                  COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Coleman and Overton
Argued at Salem, Virginia


SALLY INEZ ADAMS, on behalf of her niece,
 JAMILL C. BOYSAW

v.       Record No. 0260-94-3                 OPINION BY
                                       JUDGE SAM W. COLEMAN III
HERCULES, INC. and                       DECEMBER 29, 1995
 INSURANCE COMPANY OF NORTH AMERICA


       FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
          Sally Inez Adams, pro se.

          Monica L. Taylor (Melissa W. Scoggins; Dale W. Webb;
          Gentry Locke Rakes & Moore, on brief), for appellee.



     In this workers' compensation appeal, Sally Inez Adams, on

behalf of her niece, Jamill C. Boysaw, contends that the

commission erred in denying an award for death benefits pursuant

to Code § 65.2-512.   The commission denied the claim under

Code § 65.2-306(A)(1) on the ground that Ivery Adams Boysaw

(Boysaw), the employee who died in an industrial accident,

engaged in willful misconduct.   Because credible evidence

supports the commission's finding that Boysaw engaged in willful

misconduct, we affirm the denial of the claim.

     Boysaw and Mary Scott Duncan, both of whom worked in the

solvents department at Hercules, Inc., died on October 18, 1991,

in the course of their employment while assisting with the

transfer of ether from a railroad car to a storage tank.     The

storage tanks are located within a concrete enclosure called a

"dike," which controls spills from the tanks.    Employees access
the dike by climbing a set of metal stairs to a platform and

descending into the enclosed area.      A sign at the top of the

steps states, "Danger," and warns that a permit is required for

entry.    Co-workers found Boysaw and Duncan's bodies in the

containment dike surrounding tank W-9.     Boysaw and Duncan died

from full cardiopulmonary arrest secondary to ether exposure.

     Hercules contends that Boysaw and Duncan violated a company

safety rule by entering the dike without a confined space entry

permit.   Prior to July 1990, employees could enter the dikes

without permits.   In July 1990, however, the Safety Department at

Hercules sent to Monty Brown, the supervisor of the solvents

department, a memorandum requiring employees to obtain confined

space permits before entering the dikes.     Brown called a meeting

on July 16, 1990, to discuss this memorandum and circulated a

written safety rule that required a confined space permit to

enter the dikes for any reason.    The requirement to obtain a

confined space permit enables a safety inspector to measure the

concentration of ether vapors in the air before employees enter

the dike.   Ether robs the air of oxygen, and prolonged exposure

to high levels of ether is dangerous and can be fatal.     At the

close of the meeting, Brown asked the employees present to sign

the back of the rule.   Boysaw was present and signed the rule,

which took effect immediately after the meeting.
     Chevella Heslep, a safety inspector at the time of the




                                  -2-

                                   2
accident, was responsible for granting permits for the solvents

area.    According to Heslep, she "strictly" enforced the permit

rule, which was "for everyone's safety."    Heslep testified that

she had granted permits to Boysaw and Duncan on several

occasions, but that neither employee requested a permit on the

evening of the fatal accident.    Heslep further testified that she

saw Boysaw and Duncan's bodies in the dike, that the bodies were

saturated with ether, that the "Danger" sign posted at the

entrance to the dike was in place, and that Boysaw's hard hat and

a radio Boysaw and Duncan shared were on the platform under the

sign.
        Charles Gardner, Director of Safety and Loss Prevention at

Hercules, investigated the accident and prepared a report of his

investigation.    Gardner testified that Boysaw and Duncan were

responsible for controlling the valves during the ether transfer

to storage tanks W-12, W-10, and W-8, and that they did not have

to enter the dike to perform this operation.    According to

Gardner, his investigation revealed that ether was mistakenly

pumped into tank W-9, and action was taken to "equalize" tanks

W-9 and W-10.    To equalize the ether level between the two tanks

would require the operator to enter the dike and open the

discharge valves between them to reduce an overflow in one tank.

Hercules' policy does not allow equalization because it

contaminates the ether in the two vessels.    Because tank W-10




                                  -3-

                                   3
contained contaminated ether, and because ether stains were

present on the concrete floor of the dike surrounding tank W-9,

Gardner concluded that a spill had occurred due to the overflow

causing the operators to enter the dike to "equalize" the tanks.

Furthermore, Gardner testified that following the accident, he

recovered two buckets, one of which was partially filled with

ether, two dust pans, a broom, folded glasses, gloves, a pen, and

shoes from the confined area where the bodies were found.   These

items also led Gardner to conclude that Boysaw and Duncan had

entered the dike to clean up the ether spill.   The evidence also

showed that they had not obtained a confined space entry permit.
     The deputy commissioner denied the claim for benefits on the

ground that Boysaw engaged in willful misconduct in violation of

Code § 65.2-306(A)(1) by entering the containment dike in

violation of a company safety rule.   The full commission affirmed

the deputy commissioner's opinion.

     The claimant contends, in effect, that, although Boysaw's

failure to follow a prescribed safety rule may have been

negligence, her actions could not be considered misconduct when

she was in good faith dealing with an emergency situation in

furtherance of her employer's business interest.   She argues that

the commission's action barring a workers' compensation claim on

the ground of misconduct for acts that amount only to negligence

countermands the very purpose of the Workers' Compensation Act,




                               -4-

                                4
which limits the amount that employees can recover from their

employers for workplace injuries in exchange for the employers

giving up certain common-law defenses, such as contributory

negligence and assumption of the risk.   The claimant asserts that

because the defense of misconduct works a forfeiture of benefits,

it should be narrowly applied to acts where the employee was not

attempting to further the employer's business interest or was

clearly engaged in conduct outside of the employee's duties.     As

persuasive as the claimant's argument may be, it is contrary to

established law in Virginia.
     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 § 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



                                 -5-

                                  5
interest, his failure to comply with the safety rule was held to

be misconduct.   Thus, we 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).   Hercules concedes that

Boysaw's death arose out of and during the course of her

employment.   However, Hercules raises 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

Boysaw 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



                                 -6-

                                  6
Va. App. 501, 505, 413 S.E.2d 69, 72 (1992).    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 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).

     Although neither Boysaw nor Duncan requested a permit to

enter the dike area, their bodies were found in the dike and

Boysaw's hard hat and radio were found on the platform under the

"Danger" sign.   Moreover, Gardner's testimony that someone

attempted to equalize tank W-9, together with the stains on the

floor of the dike and the items Gardner recovered from the dike

after the accident, were 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 Boysaw and Duncan "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



                                 -7-

                                  7
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).      Both Heslep and Gardner

testified that Hercules "strictly enforced" the rule requiring a

permit to enter a confined space.       Thus, unless the evidence

showed that Boysaw had a valid reason for failing to obey the

permit rule, the willful misconduct defense applies.
     In Spruill, we 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.       We 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.
     Here, the evidence showed that, at the time of the accident,

Hercules had adopted safety rules requiring employees to contain

spills under certain circumstances before notifying a supervisor.

At the hearing before the deputy commissioner, Heslep read

Hercules' Rule 5.1.10 of Procedure Number 4-2-1F, which states,

"[a]ll leaks, spills or overflows shall be contained, if

possible, and then supervision shall be notified immediately (see




                                -8-

                                    8
Procedure 4-2-25)."   Furthermore, both Heslep and Gardner

testified that Rule 5.1.7 of Procedure Number 4-2-25 states,

"[i]f needed to control the spill or keep the incident from

getting worse, emergency measures first shall be taken and

supervision notified immediately after containing the spill is

accomplished."   Heslep, however, testified that these rules do

not apply to spills in the dikes because such spills are already

"contained within [the dike's] concrete walls."   In addition,

Gardner testified that the dikes were "approved confining

locations for the solvents, acids or whatever is contained in the

vessel," and that even if a spill did occur, an employee could

not enter the dike without a confined space permit.
     Although claimant contends that Rule 5.1.10 does not apply

to leaks, spills, or overflows in the dike, Gardner's testimony

is the only evidence in the record that addresses the proper

interpretation and application of these rules.    No evidence in

the record proves that Boysaw interpreted or understood Rule

5.1.10 to authorize or require her to contain a spill in the

dikes before notifying her supervisor or obtaining a permit.

Accordingly, the evidence does not provide a valid reason for

Boysaw's failure to obtain a permit before entering the dike.

     We hold that credible evidence supports the commission's

finding that Boysaw engaged in willful misconduct by entering the

dike without a permit, and we affirm the denial of the claim.




                                -9-

                                 9
       Affirmed.




-10-

 10
