                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia


MARION LEE WALLACE, JR.
                                            MEMORANDUM OPINION* BY
v.   Record No. 2596-00-1                JUDGE JERE M. H. WILLIS, JR.
                                                 JUNE 5, 2001
PRODUCTION SUPPORT SERVICES AND
 GREAT AMERICAN INSURANCE COMPANY


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Thomas W. Carpenter (Thomas W. Carpenter,
          P.C., on brief), for appellant.

          Daniel E. Lynch (John T. Cornett, Jr.;
          Williams & Lynch, on brief), for appellees.


     On appeal from a decision of the Workers' Compensation

Commission, Marion Lee Wallace, Jr. contends that the commission

erred in holding that his claim for benefits was barred by his

willful violation of a safety rule.     Finding no error, we affirm

the decision of the commission.

                            I.   BACKGROUND

     On appeal, we view the evidence in the light most favorable

to the party prevailing below.     See R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

     So viewed, the evidence established that on October 9,

1998, Wallace was employed as a forklift warehouse worker with

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Production Support Services (PSS), which had assigned him to

work at Canon of Virginia's Newport News plant.   On that day,

Wallace and a co-worker, Patrick Wade, were hanging a safety

banner on a fence in the plant.   Wallace and Wade tried to

obtain a lift cage, but the cage was being used elsewhere in the

plant.   They put a wooden pallet on a forklift and used it as an

elevator so that Wallace could stand on it and be lifted to

secure the banner.

     Wallace was lifted approximately "[f]ifteen or twenty feet"

and tied one end of the banner.   He hung on the fence for thirty

to forty seconds while Wade cleared a space, and then he stepped

back onto the pallet and secured the other side of the banner.

Upon coming down, he observed that the banner was crooked.      He

went up again.   The pallet "busted . . . .   It just split."

Wallace fell, injuring his head, shoulder and knee.

     Wallace admitted that he was experienced with forklifts.

He had previously worked for another company as a safety

supervisor and forklift operator.   He further admitted that when

he began working for PSS, he was shown a forklift safety video

and was given a test on forklift operation.   He received a

forklift safety certificate on January 23, 1998, reflecting that

he scored 100% on the test.   He recalled the video saying that

one should not be raised up on the forks of a forklift, but he

contended that it said nothing about a person's being raised on

a pallet.   He recalled nothing about using a cage lift.

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     Wallace testified that he saw no danger in being raised on

a pallet.   He noted that the wooden pallets held industrial

items weighing anywhere from 200 pounds to two tons.   He weighed

only 165 pounds.   He denied that being elevated on a pallet was

a violation of PSS or Canon's safety rules.   He acknowledged

that neither Richard Hamlin nor Dan Tucker told him to proceed

that way.

     Booker T. Young, PSS's general manager, testified that

Wallace was shown a forklift video, which was approved by OSHA

and Canon of Virginia, after which he took a test.   He confirmed

that the safety video forbade lifting personnel on the forks of

a forklift.   He admitted that it did not specifically mention

the use of a pallet, but said that it emphasized the necessity

of using a cage.

     Young further testified that personnel were to be lifted by

a forklift only while they were within a safety cage and that

this rule was strictly enforced, both by PSS's on-site

supervisor and by the supervisor for the company where the

person was assigned, in this case Hamlin.   He stated that this

rule was in place for the workers' "individual safety" and that

other employees had been terminated for forklift violations

because there are "no second chances regarding safety while

operating the forklift."

     Richard Hamlin, group leader for the receiving area at the

time of the accident, testified that on October 9, 1998, as he

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does every morning, he held a meeting with his group.       At this

meeting, he informed the group of "ten to twelve" things that

had to be done that day.    He testified that hanging the safety

banner was one of those things.    He said that he did not assign

this task specifically to Wallace, but that Wallace took it upon

himself.

     Hamlin further testified that the proper procedure for

hanging the banner would have been for Wallace and Wade to

obtain either a manual crank lift or a safety cage to be used

with the forklift.    He stated that he did not see Wallace on the

pallet on the forklift.    He admitted that he saw Wallace

standing on a metal pipe holding onto the fence, and he told him

to "get down."   He stated that he first learned that Wallace had

used a pallet to hang the banner after the accident.        He

testified that in his twelve years, he knew of no instance where

there were not enough lifts or cages available for people who

needed to be lifted.    He said if the proper equipment were not

available, a worker should wait until it was.

     The deputy commissioner held that Wallace's accident and

injuries resulted from his willful violation of a safety rule

and denied his claim for benefits.       The full commission

affirmed.

             II.     WILLFUL VIOLATION OF A SAFETY RULE

     Code § 65.2-306(A)(5) provides as follows:       "No

compensation shall be awarded to the employee . . . for an

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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 prevail on the defense of willful violation of a safety

rule, the 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. 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 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, 456 S.E.2d at 161.     Factual findings made by the

commission will be upheld on appeal if supported by credible

evidence.   See James v. Capitol Steel Constr. Co., 8 Va. App.

512, 515, 382 S.E.2d 487, 488 (1989).

     The forklift safety video, which was admitted into

evidence, under the category of "Prohibited Actions" states:

"Especially never allow anyone to stand or ride on the forks or

use the forks as an elevator.   The only approved method of




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hauling or hoisting workers is in a secured platform or safety

cage."

     In ruling that PSS proved that Wallace willfully violated

this safety rule, the commission found as follows:

          Canon and [PSS] had a rule prohibiting the
          use of lifting a worker on a forklift
          without a safety cage. This rule was
          designed to provide for the safety of
          employees. [Wallace] knew the rule,
          inasmuch as the safety videotape
          specifically noted under prohibited acts
          that individuals were not to ride on
          forklifts, nor were they to be lifted. The
          video specifically stated that the only way
          to lift people was in a caged forklift.

               [Wallace] does not contend that he did
          not perform the act. In fact, [he]
          testified that he did not believe it was
          dangerous. There is no evidence that there
          was any type of emergency or time limit for
          putting up the banner. While [Wallace]
          indicated that the first task he was
          assigned that morning was to put up the
          banner, Mr. Hamlin testified that no one was
          assigned this task. [Wallace] elected to do
          so on his own. [Wallace] indicated his
          co-worker went to get a caged forklift, but
          they were being utilized elsewhere. This is
          contrary to the testimony of Mr. Hamlin, who
          indicated that in his 12 years there, he had
          never experienced a time when the proper
          equipment, be it a caged forklift or another
          vehicle used for this purpose was not
          available. Even if the appropriate
          equipment was not available, the evidence
          fails to establish that this task could not
          have been deferred until such time as it
          could be procured.

     The commission's factual findings are supported by credible

evidence, including the testimony of Hamlin and Young.   Their

testimony and review of the safety video support the finding

                              - 6 -
that a rule prohibited lifting a worker on a forklift without a

safety cage and that this rule was designed to provide for the

safety of employees.   Wallace knew the rule.   The safety video

specifically noted that individuals were not to ride or be

lifted on forklifts.   The video stated that people should be

lifted only in a cage.   Wallace violated this rule and as a

consequence was injured.   The commission did not err in ruling

that he is barred from receiving benefits under the Workers'

Compensation Act.

     We affirm the commission's decision.

                                                         Affirmed.




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