                   COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Felton and Senior Judge Overton
Argued at Chesapeake, Virginia


HERB O. BYAM
                                         MEMORANDUM OPINION* BY
v.   Record No. 2783-02-1            JUDGE RUDOLPH BUMGARDNER, III
                                              APRIL 8, 2003
NORTH STAR CONSTRUCTION CORPORATION AND
 AMERICAN INTERSTATE INSURANCE COMPANY


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Allen Lotz (Jeffrey F. Brooke; Huff, Poole &
          Mahoney, P.C., on briefs), for appellant.

          William C. Walker (Christopher J. Wiemken;
          Taylor & Walker, P.C., on brief), for
          appellees.


     Herb O. Byam appeals the Workers' Compensation Commission's

denial of his claim for benefits on the ground that he willfully

violated a known safety rule, Code § 65.2-306.    North Star

Construction Corporation appeals the commission's determination

that the worker's injury arose out of the employment.    We

conclude credible evidence supports the commission's finding

that the worker willfully violated a safety rule and affirm.

     The worker was an experienced steel worker employed by the

employer, a heavy highway construction company.   On June 29,

1999, he was working on a bridge twenty-five feet off the ground


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
installing fall protection equipment.    The worker fell and

sustained head and brain injuries.   He has no recollection of

the fall, and no eyewitnesses observed him before the fall.

     The deputy commissioner initially found the injury did not

arise out of the employment and denied benefits.    The full

commission reversed and remanded the case.    On remand, the

deputy commissioner denied benefits because the worker willfully

violated a safety rule, and the full commission affirmed.

     To establish a willful violation of a safety rule, the

employer must prove:   (1) the rule was reasonable; (2) the rule

was known to the employee; (3) the rule was promulgated for the

employee's benefit; and (4) the employee intentionally performed

the forbidden act.   Code § 65.2-306 1 ; Buzzo v. Woolridge

Trucking, Inc., 17 Va. App. 327, 332, 437 S.E.2d 205, 208

(1993); Spruill v. C.W. Wright Constr. Co., 8 Va. App. 330, 334,

381 S.E.2d 359, 360-61 (1989).   The worker concedes the evidence

established the first three elements of the defense.     He

maintains no evidence showed he willfully violated the rule.

     The issue of willful misconduct is a question of fact

binding on appeal if supported by credible evidence.     Brockway

v. Easter, 20 Va. App. 268, 271-72, 456 S.E.2d 159, 161 (1995).


     1
       Code § 65.2-306(A)(5) provides that "[n]o compensation
shall be awarded to the employee . . . for an injury . . .
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
. . . ."
                             - 2 -
We review the evidence in the light most favorable to the

employer but do not retry the facts or reweigh the preponderance

of the evidence.     Wagner Enters., Inc. v. Brooks, 12 Va. App.

890, 894, 407 S.E.2d 32, 35 (1991).

     The employer's safety rule provided that when working six

feet above the ground or higher, workers must wear a safety

harness.   The lanyard of the harness must be attached to a fixed

point at all times.    The lanyard was a five-foot cord with a

hook at each end.    The worker hooked one end to his harness and

the other to a fixed point.

     The worker knew the consequences of failure to comply with

the rule and was conscientious about complying with it.    He even

provided his own harness and quality lanyard because, "It's my

life, my lanyard."    He conceded the employer required him to be

tied-off at all times while working on the bridge.    He also

recalled being tied-off at all times on this job.

     The worker was installing a fall protection system on a

bridge.    Five steel girders or I-beams had been set across two

concrete abutments.    The girders were secured by "X" shaped

cross frames, with steel horizontal members at the top and

bottom.    The worker's task was to secure "L" shaped stanchions,

temporary vertical posts, with bolts to the top of each girder.

Once the stanchions were secured, a safety cable or lifeline was

suspended from one abutment to the other.    The workers

installing the deck of the bridge would then hook to the cable.
                             - 3 -
     To install the stanchions, the worker would walk to the

base of the girder, hook his safety harness onto the cross

frame, and climb either the cross frame or a ladder 2 to the top

of the girder.   The top of the girder was approximately nine

feet above the abutment and twenty-five feet above the road

below.   The worker would sit on the girder and secure the bolts

into pre-drilled holes.

     Stanchions five and four had been completely secured,

stanchion three was only partially bolted, and stanchions two

and one were not yet in position.   The defendant landed on the

ground between girders three and two.   John Liles, company

executive vice president and safety officer, concluded, "If Mr.

Byam fell from that bridge, he was installing fall protection at

the time that he fell."    That was the only work being done on

the bridge at that time.   The worker's harness was cut from his

body after the fall and admitted into evidence.   It was intact.

Both lanyard hooks were attached to a hook on the back of the

harness.   The harness and lanyard were not broken or defective.

     The deputy concluded the worker was bolting stanchions as

assigned, he was not tied-off to a fixed object, and his injury

was caused by the failure to be tied-off.   The commission's

finding is a reasonable inference from the fact that the

worker's harness and lanyard were intact, he was assigned to


     2
       When the worker fell, there was a ladder in place at
stanchion four.
                             - 4 -
bolt stanchions, bolting the stanchions was the only job being

performed at that time, and he fell where the work was to be

performed.

     The employer is not required "to prove that the employee

purposefully determined to violate the [safety] rule, only that,

'knowing the safety rule, the employee intentionally performed

the forbidden act.'"     Buzzo, 17 Va. App. at 332, 437 S.E.2d at

208-09 (quoting Spruill, 8 Va. App. at 334, 381 S.E.2d at 361).

     In Mills v. Virginia Elec. & Power Co., 197 Va. 547, 90

S.E.2d 124 (1955), the worker was injured while securing an

energized wire.    The worker knew the wire was "live" and that he

was required to wear rubber gloves when working on live wires.

Id. at 549, 90 S.E.2d at 125.    The Court found the defendant

guilty of willful misconduct because he was not wearing his

gloves.   In denying his claim, the Court noted that

             "If an employee with years of experience
             . . . is to be allowed to recover
             compensation on account of an injury due
             directly to his disregard of an absolutely
             fundamental measure of safety, which he
             admits he well knew, then there would be no
             class of cases in which the provisions of
             . . . [Code § 65.2-306] of the act would
             apply."

Mills, 197 Va. at 552, 90 S.E.2d at 127 (quoting Tate v.

Blackwood Coal & Coke Co., 11 O.I.C. 38, 41 (1929)).

     In this case, the safety rule applied, the worker was an

experienced steel worker, knew about the rule and its purpose,

but was not in compliance when he was injured.    The evidence
                             - 5 -
supports the commission's finding that the employer proved the

affirmative defense.

        The worker contends he rebutted the defense of violation of

a safety rule by either showing the rule was not enforced or the

job required him to be unhooked at times.      Buzzo, 17 Va. App. at

332, 437 S.E.2d at 208.

        The worker contends he could not perform his task while

tied-off to a fixed point at all times.     He testified it was not

possible to be tied-off "[w]hen you're switching the lanyard

from one safe point to the other."      Jesse Konefal, an employee

at the time, testified that the job required the worker to

unhook the lanyard "to get from where you were standing to where

you needed to be working."

        Liles testified a worker could secure the stanchions in

place while tied-off at all times.      A videotape shows the job

supervisor, Steve Marciniak, performing the worker's assigned

task.    At no time was the worker unhooked when working over a

height.    The assigned task did not contemplate movement from one

point to another while above the ground.

        The deputy commissioner resolved any conflict in the

evidence in favor of the employer.      Credible evidence supports

the deputy's conclusion that each stanchion could be bolted

while the safety harness was secured to a fixed point.     There

was no legitimate reason for the worker not to use the safety

device.
                                - 6 -
     The worker also maintains the safety rule was not strictly

enforced.    Whether the safety rule was not strictly enforced is

a mixed question of law and fact, and the commission's ruling is

not binding on appeal.    Virginia Elec. & Power Co. v. Kremposky,

227 Va. 265, 270, 315 S.E.2d 231, 234 (1984).

     In Gwaltney of Smithfield, Ltd. v. Hagins, 32 Va. App. 386,

393-94, 528 S.E.2d 162, 166 (2000), the worker injured her hand

while cleaning out debris from a machine.   The employer defended

on the ground that she violated their safety rule by using her

hands to do so.   The worker successfully rebutted the defense

because she testified her supervisor told her to use her hands,

she had observed him doing so, and other witnesses corroborated

her testimony.

     In this case, the worker testified that wearing a harness

and being attached all the time when working on the bridge was

"the law."   Liles and Marciniak both testified the safety rule

was enforced.    State highway construction inspectors were at the

site daily and would have reported safety violations.     No

violations were reported.   Konefal's testimony was the only

evidence that the safety rule was not enforced.   He testified

that he understood Marciniak wanted the workers to get the job

done quickly, and if that included failing to tie-off for

certain jobs, so be it.   The commissioner believed the

employer's evidence.   It was credible evidence and supports the

finding that the safety rule was strictly enforced.
                             - 7 -
     We conclude the commission did not err in finding that the

worker violated a known safety rule and failed to show he was

justified in doing so or to show the rule was not strictly

enforced.   Accordingly, the commission's decision is affirmed. 3

                                                          Affirmed.




     3
       Since we find the worker was barred from receiving
benefits, we do not address the employer's cross-appeal that the
worker's injury did not arise out of the employment.

                              - 8 -
