of a safety rule defeats the defense afforded an employer by Code § 65.1-38, but only when such violations occur ‘under circumstances charging the employer with knowledge and acquiescence.’” Kremposky, 227 Va. at 270 -71 (quoting Jenkins, 207 Va. at 404 ).

2022“Whether the evidence was sufficient to demonstrate that the safety rule was not strictly enforced is a mixed question of law and fact[.]” Id. (citing Virginia Electric & Power Co. v. Kremposky, 227 Va. 265, 270 (1984)).

2020Relevant here, Code § 65.2-306(A)(4) provides, in pertinent part, that no compensation shall be awarded to an employee for an injury caused by “[t]he employee’s willful failure or refusal to . . . perform a duty required by statute.” To prevail when asserting a defense of willful misconduct under Code § 65.2-306(A), the employer must prove that: (1) “the safety rule [or other duty] was reasonable”; (2) the rule or duty “was known to [the employee]”; (3) the rule or duty “was for [the employee’s] benefit”; and (4) the employee “intentionally undertook the forbidden act.” Buzzo v. Woolridge Truc

2022“Proof of a pattern or practice of failing to discipline employees guilty of willful violations of a safety rule defeats the defense afforded an employer by Code § 65.1-38, but only when such violations occur ‘under circumstances charging the employer with knowledge and acquiescence.’” Kremposky, 227 Va. at 270 -71 (quoting Jenkins, 207 Va. at 404 ).

2019Id. at 73 (emphasis omitted) (quoting Peanut City Iron & Metal Co. v. Jenkins, 207 Va. 399, 404 (1966)). -5- Here, the claimant challenges only the Commission’s conclusions that his breach of the safety rule was the proximate cause of his injury and that the employer enforced the rule at issue.4 A. Proximate Cause of the Injury Whether the breach of a safety rule proximately caused the injury is a question of fact on which we defer to the Commission.

2022An employer is charged with knowledge and acquiescence when “someone in a supervisory capacity representing the employer was aware that the safety rule was being violated.” Mouhssine, 62 Va. App. at 81 ; see also Hagins, 32 Va. App. at 394 (agreeing with the Commission that “someone in a supervisory capacity representing the employer was aware that the safety rule was being violated” where Hagins’s crew leader “was responsible for her training” and “was also responsible for enforcing the safety rules”). -9- There was testimony that Leake – the Truteam production manager who is in charge of num

2020Code § 65.2-306(A) provides that an employee is not entitled to workers’ compensation benefits for an injury “caused by” the employee’s “willful breach of any reasonable rule . . . adopted by the employer and brought, prior to the accident, to the knowledge of the employee[.]” 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. -3- Gwaltney of Smithfield,

2005Id. -5- Whether the safety 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.

1995"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 , - 3 - 872, 172 S.E. 261, 264 (1934).

2024Layne, 64 Va. App. at 349 -50 (quoting Owens Brockway v. Easter, 20 Va. App. 268, 271 (1995)).

2019He also points to the fact that another area of the facility separate from where his injury occurred, which also contained dangerous 4 The other elements of the defense of willful breach are not before us on appeal: whether the rule was reasonable, whether the claimant knew the rule, whether it was for his benefit, and whether the claimant intentionally “undertook the forbidden act.” See Layne, 64 Va. App. at 349-50 . -6- machinery, was not surrounded by a fence and, consequently, the safety rule would not have prevented the accident in the other location.5 We disagree with the claimant’s argu

2022An employer is charged with knowledge and acquiescence when “someone in a supervisory capacity representing the employer was aware that the safety rule was being violated.” Mouhssine, 62 Va. App. at 81 ; see also Hagins, 32 Va. App. at 394 (agreeing with the Commission that “someone in a supervisory capacity representing the employer was aware that the safety rule was being violated” where Hagins’s crew leader “was responsible for her training” and “was also responsible for enforcing the safety rules”). -9- There was testimony that Leake – the Truteam production manager who is in charge of num

2019Id. at 73 (emphasis omitted) (quoting Peanut City Iron & Metal Co. v. Jenkins, 207 Va. 399, 404 (1966)). -5- Here, the claimant challenges only the Commission’s conclusions that his breach of the safety rule was the proximate cause of his injury and that the employer enforced the rule at issue.4 A. Proximate Cause of the Injury Whether the breach of a safety rule proximately caused the injury is a question of fact on which we defer to the Commission.

1992In Mills v. Virginia Electric & Power Co., 197 Va. 547 , 90 S.E.2d 124 (1955), the Supreme Court said: If the safety rule is reasonable and is known to the employee and for his benefit, and yet he intentionally does the forbidden act, then he is guilty of willful misconduct within the meaning of [§ 65.1-38(4)].

1992In Mills v. Virginia Electric & Power Co., 197 Va. 547 , 90 S.E.2d 124 (1955), the Supreme Court said: If the safety rule is reasonable and is known to the employee and for his benefit, and yet he intentionally does the forbidden act, then he is guilty of willful misconduct within the meaning of [§ 65.1-38(4)].

2003The employer is not required "to prove that the employee purposefully determined to violate the [safety] rule, only that, 'knowing the safety rule, the employee intentionally performed the forbidden act.'" Buzzo, 17 Va. App. at 332 , 437 S.E.2d at 208 -09 (quoting Spruill, 8 Va. App. at 334 , 381 S.E.2d at 361 ).

2003The employer is not required "to prove that the employee purposefully determined to violate the [safety] rule, only that, 'knowing the safety rule, the employee intentionally performed the forbidden act.'" Buzzo, 17 Va. App. at 332 , 437 S.E.2d at 208 -09 (quoting Spruill, 8 Va. App. at 334 , 381 S.E.2d at 361 ).

2018See Alevromagiros v. Hechinger Co. , 993 F.2d 417 , 420 (4th Cir. 1993).

2013Furthermore, “ ‘[ajbsent an established norm in the industry,’ a Court is constrained to rely on the opinion testimony of experts to ascertain the applicable safety standard.” Id. at 421 (citing Ford Motor Co. v. Bartholomew, 224 Va. 421, 430 , 297 S.E.2d 675 (1982)).

1993It imports a wrongful intention.” Uninsured Employer’s Fund v. Keppel, 1 Va. App. 162, 164 , 335 S.E.2d 851, 852 (1985) (quoting King v. Empire Collieries Co., 148 Va. 585, 590 , 139 S.E. 478, 479 (1927)). 1 It is not necessary for the employer to prove that the employee purposefully determined to violate the rule, only that, “knowing the safety rule, the employee intentionally performed the forbidden act.” Spruill, 8 Va. App. at 334 , 381 S.E.2d at 361 . “[W]hether an employee was guilty of willful misconduct is a question of fact.” Id. at 333 , 381 S.E.2d at 360 .

1993It imports a wrongful intention.” Uninsured Employer’s Fund v. Keppel, 1 Va. App. 162, 164 , 335 S.E.2d 851, 852 (1985) (quoting King v. Empire Collieries Co., 148 Va. 585, 590 , 139 S.E. 478, 479 (1927)). 1 It is not necessary for the employer to prove that the employee purposefully determined to violate the rule, only that, “knowing the safety rule, the employee intentionally performed the forbidden act.” Spruill, 8 Va. App. at 334 , 381 S.E.2d at 361 . “[W]hether an employee was guilty of willful misconduct is a question of fact.” Id. at 333 , 381 S.E.2d at 360 .

1997"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.

1997"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.

2023“To establish this defense, the employer must prove: (1) the rule was reasonable; (2) the employee knew of the rule; (3) the rule was for the employee’s benefit; and (4) the employee intentionally performed the forbidden act.” Dan River, Inc. v. Giggets, 34 Va. App. 297, 302 (2001); see also Layne v. Crist Elec.

2023Co. of N. Am. v. Craft, 63 Va. App. 502, 520 (2014) (internal quotation marks omitted) (quoting Amelia Sand Co. v. Ellyson, 43 Va. App. 406, 408 (2004)). -9- A. Violation of a safety rule Appellants argue the Commission erred when it found that claimant did not violate a safety rule.4 Code § 65.2-306(A)(5) states that no compensation shall be awarded to the employee for an injury caused by 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.” The person or entity asserting this defense

2023Co. of N. Am. v. Craft, 63 Va. App. 502, 520 (2014) (internal quotation marks omitted) (quoting Amelia Sand Co. v. Ellyson, 43 Va. App. 406, 408 (2004)). -9- A. Violation of a safety rule Appellants argue the Commission erred when it found that claimant did not violate a safety rule.4 Code § 65.2-306(A)(5) states that no compensation shall be awarded to the employee for an injury caused by 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.” The person or entity asserting this defense

2019See Southland Corp. v. Gray, 18 Va. App. 366, 367-68 (1994) (affirming the Commission’s award of benefits for injuries sustained during an early evening robbery, based in part on evidence of the employer’s safety rule prohibiting employees from taking deposits to the bank after 3:00 p.m. without special permission).

2019See Southland Corp. v. Gray, 18 Va. App. 366, 367-68 (1994) (affirming the Commission’s award of benefits for injuries sustained during an early evening robbery, based in part on evidence of the employer’s safety rule prohibiting employees from taking deposits to the bank after 3:00 p.m. without special permission).

2015For example, in Peanut City Iron & Metal Co. v. Jenkins, 207 Va. 399, 400 , 150 S.E.2d 120, 121 (1966), the Supreme Court stated, “There was an oral work rule of the company that before an automobile was dismantled with a blow torch air holes were to be made in its gas tank by *352 means of an axe or pick.” Likewise, in Phipps v. Rann Industries, Inc., 16 Va.App. 394, 396 , 429 S.E.2d 886, 887 (1993), this Court observed, “Hairfield’s verbal instructions to the employees is Rann’s basis for asserting the existence of the safety rule and the limits of the safety rule.” Thus, because claimant ha

2015For example, in Peanut City Iron & Metal Co. v. Jenkins, 207 Va. 399, 400 , 150 S.E.2d 120, 121 (1966), the Supreme Court stated, “There was an oral work rule of the company that before an automobile was dismantled with a blow torch air holes were to be made in its gas tank by *352 means of an axe or pick.” Likewise, in Phipps v. Rann Industries, Inc., 16 Va.App. 394, 396 , 429 S.E.2d 886, 887 (1993), this Court observed, “Hairfield’s verbal instructions to the employees is Rann’s basis for asserting the existence of the safety rule and the limits of the safety rule.” Thus, because claimant ha

2012See, e.g., United Airlines v. Hayes, 58 Va. App. 220, 238 , 708 S.E.2d 418, 427 (2011) (“In determining the credibility of any witness, the fact finder may accept the parts of a witness’ testimony it finds believable and reject other parts as implausible.”).

2012See, e.g., United Airlines v. Hayes, 58 Va. App. 220, 238 , 708 S.E.2d 418, 427 (2011) (“In determining the credibility of any witness, the fact finder may accept the parts of a witness’ testimony it finds believable and reject other parts as implausible.”).

2002Brockaway v. Easter, 20 Va. App. 268, 271-72 , 456 S.E.2d 159, 161 (1995). "[S]ubsidiary factual questions are entitled to a presumption of correctness." Commonwealth v. Peterson, 15 Va. App. 486, 487 , 424 S.E.2d 722, 723 (1992) (citation omitted).

2002Brockaway v. Easter, 20 Va. App. 268, 271-72 , 456 S.E.2d 159, 161 (1995). "[S]ubsidiary factual questions are entitled to a presumption of correctness." Commonwealth v. Peterson, 15 Va. App. 486, 487 , 424 S.E.2d 722, 723 (1992) (citation omitted).

2000While we agree that employer liability based on worksite safety violations is not absolute, see Pike v. Dept. of Labor and Industry, 222 Va. 317, 322-23 , 281 S.E.2d 804, 807 (1981), the burden of proof in establishing employee misconduct as a limitation on employer 3 Under Virginia law, the Commissioner is the counterpart of the Secretary of Labor. 4 In Ocean Electric, the specific element that the Secretary of Labor failed to prove was the "adequacy of the employer's safety policy." In Ocean Electric, as in Willson, the violation was created by an employee/supervisor's failure to adhere to a

2000While we agree that employer liability based on worksite safety violations is not absolute, see Pike v. Dept. of Labor and Industry, 222 Va. 317, 322-23 , 281 S.E.2d 804, 807 (1981), the burden of proof in establishing employee misconduct as a limitation on employer 3 Under Virginia law, the Commissioner is the counterpart of the Secretary of Labor. 4 In Ocean Electric, the specific element that the Secretary of Labor failed to prove was the "adequacy of the employer's safety policy." In Ocean Electric, as in Willson, the violation was created by an employee/supervisor's failure to adhere to a

1999Fashauer, 57 F.3d at 1280; see Kendrick v. Illinois Cent.

1993It imports a wrongful intention.” Uninsured Employer’s Fund v. Keppel, 1 Va. App. 162, 164 , 335 S.E.2d 851, 852 (1985) (quoting King v. Empire Collieries Co., 148 Va. 585, 590 , 139 S.E. 478, 479 (1927)). 1 It is not necessary for the employer to prove that the employee purposefully determined to violate the rule, only that, “knowing the safety rule, the employee intentionally performed the forbidden act.” Spruill, 8 Va. App. at 334 , 381 S.E.2d at 361 . “[W]hether an employee was guilty of willful misconduct is a question of fact.” Id. at 333 , 381 S.E.2d at 360 .

1993It imports a wrongful intention.” Uninsured Employer’s Fund v. Keppel, 1 Va. App. 162, 164 , 335 S.E.2d 851, 852 (1985) (quoting King v. Empire Collieries Co., 148 Va. 585, 590 , 139 S.E. 478, 479 (1927)). 1 It is not necessary for the employer to prove that the employee purposefully determined to violate the rule, only that, “knowing the safety rule, the employee intentionally performed the forbidden act.” Spruill, 8 Va. App. at 334 , 381 S.E.2d at 361 . “[W]hether an employee was guilty of willful misconduct is a question of fact.” Id. at 333 , 381 S.E.2d at 360 .

1987At the hearing, Mr. Letellier testified that he interpreted § 1926.300(b)(2) to require the issuance of a citation "if an accident was possible—one in a million." The Court finds that such an interpretation would give unbridled discretion to compliance inspectors implicating due process requirements, and would be no more than a "possibility" standard which "would permit this safety standard to be applied to conditions posing insignificant risks that are beyond the scope of the [OSHA] Act." Pratt and Whitney Aircraft v. Secretary of Labor, 649 F.2d 96, 104 (2d Cir. 1981).