                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Elder and Humphreys
Argued at Richmond, Virginia


DONALD L. PITT, JR.
                                                                MEMORANDUM OPINION * BY
v.     Record No. 1956-11-2                                       JUDGE LARRY G. ELDER
                                                                     MARCH 27, 2012
SHACKLEFORD’S RESTAURANT
 AND VIRGINIA COMMERCE GROUP
 SELF-INSURANCE ASSOCIATION, LANDIN, INC.


              FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                 Jean M. McKeen (Tomlin & McKeen, PLLC, on brief), for
                 appellant.

                 R. Ferrell Newman (Newman & Wright, on brief), for appellees.


       Donald L. Pitt, Jr. (claimant), appeals from a decision of the Workers’ Compensation

Commission denying his claim for benefits from Shackleford’s Restaurant (employer) for a hand

injury he sustained while cleaning a meat slicer. On appeal, he contends the commission erred in

holding employer had adopted a safety rule forbidding cleaning the machine without unplugging

it and that, even if it had adopted a safety rule, the evidence failed to prove he knew of the rule at

issue or that he intentionally violated it. Claimant also contends his actions did not constitute

willful misconduct because employer did not enforce the rule. We hold credible evidence

supports the findings that claimant intentionally violated a known safety rule and that employer

enforced the rule at issue. Thus, we affirm the commission’s denial of benefits.




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

       Code § 65.2-306 provides in relevant part that “[n]o compensation shall be awarded to

the employee or his dependents for an injury or death caused by . . . [t]he 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.” Code § 65.2-306(A)(5). The statute also provides

that “[t]he person or entity asserting any of the defenses in this section shall have the burden of

proof with respect thereto.” Code § 65.2-306(B). Thus, to successfully raise a defense of willful

misconduct under Code § 65.2-306(A)(5), the employer must establish “(1) that the safety rule

was reasonable, (2) that the rule was known to [the employee], (3) that the rule was for [the

employee’s] benefit, and (4) that [the employee] intentionally undertook the forbidden act.”

Spruill v. C.W. Wright Constr. Co., 8 Va. App. 330, 334, 381 S.E.2d 359, 360-61 (1989).

       The General Assembly included the word “willful” in the statute to promote the

beneficent purposes of the Act by not penalizing workers, particularly those “who could neither

read, write, nor speak the English language,” who violated a rule from “mere ignorance” without

“moral blame.” King v. Empire Collieries Co., 148 Va. 585, 592, 139 S.E. 478, 480 (1927) (“If

the employee had knowledge of the statute, or it can be shown that proper steps had been taken

to bring home to him notice of it, he cannot recover, for he cannot recover under one statute

enacted for his benefit for an injury proximately arising out of the violation of another statute

which he has wilfully neglected or refused to obey.”); see also 2 Lex K. Larson, Larson’s

Workers’ Compensation Law § 35.02 (Matthew Bender rev. ed. 2011) (“The idea that the

employee’s knowledge of the rule must be actual instead of constructive is a direct corollary of

the requirement of ‘willfulness.’ One cannot deliberately break a rule unless one in fact knows

the rule exists.”). “[T]he evidence is sufficient to establish [a willful violation] defense if ‘the

employer can show that [the employee] had knowledge of the statute [or rule], or that reasonable

                                                 -2-
steps had been taken to bring home to him notice of its existence.’” 1 Va. Elec. & Power Co. v.

Kremposky, 227 Va. 265, 269, 315 S.E.2d 231, 234 (1984) (quoting King, 148 Va. at 592, 139

S.E. at 480). “The common law defense of contributory negligence is abolished by the Act. . . .

Negligence, regardless how gross, does not bar a recovery for workers’ compensation benefits.”

Uninsured Employer’s Fund v. Keppel, 1 Va. App. 162, 164-65, 335 S.E.2d 851, 852 (1985); see

Buzzo v. Woolridge Trucking, Inc., 17 Va. App. 327, 333, 437 S.E.2d 205, 209 (1993).

“Evidence of a hazardous act involving obvious danger, without more,” is insufficient to bar

recovery under the Act. Harbin v. Jamestown Village Joint Venture, 16 Va. App. 190, 196, 428

S.E.2d 754, 758 (1993). Finally, evidence “that the rule was not kept alive by bona fide

enforcement” will defeat an employer’s defense of willful misconduct based on the violation of a

safety rule. Buzzo, 17 Va. App. at 332, 437 S.E.2d at 208.

       Whether an employee “knowingly violated [a safety rule] is a mixed question of law and

fact” reviewable on appeal. Owens Brockway v. Easter, 20 Va. App. 268, 271-72, 456 S.E.2d

159, 161 (1995). Factual findings made by the commission, if supported by credible evidence in

the record, will not be disturbed on appeal. E.g. Rusty’s Welding Serv., Inc. v. Gibson, 29


       1
           One commentator has cautioned as follows:

                [O]ne should not lose sight of the possibility that, if immunity
                could be purchased merely at the cost of printing and posting rules,
                the employer might be tempted to post rules forbidding every
                conceivable potentially injurious practice. Anyone who has been
                in a factory knows that there is quite enough reading matter of that
                character already available, what with warnings, cautions,
                prohibitions, and keep-out signs all over the place. It is not unfair
                to expect the employer to prove, in the light of the disastrous
                impact of these defenses on the employee, that it did indeed bring
                the rule to the conscious attention of the employee by something
                more than the constructive notice that goes with pinning a set of
                regulations on a bulletin board.

2 Larson, supra, § 35.02 (noting that failure to read a posted rule might be negligence but that
“its violation could not be willful unless it had been effectively brought home to [a] claimant”).
                                                 -3-
Va. App. 119, 127, 510 S.E.2d 255, 259 (1999) (en banc). In determining whether credible

evidence exists to support the commission’s findings of fact, “the appellate court does not retry

the facts, reweigh . . . the evidence, or make its own determination of the credibility of the

witnesses.” Wagner Enters. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).

        A. EXISTENCE OF A RULE KNOWN TO AND VIOLATED BY CLAIMANT

       The evidence, viewed in the light most favorable to employer, establishes that although

employer did not train claimant concerning the operation and cleaning of the slicer, claimant had

used a slicer in his previous employment. The evidence also established that safety rules

governing the operation of the slicer were posted directly above it and, most importantly, that

claimant admitted he “knew . . . [he was] supposed to unplug the machine before cleaning it.”

This evidence supported the commission’s implicit finding that claimant was familiar with the

safety rule at issue despite his statement to the contrary. See, e.g., United Airlines v. Hayes, 58

Va. App. 220, 238, 708 S.E.2d 418, 427 (2011) (“In determining the credibility of any witness,

the fact finder may accept the parts of a witness’ testimony it finds believable and reject other

parts as implausible.”).

       The evidence also supported a finding that claimant intentionally violated the known

safety rule. Although claimant testified he unplugged the slicer before cleaning it and implied

that someone else must have plugged it in again, the evidence, viewed in the light most favorable

to employer, is that claimant, who had already removed the slicer’s visible safety equipment and

handle for cleaning, was away from the machine for no more than five to ten seconds and that

this provided an insufficient amount of time for anyone else to plug the machine back in.

Claimant admitted that no one would have attempted to operate the slicer without its handle.

Based on the fact that the slicer came on when clamant began to clean it, the commission was

entitled to disbelieve his testimony that he unplugged the machine before cleaning it. This

                                                -4-
evidence supported the commission’s finding that claimant, by cleaning the slicer without

unplugging it, willfully violated a known safety rule. See Riverside & Dan River Cotton Mills,

Inc. v. Thaxton, 161 Va. 863, 870-72, 172 S.E. 261, 263-64 (1934) (reversing award of benefits

to family of electrician who was killed when he unintentionally came into contact with a power

line while replacing light bulbs, which he undertook without first disconnecting power to

adjoining power lines as required by a rule of his employer).

      B. VALIDITY OF DEFENSE BASED ON LACK OF ENFORCEMENT OF RULE

       Claimant contends the evidence defeats employer’s willful-violation-of-a-safety-rule

defense for his failing to follow the rule requiring unplugging of the slicer before cleaning,

because it shows employer did not enforce the rule directing employees “NEVER [To] Touch

This Machine Without Training And Authorization From Your Supervisor” and to “Read

Owner’s And Operator’s Manual First.”

       Whether the evidence is sufficient to demonstrate a safety rule was or was not strictly

enforced 2 is a mixed question of fact and law reviewable on appeal. Gwaltney of Smithfield,

Ltd. v. Hagins, 32 Va. App. 386, 393, 528 S.E.2d 162, 165-66 (2000). The rationale behind the


       2
          A conflict of law appears to exist in Virginia over whether an employer bears the
burden of proving strict enforcement as part of a willful-violation-of-a-safety-rule defense, or
whether, once an employer establishes the willful violation of a safety rule, the burden shifts to
the claimant to rebut that defense by proving employer’s lack of strict enforcement. Compare
Peanut City Iron & Metal Co. v. Jenkins, 207 Va. 399, 403, 150 S.E.2d 120, 123 (1966) (“[I]n
order for [the employer and carrier] to prevail upon the defense of ‘wilful misconduct’, on the
ground that claimant intentionally violated a well known safety rule, they had to show that the
rule was strictly enforced by the employer.” (emphases added)), with Buzzo, 17 Va. App. at 332,
437 S.E.2d at 208 (“[T]he employee may rebut the defense by showing that the rule was not kept
alive by bona fide enforcement . . . .” (emphasis added)), quoted with approval in Gwaltney of
Smithfield, Ltd. v. Hagins, 32 Va. App. 386, 393, 528 S.E.2d 162, 165 (2000), and Adams ex rel.
Boysaw v. Hercules, Inc., 21 Va. App. 458, 464, 465 S.E.2d 135, 138 (1995).
         We need not resolve this issue because claimant does not contend employer failed to
enforce the safety rule requiring unplugging the slicer before cleaning. As discussed infra in the
text, claimant’s claim of lack of enforcement pertains to a different slicer safety rule which we
hold does not implicate the rule claimant was found to have violated.

                                                -5-
principle that non-enforcement negates proof of a willful violation is fairness to a claimant.

Where “violations [of a rule] occur under circumstances charging the employer with knowledge

and acquiescence,” Kremposky, 227 Va. at 270-71, 315 S.E.2d at 234, the rule is “not kept alive

by bona fide enforcement,” Buzzo, 17 Va. App. at 332, 437 S.E.2d at 208, and the employer

cannot expect a claimant to attach to the rule any more importance than the employer does. This

principle, however, does not necessarily relieve a claimant of the duty of following all of an

employer’s related safety rules.

       Here, claimant avers, in essence, that employer’s failure to enforce one rule regarding a

particular piece of machinery necessarily negates an employee’s duty to follow all rules related

to that piece of machinery. We reject that assertion and hold, on the facts of this case, that

employer’s failure to enforce the safety rule requiring employees to read the slicer manual and

undergo training prior to operating the slicer does not negate employer’s more specific safety

rule requiring employees to unplug the slicer prior to cleaning it. An employer’s failure to

enforce its rule requiring training before operating a particular piece of equipment may be

relevant to determining whether the employee had knowledge of the existence of more specific

safety rules applicable to that equipment, which is critical to determining whether the employee’s

failure to follow a particular rule was willful, see Kremposky, 227 Va. at 269, 315 S.E.2d at 234;

King, 148 Va. at 592, 139 S.E. at 480, but that lack of training does not permit an employee to

infer employer’s failure to enforce all rules related to that piece of equipment. This is

particularly true on the facts of this case, which proved claimant learned how to operate a slicer

in his previous employment and knew he was supposed to unplug the machine before cleaning it.

Thus, the record fails to establish any error on this issue.




                                                 -6-
                                               II.

       For these reasons, we hold credible evidence proves claimant’s willful violation of a

known safety rule and does not prove employer failed to enforce the rule. Thus, we affirm the

commission’s denial of benefits.

                                                                                       Affirmed.




                                              -7-
