                    COURT OF APPEALS OF VIRGINIA


Present:    Judges Bray, Annunziata and Overton


JOSE O. PEREZ
                                                  MEMORANDUM OPINION *
v.   Record No. 0525-97-3                             PER CURIAM
                                                     JULY 29, 1997
BLAUCH BROTHERS, INC. AND
 VIRGINIA CONTRACTORS GROUP
 SELF-INSURANCE ASSOCIATION


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
            (A. Thomas Lane, Jr., on brief), for
            appellant.

            (Cathleen P. Welsh; Wharton, Aldhizer &
            Weaver, on brief), for appellees.



     Jose O. Perez (claimant) contends that the Workers'

Compensation Commission (commission) erred in finding that his

claim for an award of compensation benefits was barred by his

willful violation of a safety rule.   Upon reviewing the record

and the briefs of the parties, we conclude that this appeal is

without merit.   Accordingly, we summarily affirm the commission's

decision.   Rule 5A:27.

     "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."       Brockway v.
Easter, 20 Va. App. 268, 271, 456 S.E.2d 159, 161 (1995).
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
                 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).
     On appeal, we view the evidence in the light most favorable

to the prevailing party 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 December 5,

1995, claimant and a co-worker were using a manlift 1 to drill

four-inch holes in a ceiling.    Because they were unable to move

close enough to the ceiling with the manlift to perform their

work, claimant placed a two-foot by six-foot plank on the top of

the guard rails and used the plank as a raised platform to

perform the work.   While performing this work, claimant fell

approximately thirty feet to the floor below.

     Prior to claimant's accident, Donald Stewart, a sales

representative for Equipco Rental Sales, instructed all
     1
      A manlift is a four by six foot platform with four guard
rails around it. The guard rails are approximately one and
one-half feet above the platform. A manlift can be operated to
move horizontally and vertically.



                                  2
employees, including claimant, on the proper operation of the

manlift.   Stewart instructed them not to climb on the guard

rails, not to place any objects from one side to the other to

stand on, and to not use boxes or ladders while on the manlift.

Stewart also told them to keep their feet on the deck of the

manlift.   In addition, a co-worker testified that the employees'

supervisor had specifically instructed the employees not to use

ladders or boxes on the manlift in order to extend their reach.

Claimant admitted that he had read a warning placard on the

manlift, which cautioned employees not to stand or sit on the

guard rails.
     Based upon this credible evidence, the commission properly

concluded that claimant violated a reasonable safety rule known

by him and promulgated for his benefit, and that he intentionally

undertook to perform the forbidden act.   Claimant's willful

disregard of the safety rule proximately caused his injuries.

     In its role as fact finder, the commission was entitled to

accept this evidence over claimant's self-serving testimony to

the contrary.   In addition, the commission was entitled to accept

the testimony of claimant's supervisors, who denied any knowledge

of instances prior to claimant's accident when the safety rule

was not enforced.   "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.

                                                  Affirmed.




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