                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Bray, Annunziata and Overton


MARVIN V. TEMPLETON & SONS, INC.
AND
ROYAL INDEMNITY COMPANY
                                              MEMORANDUM OPINION *
v.   Record No. 1177-95-3                         PER CURIAM
                                               DECEMBER 29, 1995
DARNELL O. DIXON


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

            (George L. Townsend; Chandler, Franklin & O'Bryan, on
            brief), for appellee.



     Marvin V. Templeton & Sons, Inc. and its insurer

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

the Workers' Compensation Commission erred in holding that

Darnell O. Dixon's willful violation of a safety rule did not bar

him from receiving an award of compensation for injuries.     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

employee intentionally undertook the forbidden act."    Brockway v.
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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.   In finding that employer did

not establish a willful violation of a safety rule, the

commission found as follows:
               The employer had a written safety rule,
          promulgated to the employees on February 15,
          1993, requiring written permission from
          qualified persons prior to entering a
          confined space. The weigh hopper was not
          listed as a confined space, but the claimant
          testified that he considered it to be one.
          We find that [sic] the rule reasonable and
          that he had knowledge of that rule. However,
          the evidence clearly shows that the Confined
          Space Policy was not enforced by the employer
          prior to the claimant's injury. Testimony
          was presented from employees and supervisors
          indicating that each group entered confined
          spaces without a written permit and that no
          reprimands were issued as a result of those
          unauthorized entries. It appears that each
          group considered oral communication to be an
          adequate substitute. Because of this lack of
          enforcement, we find that the employer has
          not proven by a preponderance of the evidence
          that the claimant violated the Confined Space
          Policy.


These factual findings are supported by the testimony of

claimant, Foster, Cardwell, Landrum, Jordan, and Allen.    All of



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these supervisors and employees testified that they or others had

entered confined spaces, prior to claimant's accident, without

obtaining a written permit and with employer's knowledge, and

that they had never been reprimanded for such conduct.

Accordingly, these findings are binding on appeal and provide

proof of employer's pattern or practice of failing to discipline

employees guilty of willful violations of a safety rule.    Such

proof defeats employer's defense.     See Vepco v. Kremposky, 227

Va. 265, 315 S.E.2d 231 (1984).
     Moreover, employer's argument that claimant violated an

unwritten safety rule requiring oral permission from a supervisor

before entering a confined space is without merit.    Claimant

admitted that such a rule existed.    However, employer did not

dispute that claimant informed Landrum, acting plant

superintendent, that he had to repair a malfunction in the weigh

hopper by unhanging the gate.   Claimant testified that the gate

could not have been fixed from outside the weigh hopper.    He also

stated that, based upon the repair to be performed, he believed

Landrum knew he was going into the weigh hopper to do the work.

Claimant confirmed that he had been in a weigh hopper, on prior

occasions, with the knowledge of Landrum and Jordan.    Based upon

claimant's testimony, the commission found that "claimant

subjectively felt that this communication was sufficient to

inform Landrum, who was on his 'first day as superintendent,'

that he would be working inside the hopper."    "Where reasonable



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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 Sch. Bd., 7 Va. App.

398, 404, 374 S.E.2d 695, 698 (1988).    Accordingly, we cannot say

as a matter of law that the commission erred in finding that

employer's evidence failed to prove any wrongful intent on

claimant's part.    Because of this finding, employer's defense of

willful violation of a safety rule cannot prevail.     Virginia law

requires an employer to prove more than negligence or the

exercise of the will in doing an act; employer must prove a

wrongful intention.     Uninsured Employer's Fund v. Keppel, 1 Va.

App. 162, 164, 335 S.E.2d 851, 852 (1985).

     For the reasons stated, we affirm the commission's decision.

Because our rulings on the issues raised by employer dispose of

this appeal, we will not address the notice issue or proximate

cause issue raised by claimant in his brief.

                                           Affirmed.




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