                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Elder, Bumgardner and Lemons


ABEX FRICTION PRODUCTS COMPANY AND
 LIBERTY MUTUAL FIRE INSURANCE COMPANY
                                             MEMORANDUM OPINION*
v.   Record No. 3004-98-4                         PER CURIAM
                                                 JUNE 1, 1999
GERALD WAYNE BUTCHER


           FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

             (J. David Griffin; Bradley W. Finch; Fowler,
             Griffin, Coyne, Coyne & Patton, P.C., on
             brief), for appellants.

             (Gary W. Kendall; J. Gregory Webb; Michie,
             Hamlett, Lowry, Rasmussen & Tweel, P.C., on
             brief), for appellee.


     Abex Friction Products Company and its insurer (hereinafter

referred to as "employer") contend that the Workers' Compensation

Commission (commission) erred in (1) finding that employer failed

to prove its defense that Gerald Wayne Butcher (claimant)

willfully violated employer's safety rule against fighting; (2)

not granting employer's motion to dismiss claimant's appeal based

upon claimant's failure to identify specific errors of the deputy

commissioner in his request for review; and (3) not granting

employer's motion to dismiss claimant's appeal based upon

claimant's failure to timely file his written statement.    Upon



    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
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.      See Rule 5A:27.

                                  I.

     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).      Unless

we can say as a matter of law that employer’s evidence sustained

its burden of proof, the commission’s findings are binding and

conclusive upon us.   See Tomko v. Michael’s Plastering. Co., 210

Va. 697, 699, 173 S.E.2d 833, 835 (1970).

     "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).

     In ruling that employer failed to prove that claimant

willfully violated employer's safety rule against fighting, the

commission found as follows:

          [W]e find that the claimant did not violate
          the employer's rule against fighting. The
          uncontradicted testimony by both the
          claimant and an eyewitness is that the
          claimant was the victim of an assault from
          behind as he was walking to his work
          station. Even after he was shoved to the
          ground, the assault continued while the
          claimant did nothing but try to cover his

                                 - 2 -
           face as the assailant punched him. The
           claimant was not a willing participant in a
           fight. The Deputy Commissioner denied the
           claim because the claimant made one
           derogatory remark, calling Mr. Gibbs a
           "scab." However, the uncontradicted
           evidence is that this one derogatory remark
           occurred only after a number of derogatory
           and "dirty" remarks made by Mr. Gibbs, after
           the claimant complained to him that he
           almost ran him over with a forklift. The
           claimant did not strike Mr. Gibbs, nor even
           respond with profanity. We find that the
           claimant's single epithet was not a
           sufficient or reasonably expected
           provocation for a unilateral assault.

     The commission's findings are amply supported by the

record.   The testimony of claimant and eyewitness Gregory S.

Owens established that claimant did not provoke the fight and

did not initiate any physical contact with Gibbs.    Rather, after

claimant said "scab" and then turned and walked away, Gibbs came

up from behind and attacked claimant.     Claimant did not fight

back, but rather tried to cover his face to defend himself

against Gibbs's punches.

     Based upon this record, we cannot say as a matter of law

that employer proved that claimant willfully engaged in the

prohibited conduct of fighting.

                           II. and III.

     Employer's argument that the commission should have granted

its motion to dismiss claimant's pro se appeal to the full

commission on procedural grounds is without merit.




                               - 3 -
        Rule 3.1 of the Rules of the Virginia Workers' Compensation

Commission, requiring that "[a] request for review should assign

as error specific findings of fact and conclusions of law" is

"'not mandatory, but directory only.'"     The Greif Companies v.

Sipe, 16 Va. App. 709, 713, 434 S.E.2d 314, 317 (1994) (citation

omitted).    Consequently, "the failure of a party to specify

certain issues [in the application for review] does not deprive

the commission of jurisdiction to consider issues that are

necessary to a resolution of the claim."     Id.   Here, the

commission acted reasonably in considering and correcting the

commission's erroneous finding on the willful misconduct issue.

        Second, Rule 3.2 related to written statements on review

does not mandate that the commission dismiss an appeal if a

written statement is not timely filed.    Here, the commission

mailed out the schedule for written statements on December 11,

1997.    Claimant did not receive the schedule until nine days

later.    He filed his written statement within fifteen days of

his receipt of the commission's schedule.    That statement

detailed the grounds for its timeliness and for his appeal.

Clearly, claimant's actions in no way prejudiced employer.

Moreover, employer cites no authority for its contention that

claimant's appeal should have been dismissed under these




                                 - 4 -
circumstances.   The commission's interpretation of its rule was

reasonable, and will not be disturbed on appeal.

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

                                                         Affirmed.




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