                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Bray, Annunziata and Overton


EAGLE INDUSTRIAL INSTALLATIONS, INC.
AND
AMERICAN AND FOREIGN INSURANCE COMPANY

v.   Record No. 0758-95-2                         MEMORANDUM OPINION *
                                                      PER CURIAM
WILLIAM TERRY KITE                                SEPTEMBER 19, 1995


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
             (John M. Oakey, Jr.; Jill M. Misage; McGuire, Woods,
             Battle & Boothe, on briefs), for appellants.

             (Brian J. Cusce, on brief), for appellee.



     Eagle Industrial Installations, Inc. and its insurer

(hereinafter collectively referred to as "employer") contend that

the Workers' Compensation Commission erred in holding that

William Kite was not barred, pursuant to Code § 65.2-306, from

receiving an award of compensation because of 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 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

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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
          question 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.      Upon review of the record, the

commission found "that the claimant has offered a satisfactory

explanation for his failure to use the safety line."
        Employer had a published safety rule mandating that

employees use a safety line when working under any circumstances

in which a line would prevent a fall.     As a superintendent/safety

supervisor, claimant was aware of and enforced this rule.

        On May 11, 1994, claimant and a co-worker were called to

inspect a leaking pipe.    The pipe was situated over a pit

approximately ten feet deep.    The pit was surrounded by a metal

guardrail.    Claimant stepped through an opening in the guardrail

and onto a horizontal six-inch pipe located near a vertical pipe.

He intended to step over to a "blow box" in order to inspect the

leak.    However, his foot slipped as he stepped to the pipe, and

he fell ten feet, sustaining a compound fracture of the right

leg.

        Claimant admitted that if employees had been assigned to

work on the pipe, they would have been required to use a safety


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line.    A safety line and harness were available to claimant, but

he was not wearing a safety line when he fell.

        Claimant testified that he only intended to inspect the

pipe, not to work on it.    He also asserted that if he had worn a

safety line, it would not have been long enough to allow him to

reach the "blow box."    He could not have used a ladder to inspect

the pipe, because it was spilling hot water into the pit.

        The commission believed claimant's testimony that the safety

line was too short to be used under the circumstances.    Evidence

in the record supports this finding.    Employer does not dispute

that claimant was assigned to inspect the pipe.    According to

claimant he could not have carried out this task if he had hooked

up to a safety line.
        The record clearly established that employer had adopted a

reasonable safety rule, trained its employees in its application,

and enforced the rule.    However, we find upon review that there

is evidence in the record to support the commission's findings.

Claimant testified that he could not have inspected the pipe if

he had hooked up to a safety line which was attached to the

handrail.    The record shows that the use of an alternative

method, such as a ladder, was not feasible.    We hold that, based

upon the record, credible evidence supports the commission's

finding that claimant provided a satisfactory explanation for his

failure to wear a safety line.    Because of this finding,

employer's defense of willful misconduct or violation of a safety




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rule cannot prevail.   Accordingly, we affirm the commission's

decision.

                                     Affirmed.




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