                        COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton and Kelsey
Argued by teleconference


MEGA CONTRACTORS, INC. AND
 VIRGINIA CONTRACTORS GROUP
 SELF-INSURANCE ASSOCIATION                 MEMORANDUM OPINION * BY
                                    CHIEF JUDGE JOHANNA L. FITZPATRICK
v.   Record No. 1843-02-2                       FEBRUARY 4, 2003

JOHN THOMAS BURRELL (DECEASED)
 BY MARIAN BURRELL (WIDOW)


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Roger L. Williams (Williams & Lynch, on
          brief), for appellants.

          B. Elliott Bondurant(Hudson & Bondurant,
          P.C., on brief), for appellee.


     Mega Contractors, Inc. (employer) contends the Workers'

Compensation Commission (commission) erred in finding that John

Thomas Burrell (Burrell) was killed in an accident arising out

of and in the course of his employment and that Burrell did not

intentionally violate a safety rule promulgated by employer

barring compensation.    Finding no error, we affirm the

commission's decision.

                               I.   FACTS

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

favorable to the claimant, who prevailed before the commission."


     * Pursuant to Code § 17.1-413 this opinion is not
designated for publication.
Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 672, 508 S.E.2d

335, 340 (1998) (citations omitted).       "'Decisions of the

commission as to questions of fact, if supported by credible

evidence, are conclusive and binding on this Court.'"       WLR Foods

v. Cardosa, 26 Va. App. 220, 230, 494 S.E.2d 147, 152 (1997)

(quoting Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227,

229, 409 S.E.2d 824, 826 (1991)).      "The commission, like any

other fact finder, may consider both direct and circumstantial

evidence in its disposition of a claim."       VFP, Inc. v. Shepherd,

39 Va. App. 289, 293, 572 S.E.2d 510, 512 (2002).      "Where

reasonable inferences may be drawn from the evidence in support

of the commission's factual findings, they will not be disturbed

by this Court on appeal."       Hawks v. Henrico County School Board,

7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988).      "In

determining whether credible evidence exists, [this Court will]

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. Brooks, 12 Va. App. 890,

894, 407 S.E.2d 32, 35 (1991) (citation omitted).      "The fact

that there is contrary evidence in the record is of no

consequence if there is credible evidence to support the

commission's finding."    Id.

     On September 9, 2000, employer, a paving company, was

performing roadwork near the tollbooths on the downtown

expressway in Richmond.   Burrell, who worked as a milling

                                   - 2 -
machine operator for employer, was struck and killed by a vacuum

truck.   At the time of the accident, he had moved approximately

sixteen feet away from his position at the rear of the milling

machine and was standing in the prior section watching the

milling machine.    He was struck by the vacuum truck as it

reversed to return to the beginning of that section.   Burrell

was not visible to the driver of the vacuum truck, and witnesses

heard no warning sounds.

     Burrell was an "experienced groundsman" for employer.    He

walked behind and to the side of the milling machine to monitor

sensors that gauged the depth of the cut the machine made in the

pavement.   Burrell's job required that he monitor and adjust the

sensors and make sure no obstructions interfered with their

performance.    Additionally, he was required to check the belts

and wear on parts of the machine and observe the pavement that

the milling machine cut so that the "asphalt will be smooth."

     Typically, the milling machine makes three passes to cut a

section of pavement.   The pavement that is cut is scooped by the

milling machine into a dump truck that moves with the milling

machine.    The milling machine is followed by a sweeper truck and

finally, a vacuum truck moves up the cut to clear up any debris

that remains.   When the truck reaches the end of the cut in the

pavement, it backs up in the cut to return to the starting point

and begins again.   Both the milling machine and the vacuum truck

move simultaneously.   The milling machine makes a first cut on

                                - 3 -
the next section while the vacuum truck makes its first pass on

the section that the milling machine and the sweeper have just

finished. At the time of the accident, the noise level was high.

The milling machine, the vacuum truck and a dump truck in front

of the milling machine were running, and the sweeper truck was

idling.   The vacuum truck was equipped with a back-up alarm, but

it was inaudible to witnesses at the time of the accident.

     Roy Anderson, the general superintendent on this site,

testified, "I was being the groundsman on the right side of the

[milling] machine, helping [Burrell] who was on the left side of

the machine."   He stated that part of the groundsman's job is to

check the prepared surface to make sure it is smooth.   This can

be accomplished by the groundsman running his hands or feet over

the surface.    He had never seen anyone step back into the prior

cut to check the surface, but each groundsman can use any method

he chooses based on his experience.

     Immediately before the accident, Anderson stepped away from

his position beside the milling machine and walked to Burrell's

side and "noticed some material . . . the vac [sic] truck had

. . . left [in a prior cut] which was 21 feet [beside] the

milling machine."   He approached the vacuum truck driver and

told him to make another pass on the preceding section.   He did

not tell Burrell the vacuum truck would be returning to the

beginning of the cut.   The operator of the milling machine



                                - 4 -
testified he saw Burrell adjusting the sensors on the machine

before the accident.

     The commission found that:

                 The evidence reveals that [Burrell] was
            looking at the cut at the time of the
            accident, and that it was part of his job to
            make sure the cut is level. Although Mr.
            Anderson never saw anyone check the cuts in
            this manner, he stated the method for doing
            so is dependent upon the experience of the
            groundsman. Mr. Burrell was an experienced
            groundsman, and there was no requirement
            that the groundsmen must stay within arms
            length of the machine at all times. Mr.
            Anderson was performing the functions of a
            groundsman and had also left his position at
            the side of the machine to go talk with the
            vacuum truck driver. This left Mr. Burrell
            as the only groundsman monitoring the cuts
            and the sensors. Just prior to the
            accident, [Burrell] had been observed
            performing his duties next to the milling
            machine. Based on this evidence, we find
            [Burrell] was reasonably where he was
            expected to be, fulfilling the duties of his
            employment. Therefore, we agree with the
            Deputy Commissioner that this accident arose
            out of and in the course of Mr. Burrell's
            employment.

     As part of employer's safety program, all employees

received a company handbook and attended regular safety

meetings.   Safety rule No. 9 states that workers "stay clear of

buckets, loads and counterweights.      Never walk behind or on the

blind side of equipment or vehicles; maintain eye contact with

the operator/driver while crossing."     Burrell was present at

meetings where that rule was discussed.




                                - 5 -
          The commission further found that:

          After careful consideration of the evidence,
          we find no intentional violation of the
          safety rule cited by the employer. There is
          no evidence that Mr. Burrell knew he was in
          the blind spot of the vacuum truck. Mr.
          Straus testified that [Burrell] was not
          looking at the [vacuum] truck.
          Additionally, there were several pieces of
          equipment running at the time of the
          accident. The milling machine operator has
          to wear earplugs because the machine is so
          loud. At least one of the alarms on the
          vacuum truck was inaudible, and the
          witnesses did not testify that they heard a
          warning signal coming from the vacuum truck.

               Moreover, until Mr. Anderson had spoken
          with the vacuum truck driver, the vacuum
          truck had been proceeding forward in a lane
          at some distance from the milling machine.
          Mr. Anderson did not speak with Mr. Burrell
          to tell him that the vacuum truck would be
          backing up. . . . Based on this evidence,
          we agree with the Deputy Commissioner's
          finding that the employer failed to prove
          willful misconduct.

(Internal citations omitted).   Employer appealed the

commission's decision.

                                 II.

     Employer first argues that Burrell's accident did not arise

out of his employment because he was not at a place where he was

reasonably expected to be.   We disagree.

     "Whether an accident arises out of employment is a mixed

question of law and fact and is . . . reviewable upon appeal."

Mullins v. Westmoreland Coal Co., 10 Va. App. 304, 307, 391

S.E.2d 609, 611 (1990) (citation omitted).


                                - 6 -
                An accident arises out of the
           employment when there is a causal connection
           between the claimant's injury and the
           conditions under which the employer requires
           the work to be performed. Under this test,
           an injury arises "out of" the employment
           when it has followed as a natural incident
           of the work and has been a result of the
           exposure occasioned by the nature of the
           employment. Excluded is an injury which
           comes from a hazard to which the employee
           would have been equally exposed apart from
           the employment. The causative danger must
           be peculiar to the work, incidental to the
           character of the business, and not
           independent of the master-servant
           relationship. The event must appear to have
           had its origin in a risk connected with the
           employment, and to have flowed from that
           source as a rational consequence.

United Parcel Service v. Fetterman, 230 Va. 257, 258-59, 336

S.E.2d 892, 893 (1985) (internal citations omitted).   "[The

Workers' Compensation Act] has always required the claimant to

carry the burden of proving, by a preponderance of the evidence,

. . . an 'injury by accident' . . . arising out of and . . . in

the course of, the employment."    Morris v. Morris, 238 Va. 578,

584, 385 S.E.2d 858, 862 (1989).

     Credible evidence supports the commission's finding that at

the time of the accident, Burrell was on the job site,

performing his work in an area where he was reasonably expected

to be.   He was standing less than sixteen feet from the milling

machine looking at an area of pavement that had just been cut.

An essential part of Burrell's job was to check the cut pavement

to make sure it was smooth.   The evidence in the record proved


                               - 7 -
that the method for checking the cut pavement is properly

determined by each groundsman based on his experience.     Contrary

to employer's argument, no evidence proved that Burrell was

required to stay within an arm's length of the milling machine.

In fact, Anderson, the general superintendent, who was also

working as the groundsman on the right side of the milling

machine, left his position and went to the previously cut area

to inspect for debris.

     Employer relies on the holding in Norfolk and Wash. S. Co.

v. Holladay, 174 Va. 152, 5 S.E.2d 486 (1939), and Conner v.

Bragg, 203 Va. 204, 123 S.E.2d 393 (1962), to support its

contention that Burrell was not in a place where he was

reasonably expected to be.   This reliance is misplaced.

     In Holladay, the claimant, a passenger representative and

tour conductor for a steamboat company, was struck by a train

while crossing a train trestle.   He left his job site to procure

whiskey for some passengers from a liquor store located more

than a mile away.   While taking a "shortcut" over the train

trestle, he was struck by a train and injured.   On these facts,

the Supreme Court held that:

          We have a situation, then, in which there
          was no causal connection between the
          conditions under which the work was required
          to be done and the resulting injury; one in
          which the injury can not be said to have
          followed as a natural incident of the work
          and to have been contemplated in the
          contract of employment, but on the contrary
          resulted from a hazard and risk which the

                               - 8 -
          employee voluntarily brought upon himself by
          putting himself in a manifestly dangerous
          place where he had no right to be and where
          the work which he was doing for his employer
          did not reasonably require him to be. In
          such a situation the employee is not
          entitled to compensation.

174 Va. 159-60, 5 S.E.2d at 489 (emphasis added).

     In Conner, Bragg, an employee of Conner's service station,

was warned to "leave [the front-end loader] alone."     However, he

filled its bucket with trash and drove to the city dump.    Bragg,

who had no experience operating the machinery, continued to

drive it after it kept "slipping out of gear."   The front-end

loader eventually turned over and injured claimant.

     The Supreme Court held that:

               The evidence shows, and the Commission
          so found, that Bragg was not familiar with
          the operation of the front-end loader and it
          was dangerous for him to operate it. Yet,
          he voluntarily put himself in a place of
          danger, which was outside of any reasonable
          requirement of his employment, and his
          injury did not arise out of his employment
          contract.

              *     *     *     *     *     *       *

               Here, Bragg was injured while operating
          a machine not designed for the use he made
          of it, and on which he was not reasonably
          expected to be, and had no right to be,
          under his employment contract. He stepped
          beyond the sphere and scope of his
          employment to satisfy his own desire to
          operate the machine.

203 Va. 210-11, 123 S.E.2d at 398 (emphasis added).




                              - 9 -
     Neither case is factually compatible with an employee who

is standing in the specific job site area required by his work

and who is attempting to perform a required job function.

Burrell did not choose a dangerous path or route away from his

work site as in Holladay, nor was he operating machinery with

which he was unfamiliar and had been specifically warned to

avoid as in Conner.       This accident occurred during the work day

and at the time of the accident he was within sixteen feet of

the milling machine, looking back at the cut pavement.        These

circumstances establish that Burrell's injury by accident was a

natural incident of his work and resulted from an exposure

occasioned by the nature of this work.         Thus, the commission

correctly found the accident arose out of Burrell's employment.

                                   III.

     Employer next contends that Burrell is barred from

receiving compensation because he willfully violated a company

safety rule.   We also disagree.

     Code § 65.2-306(A) and (B) provide in pertinent part:

          A. No compensation shall be awarded to the
          employee or his dependents for an injury or
          death caused by:

          1. The employee's willful misconduct or
          intentional self-inflicted injury;

               *      *       *     *      *       *     *

          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 . . . .


                                  - 10 -
           B. The person or entity asserting any of
           the defenses in this section shall have the
           burden of proof with respect thereto. . . .

"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.

Giggetts, 34 Va. App. 297, 302, 541 S.E.2d 294, 297 (2001)

(citing Buzzo v. Woolridge Trucking, Inc., 17 Va. App. 327, 332,

437 S.E.2d 205, 208 (1993)).

           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.

Brockway v. Easter, 20 Va. App. 268, 270-71, 456 S.E.2d 159, 161

(1995).   "The defense may be established without the necessity

of proving that the employee, with the rule in mind,

purposefully determined to break it.     It is sufficient to show

that, knowing the safety rule, the employee intentionally

performed the forbidden act."    Spruill v. Wright Construction

Company, Inc., 8 Va. App. 330, 334, 381 S.E.2d 359, 361 (1989)

(internal citations omitted).

     In this case, the commission found no intentional or

willful violation of a safety rule.      Burrell was in a part of



                                - 11 -
the work site where he was reasonably expected to be.

Eyewitnesses established that the vacuum truck backed toward

Burrell and that the noise level was so high no warning signals

were heard.    There is no evidence Burrell was aware that he was

in the path of the vacuum truck or in that driver's blind spot.

Further, Anderson told the vacuum truck to re-sweep the prior

cut without notifying Burrell the truck would be backing up in

the first cut.    The company's safety rule required an employee

to behave a certain way if he was behind, crossing or in a

driver's blind spot.    In the instant case, credible evidence

supports the commission's finding that Burrell was unaware he

was behind the vacuum truck or in the driver's blind spot.

Thus, there was no intentional violation of a company safety

rule.

        For the foregoing reasons, we affirm the decision of the

commission.

                                                          Affirmed.




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