                               COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Clements and Kelsey
Argued at Salem, Virginia


RANDALL LEE PATTERSON
                                                              MEMORANDUM OPINION* BY
v.     Record No. 1707-05-3                                   JUDGE JAMES W. BENTON, JR.
                                                                  FEBRUARY 21, 2006
VALLEY PROTEINS, INC. AND
 ROYAL INDEMNITY COMPANY


              FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                 Timothy E. Kirtner (Gilmer, Sadler, Ingram, Sutherland & Hutton,
                 on brief), for appellant.

                 Robert M. Himmel (Frith Anderson & Peake, PC, on brief), for
                 appellees.


       The Workers’ Compensation Commission ruled that Randall Lee Patterson’s claim for

workers’ compensation benefits was barred by his “willful misconduct.” See Code § 65.2-306.

Patterson contends the evidence was insufficient to support the commission’s decision. For the

reasons that follow, we affirm the commission’s denial of benefits.

                                                  I.

       Randall Lee Patterson filed a claim for compensation benefits and medical costs for

injuries he suffered while driving a tractor-trailer in the employ of Valley Proteins, Inc. Shortly

before the accident, Patterson stopped on the right shoulder of the highway, exited his vehicle,

and urinated. When Patterson drove the tractor-trailer back onto the highway, another

tractor-trailer hit him from behind. Valley Proteins filed a notice of intent to rely upon a defense

under Code § 65.2-306, which provides, in pertinent part, as follows:

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
               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;

               2. The employee’s attempt to injure another;

               3. The employee’s intoxication;

               4. The employee’s willful failure or refusal to use a safety
               appliance or perform a duty required by statute;

               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; or

               6. The employee’s use of a nonprescribed controlled
               substance . . . .

In its notice of defense, Valley Proteins specifically alleged that Patterson “willfully failed and/or

refused to perform a duty required by statute” when he “illegally stopped his vehicle on the side

of the road . . . and re-entered the roadway . . . without his lights being on.” Later, at the

evidentiary hearing, Valley Proteins asserted that Patterson’s claim was barred by “willful

misconduct under [Code § 65.2-]306” but specifically alleged that Patterson acted in violation of

both a state statute and the employer’s safety rules.

       The circumstances surrounding the accident were in dispute at the hearing. Patterson’s

testimony at the hearing and on deposition was that he stopped his tractor-trailer on the shoulder

of an interstate highway at the top of a hill about 10:00 p.m. in February 2003. He said he

activated the emergency flasher lights on the vehicle, exited the vehicle, and urinated. Before

re-entering the vehicle, he checked the lights and tires. He said everything was working at that

time except for one light, which he had earlier reported to his supervisor.

       According to Patterson, he activated his signal light when he re-entered his vehicle,

looked into his mirrors, and drove onto the highway. He descended the hill and had ascended

three-quarters of the next hill, about a mile from where he entered the highway, when he felt an
                                                 -2-
impact. Patterson said the impact to the truck rendered him unconscious. When he regained

consciousness, he set up emergency markers and called his company to inform them of the

accident. Patterson testified he did not speak with anyone before medical assistance personnel

arrived. Patterson also testified that the investigating police officer gave him a summons for

reckless driving and that a judge later convicted him of improper driving.

       Other evidence before the deputy commissioner materially contradicted Patterson’s

testimony. When Trooper Joe Crowder arrived at the site of the accident, he found Patterson in

the back of an ambulance and somewhat disoriented. Trooper Crowder interviewed Roy Poe, the

driver of the other tractor-trailer involved in the accident. Poe said he was traveling 60 to 65

miles per hour when Patterson drove his vehicle onto the highway. He applied his brakes and hit

the rear of Patterson’s vehicle. Trooper Crowder said Poe later testified in court that Patterson’s

vehicle’s lights were not illuminated.

       Trooper Crowder interviewed another truck driver, Thorston Bendzka, who was traveling

northbound behind Poe’s vehicle. Bendzka “saw [Patterson’s] tractor come off the shoulder, pull

off into the highway and noticed that it didn’t have any hazards or any lights on at the time.”

Bendzka said Patterson “turned his lights on” after Poe’s vehicle hit Patterson’s vehicle.

Bendzka also told Trooper Crowder that, shortly after the collision, Patterson asked Bendzka “to

tell the trooper this is what happened.”

       Trooper Crowder talked to Patterson later that night at the hospital. Patterson said he had

stopped to urinate on the shoulder of the highway, returned to the highway, and was driving up

the hill when another tractor-trailer hit the rear of his vehicle. Trooper Officer Crowder told

Patterson that witnesses said the lights on his truck were not illuminated, Patterson said the lights

were illuminated. Trooper Crowder issued a citation to Patterson for reckless driving “based on

his movements into the highway and the traffic conditions.”

                                                -3-
       Trooper Crowder testified that “signs on the interstate indicate . . . emergency stopping

only.” He also testified that stopping on the shoulder of the highway to urinate is a violation of

Code § 46.2-830, which provides that “[a]ll drivers of vehicles shall obey lawfully erected

signs.” He said “the statute allows you to stop for . . . an emergency, a medical condition of

some sort . . . or . . . a mechanical breakdown.” Trooper Crowder testified that he decided not to

give Patterson a summons for violating Code § 46.2-830 but, instead, elected to charge reckless

driving based upon Bendzka’s observations of Patterson’s driving.

       Hobie Halterman, general manager of a Valley Proteins facility, testified that the

employer considered Patterson’s act of stopping his vehicle on the shoulder of the highway to

urinate to be a non-emergency stopping. He cited company guidelines that prohibit “[c]areless

or willful acts by an employee which endanger or cause injury to another person or employee”

and require “vehicles [to] be operated in a careful, safe manner at all times according to all

federal, state and local laws and prevailing road conditions.” In addition, he testified that Valley

Proteins’s rules mandate compliance with federal and state traffic laws and that Patterson’s act of

stopping to urinate on the shoulder of the highway violated state statute.

       Thomas Harris, Patterson’s supervisor, echoed Halterman’s testimony that Patterson’s

stop was a violation of Valley Proteins’s rules. Harris explained that “you only use the

emergency shoulders for emergencies,” but he also testified that “[i]f you want to you go up to

off ramps and you can pull over there where the space is bigger and stuff.”

       Halterman and Harris also testified that Valley Proteins has a computerized logging

system in its trucks, and they identified the printed report of the data that tracked the activity of

Patterson’s truck. Harris explained that the computer tracking system indicates intervals when

the vehicle is moving or stopped and that, once a truck stops, the system will not register an end

to the stop until the truck has travelled at least two-tenths of a mile. Reviewing the data, Harris

                                                 -4-
testified Patterson stopped for seventeen minutes and then drove back onto the highway, but the

data also indicated the vehicle stopped again due to the accident before the vehicle travelled

two-tenths of a mile. Harris testified that the distance between the place where Patterson claimed

to have stopped to urinate and the place where the collision occurred is further than two-tenths of

a mile. He also testified that the tracking data indicates Patterson stopped at the bottom of the

hill, rather than the top.

                                                   II.

        Resolving contradictory evidence, the deputy commissioner found Patterson to be not

credible and rejected his version of the events. The deputy commissioner found that Patterson’s

stop to urinate was not the result of an emergency or a medical condition and that Patterson

“failed to turn his rig’s lights on” before returning to the highway. Upon an assessment of the

evidence, the deputy commissioner ruled that Patterson’s “injury was occasioned by his ‘willful

failure . . . to . . . perform a duty required by statute’ as well as his concurrent ‘willful breach of’

various [company] safety rules.” This ruling expressly tracked the language of Code

§ 65.2-306(A)(4) and (5).

        On Patterson’s request for review, the commission affirmed the deputy commissioner’s

denial of benefits. In its findings, the commission noted the “two specific acts at issue:

(1) [d]riving with no lights; and (2) pulling off onto a shoulder.” Parsing the evidence, the

commission found as follows:

                [T]he computerized activity report, and Trooper Crowder’s
                testimony, showed that the accident was caused by merging into
                highway traffic, from the shoulder, without lights. We have little
                doubt that [Patterson’s] merging into highway traffic from a
                shoulder at night, without vehicle lights, constituted a failure to
                “perform a duty required by statute.” Code § 65.2-306(A)(4).
                Similarly, while it was less clear that [Patterson] violated an
                employer’s safety rule for pulling onto the shoulder, as Harris
                implied that it was the width of the shoulder, and not the act itself,

                                                  -5-
               that was improper, there was no assertion that driving at night
               without lights was not a violation of the employer’s policies.

The commission found, however, that Patterson did not “deliberately [keep] his lights off” but,

rather, “carelessly drove without his lights.” It concluded, therefore, that this was not a “willful”

act.

       Addressing the other act at issue, the commission ruled that Patterson was not entitled to

compensation because his deliberate use of the shoulder of the highway violated state law. Its

findings included the following:

               The evidence showed that [Patterson] pulled over to urinate.
               Officer Crowder stated that the particular statute in question
               concerned a failure to obey road signs, and that pulling onto a
               shoulder, except in an emergency, was prohibited on the interstate.
               This was not contradicted. We agree with the deputy
               commissioner that [Patterson] did not pull over because of an
               emergency. Pulling back onto the Interstate caused the accident,
               and thus we find that [Patterson’s] injuries were the result of his
               willful misconduct.

                                                 III.

       Patterson raises four issues on this appeal: the evidence was not sufficient to support the

finding that he breached a safety rule or violated a state statute; the evidence did not prove that

any alleged violation was “willful”; Valley Proteins did not strictly enforce its safety rules; and

no causal link existed between any violation and Patterson’s injury. Valley Proteins responds

that it presented sufficient evidence to support its defense and that the commission correctly

found that Patterson’s willful failure to perform a statutory duty barred him from receiving

workers’ compensation benefits. Valley Proteins does not argue that the commission’s decision

rests upon a breach of its safety rule.

       Code § 65.2-306(A) provides six defenses an employer can raise in response to a

workers’ compensation claim. Although three of these defenses expressly use the term “willful,”

these three defenses address distinct circumstances. See Gwaltney of Smithfield, Ltd. v. Hagins,
                                                -6-
32 Va. App. 386, 389 n.1, 528 S.E.2d 162, 163 n.1 (2000). They provide that compensation is

barred by (i) an “employee’s willful misconduct,” (ii) an “employee’s willful failure to use a

safety appliance or to perform a duty required by statute,” or (iii) an “employee’s willful breach

of . . . [an employer’s] rule or regulation” that has been communicated to the employee. Code

§ 65.2-306(A)(1), (4), and (5).

       At the outset, we note that, at the evidentiary hearing, Valley Proteins raised the defenses

provided in Code § 65.2-306(A)(4) and (5), and it argued that Patterson “willfully failed and/or

refused to perform a duty required by statute” and “willfully failed and/or refused to follow the

employer’s company policy and/or safety rules.” The deputy commissioner found that Valley

Proteins prevailed on both issues. On its review, the commission relied upon the officer’s

testimony about the highway signs barring non-emergency stopping and it denied Patterson’s

claim for benefits, finding that he stopped in disregard of the signs― a violation of the state

statute. In its decision, however, the commission used the language “willful misconduct,” which

is pertinent to Code § 65.2-306(A)(1).

       Because the employer defended the claim under Code § 65.2-306(A)(4) and (5), not Code

§ 65.2-306(A)(1), we hold that the issues in the case were Patterson’s alleged violation of statute

and breach of company rules, and we interpret the commission’s opinion as limited to these

issues. See Hagins, 32 Va. App. at 389 n.1, 528 S.E.2d at 163 n.1. We conclude that the text of

the commission’s decision expressly referenced only Code § 65.2-306(A)(4) and barred

Patterson’s claim for violation of a statute, that the commission did not rest its decision upon a

willful violation of the company’s safety rule, and further that the commission’s use of the term

“willful misconduct” was intended to be a generic reference to the “willful” act of failing to

perform in accordance with the statute.




                                                -7-
                                   VIOLATION OF STATUTE

       Patterson contends Valley Proteins did not prove he violated a state statute by stopping to

urinate on the shoulder of the highway. He argues that the commission did not cite which statute

he violated, that “emergency” has not been defined by statute or case law, and that he did not

impede traffic when parked on the shoulder of the highway. Valley Proteins argues that

Patterson violated both Code § 46.2-830 and Code § 46.2-888 when he stopped on the shoulder

of the highway to urinate.

       Code § 65.2-306(A)(4) bars compensation benefits for an employee’s injury caused by

“the employee’s willful failure or refusal to . . . perform a duty required by statute.” Viewed in

the light most favorable to Valley Proteins, the prevailing party below, see R.G. Moore Bldg.

Corp. v. Mullins, 10 Va. App. 211, 212, 309 S.E.2d 788, 788 (1990), the evidence proved that

numerous signs were posted limiting the highway’s shoulder for emergency use only. Trooper

Crowder testified without contradiction that use of the shoulder for other purposes violates Code

§ 46.2-830, which provides in part that “drivers of vehicles shall obey lawfully erected signs.”

       At the evidentiary hearing, Patterson acknowledged knowing that the shoulder of the

interstate highway is designated for emergency use and that using it for non-emergency purposes

is a violation of the statute. Patterson testified, however, that he stopped because the urge to

urinate suddenly “hit [him] . . . and [he] had to go.”

       The commission “agree[d] with the deputy commissioner that [Patterson] did not pull

over because of an emergency.” The word “emergency” has a well-recognized meaning; it

“imports ‘immediate necessity.’” City of Portsmouth v. City of Chesapeake, 205 Va. 259, 266,

136 S.E.2d 817, 823 (1964). The dictionary defines it as “an unforeseen combination of

circumstances or the resulting state that calls for immediate action.” Webster’s Third New Int’l




                                                -8-
Dictionary 741 (1993); see also Garnot v. Johnson, 239 Va. 81, 86, 387 S.E.2d 473, 476 (1990)

(applying the dictionary definition of “emergency” when reviewing a jury instruction).

        The evidence in the record proved that shortly before Patterson stopped to urinate he had

passed an exit from the highway where a truck stop and several service stations were located.

Patterson testified he was “sure that . . . if [he] had to go at that time [he] would have pulled off

[at that exit],” indicating that he did not need to urinate when he passed this exit. Patterson’s

testimony, unsupported by any evidence of a medical condition that produced a sudden urgency,

was a matter for the commission to determine based upon an assessment of the evidence and

Patterson’s credibility.

        The commission’s rejection of Patterson’s testimony is manifested in its analysis of the

evidence. Contrary to Patterson’s testimony, the commission found that the lights on his vehicle

were not illuminated. The opinion expressly states that “the evidence showed . . . the accident

. . . more likely than not resulted from . . . entering the highway . . . with his lights off.”

Although the commission ruled that this was merely a negligent act, the finding, nevertheless, is

a rejection of Patterson’s express testimony. Likewise, the commission accepted Harris’s

testimony concerning the vehicle’s tracking data. That evidence established, contrary to

Patterson’s testimony, that Patterson’s vehicle had not traveled more than two-tenths of a mile

when it was hit.

        The rejection of specific portions of Patterson’s testimony brought into question

Patterson’s version of the entire incident. Disbelieving Patterson’s testimony, the commission

found no circumstances constituting a medical emergency or any other emergency. We hold that

the commission’s finding that Patterson’s stop was not the result of an unforeseen combination

of circumstances is based upon a rejection of his explanation and upon other credible evidence.




                                                  -9-
       Although Trooper Crowder mentioned Code § 46.2-888, which provides that “[n]o

person shall stop a vehicle in such manner as to impede or render dangerous the use of the

highway by others, except in the case of an emergency, accident, or a mechanical breakdown,”

he indicated this statute had no bearing in this case because Patterson did not stop on the

highway. Because the commission did not discuss Code § 46.2-888 or impeding traffic by

stopping on the highway, we need only address the violation of Code § 46.2-830. See Hot Shot

Express, Inc. v. Brooks, 264 Va. 126, 133-34, 563 S.E.2d 764, 768 (2002) (noting that Code

§ 46.2-888 pertains to stopping on the highway). We hold, therefore, that credible evidence

supports the commission’s finding that Patterson’s use of the shoulder of the highway was not an

emergency and violated Code § 46.2-830.

                                         WILLFULNESS

       Patterson contends that because he did not have a “wrongful intention” in stopping on the

shoulder, his conduct could not be considered “willful.” Patterson argues that he believed his

need to urinate constituted an emergency and that this misunderstanding means he did not

willfully violate the statute. The employer responds by pointing to the commission’s references

to Patterson’s lack of credibility and argues that this is a factual issue because the commission

did not believe that Patterson considered his situation to be an emergency.

       The statute requires the employer to show the act was willful in order to succeed on this

defense. “In common usage the word ‘willful’ is considered synonymous with such words as

‘voluntary,’ ‘deliberate,’ and ‘intentional.’” McLaughlin v. Richland Shoe Co., 486 U.S. 128,

133 (1988) (citation omitted). Thus, the principle is well established that in the civil context

“willful” denotes “an act which is intentional, knowing, or voluntary.” Angstadt v. Atl. Mut. Ins.

Co., 254 Va. 286, 293, 492 S.E.2d 118, 122 (1997); see also RF&P Corporation v. Little, 247

Va. 309, 320, 440 S.E.2d 908, 915 (1994) (holding that “[c]onduct is ‘willful’ when it is

                                               - 10 -
intentional”). Equally well established is the rule that the commission’s finding that conduct is

willful is a fact determination. Ivey v. Puckett Constr. Co., 230 Va. 486, 488, 338 S.E.2d 640,

641 (1986).

           The commission found that Patterson “acted deliberately in pulling onto the shoulder” of

the highway. In an early workers’ compensation case, involving a safety rule, the Supreme

Court equated “willful” and “deliberate.”

                     “The meaning of the word (wilful) . . . is ‘with deliberate
                  intent.’ If the employee knows the rule, and yet intentionally does
                  the forbidden thing, he has ‘wilfully failed to obey’ the rule. It is
                  not necessary for the employer to show that the employee, having
                  the rule in mind, determined to break it; it is enough to show that,
                  knowing the rule, he intentionally performed the forbidden act.”

Riverside & Dan River Cotton Mills v. Thaxton, 161 Va. 863, 872, 172 S.E. 261, 264 (1934)

(citations omitted).

           Patterson testified that he knew that state law limited the use of the emergency lane. The

evidence proved, therefore, he knew the law and intentionally stopped on the shoulder. When he

stopped on the shoulder without an emergency need and then drove back onto the interstate

highway, this conduct was a deliberate action and was a sufficient basis upon which the

commission could find he acted willfully. See King v. Empire Collieries Co., 148 Va. 585, 590,

592, 139 S.E.2d 478, 479-80 (1927) (applying the statutory term “willful” in the context of a

failure or refusal to perform a duty required by statute); see also VEPCO v. Kremposky, 227 Va.

265, 269-70, 315 S.E.2d 231, 233-34 (1984) (explaining the holding in King). It is in this

context that the commission found that Patterson’s injuries “were the result of his willful

misconduct.” Thus, we hold the evidence was sufficient to support the commission’s finding

that Patterson’s act in stopping was “willful” and a failure to perform in accordance with the

statute.



                                                  - 11 -
                                          CAUSATION

        Patterson contends that his merger onto the highway caused the accident, not his stopping

on the shoulder. Valley Proteins argues that Patterson’s improper stop at the bottom of a hill in

the emergency lane proximately caused the accident because the accident was the foreseeable

result of the stop.

        Whether Patterson’s misconduct proximately caused the accident is an issue of fact. See

Uninsured Employer’s Fund v. Keppel, 1 Va. App. 162, 165, 335 S.E.2d 851, 852 (1985).

Proximate cause is the “‘act or omission which, in natural and continuous sequence, unbroken by

an efficient intervening cause, produces the event, and without which that event would not have

occurred.’” Coleman v. Blankenship Oil Corp., 221 Va. 124, 131, 267 S.E.2d 143, 147 (1980)

(quoting Beale v. Jones, 210 Va. 519, 522, 171 S.E.2d 851, 853 (1970)). Thus, the question on

appeal is whether there was sufficient evidence for the commission to find that the accident was

the natural result of parking unlawfully on the shoulder of the road.

        Patterson correctly argues that the accident occurred while his truck was moving. One of

the risks that parking on the shoulder of the highway creates, however, is that a collision with

fast-moving vehicles will occur when the driver accelerates from a stop to merge with traffic.

Patterson’s act of merging into traffic necessarily followed his act of deliberately stopping on the

side of the road. Therefore, we hold sufficient evidence supports the commission’s finding that

stopping on the side of the road began a natural and continuous sequence that proximately

caused the accident.

        In summary, the evidence was sufficient to support the commission’s findings that

Patterson violated the statute by using the shoulder of the highway for a non-emergency despite

posted signs designating the shoulder for emergency use only, that this violation was willful, and




                                               - 12 -
that it was the proximate cause of his accident. Accordingly, we affirm the commission’s

decision.

                                                                         Affirmed.




                                             - 13 -
